 |
Proper Documentation: How To Win Lawsuits
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. 
Table Of Contents - August 2003
|
|
