Proper Documentation: How To Win Lawsuits

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By Kevin P. Foley, Esq.

Failure to have proper documentation regarding your interactions with clients damages your credibility if you are called to testify in a lawsuit. Lack of proper documentation makes the company look sloppy, unorganized, and lends credence to a plaintiff's allegations of negligence and/or breach of contract. If an individual or a company is sloppy with their documents, it is easier for a jury to believe they are sloppy with the way they conduct business, and thus to determine that the allegations against the company are valid. Remember, a jury is made up of eight men and women from all walks of life who use everyday experiences in assessing credibility.

How to Document Your Activity

There is no magic formula for documenting your activities when dealing with clients. However, it is best to include as much information as possible. You should create a separate subfile for each client, including the client's name, physician, address, and phone number. If you have any contact with the client, his physician, or anyone else associated with this client, it should be documented in the file. This can be on a separate "contact sheet," which should include the date, the method of contact (telephone or in person), and a brief synopsis of what occurred.

If the plaintiff makes a complaint regarding your service or anyone else's service, this should be documented. If the complaint is directed towards your service, the plan of action that you took to correct or address the plaintiff's complaint should be listed, thus showing that you are responsive to your client's needs. Likewise, if the plaintiff indicates everything is fine and that he has no complaints, this should also be documented.

The most important aspect of documenting your file and your interactions with your client is to be fair and balanced. The documentation should not be a self-serving report regarding how well your company has cared for your client.

Consider the following example: ABC Company fits Jane Doe with a prosthesis. The president of ABC Company testifies that he went to the client's house on 15 different occasions and the client never complained about the prosthesis. The client, on the other hand, indicates that ABC Company was scheduled to appear 15 times, but only kept six of the appointments. Furthermore, on each appointment, she complained that the prosthesis did not fit properly. Inevitably, something goes wrong, and the client sues ABC Company.

If you are on a jury, whom do you believe? A sympathetic plaintiff or a corporate defendant? Ultimately, the case comes down to an issue of credibility. In order to enhance your credibility, you can support your testimony with documents--or be embarrassed by a lack of documents. If ABC Company testifies it was present on 15 separate occasions and has the notes in its client file to support this fact, it is easier to believe the company. On the other hand, if ABC Company truly went to the client's house on 15 separate occasions but did not keep good records and can only document seven or eight visits, the company loses credibility--and possibly the case.

If you are ABC Company, you are now faced with the situation of a sympathetic plaintiff, poor documentation by your company, and an inability to corroborate your testimony. A jury could conclude that you did not see the client 15 times, you are sloppy with your documentation and your follow-through, and--worst of all--you are lying to the jury. If a jury believes an individual is lying, it not only finds against the person, but also likely will punish him in the form of excess compensatory damages.

Documenting Complaints and Your Response: Why?

A recent study asked people to rate their experience at various hotels. There were three categories. In the first hotel, there were no complaints. In the second hotel, the guests had complaints, which were resolved quickly and to the guests' wishes. In the third hotel, the guests had complaints, which were not resolved. Obviously, the third hotel rated the worst. Surprisingly, the hotel where guests had complaints, but the complaints were addressed quickly and to the guests' satisfaction, ranked the highest. This is because people place a premium on responsiveness. Likewise, if the client does have a complaint, the fact that you responded to it quickly, rather than ignoring it, will benefit you.

Documenting a client complaint does not, by itself, mean that you were negligent. All of your clients have medical issues that required your attention in the first place. If you do not document the complaints and your actions, it will appear that you are making up excuses for your alleged negligence. If you document the client's complaints--and your follow-through--your corporation will appear responsive to complaints. Hopefully, a jury will look at your corporation the same way the hotel guests did in my previous example.

Never Alter Documents

When I prepare clients for a deposition testimony and/or trial testimony, I tell them there is one basic rule from which everything else flows: tell the truth. The quickest way to lose a case is to alter, create, and/or forge documents. This will give rise to a separate cause of action called "spoliation." This is an intentional action, which is not covered by your insurance. While the underlying action of "negligence" may be covered by insurance, a claim for spoliation will never be covered by insurance. It also opens you up to punitive damages, which also are not covered by insurance.

The company that you worked hard to establish and your reputation in the community can be taken away instantly if you alter documents. And, if someone goes to the extra "affirmative" step of creating documents to help with a lie, the punishment by the jury and the judge will be that much more severe.

If You Are Sued

If you are sued in a negligence claim involving a client, you should contact your insurance carrier immediately. You will need to provide your insurance carrier with a complete client file. Most insurance contracts have a "duty to cooperate" clause: if your insurance company asks for information, you must provide it. If you have personal counsel, get them involved immediately.

Lawyers like to think that their skilled advocacy is what wins every case--and skilled advocacy is important. However, just as in poker, you must play the hand you are dealt. The only difference is that, in lawsuits, the parties are allowed to look at their opponent's "hands" through a process called "discovery." If you are sued, one of the first requests made by most plaintiff's attorneys would be a copy of the entire client file. If you follow the above steps and properly document your interactions with the client, you will willingly produce this document. It shows that you are a professional and that you did nothing wrong in this instance. This will bolster your credibility and reduce the value of the plaintiff's claim.

Proper documentation is the hallmark of professionalism and enhances your credibility. And, if you are sued, taking the time to properly document your interactions with your clients can help you win.

Kevin P. Foley, Esq., is a partner in the law firm of Reminger & Reminger Co. LPA. One of the focuses of his practice is medical malpractice. After graduating from Cleveland Marshall Law School in 1992, he clerked for Justice Herbert R. Brown on the Ohio Supreme Court. After this clerkship, he joined Reminger & Reminger.

He can be contacted at Reminger & Reminger Co., LPA, 505 S. High Street, Columbus, Ohio 43215; 614.461.1311; fax: 614.365.7801;kfoley@reminger.com.