Every owner, contractor, subcontractor, engineer, superintendent, and foreman on a construction project should keep and maintain a daily diary that records their personal observations and conversations relating to the project. The key to preparing a good daily diary is to recognize and contemporaneously record those items that may be significant in the future. Rarely will this be accomplished by filling out a form at the end of the day because events get fuzzy and forgotten the longer one waits to make a record, especially at the end of the day. The better approach is to identify those types of items that may be significant in the future and record your thoughts as the items are identified.
The daily diary is essential to a good record keeping system because it often provides the first, and sometimes the only, record of an event, condition, conversation, or observation that supports or negates a claim. Diaries are sometimes used to reconstruct claims that were not recognized when they occurred. In addition, your diary may be helpful to refresh your memory before a claim settlement conference, mediation, deposition, arbitration, or litigation, especially where a long period of time has elapsed between the claim and its resolution.
To keep and maintain a good diary, you should make a conscious effort to fairly and accurately report the relevant facts when they are fresh in your memory. Details are important, but your entries need not be long narratives. Concise sentences, outlines, or bullet points are often sufficient to record your conversations or observations.
1) Timely Entries. The entries in your diary should be written down immediately after observations and communications are made. Memory quickly fades over time. At a minimum, you should record entries on the same day as the observation or communication. Sometimes waiting until the end of the day may be too long to accurately record your observations and communications. It is better to carry your diary with you and make entries periodically throughout the day. Maintaining your diary will be less of an inconvenience if you make entries as they occur because you will not have to reconstruct your day at quitting time. In addition, your entries will be more accurate, have better detail, and be easier to write because you will be recording what you see and hear, instead of searching your memory for what you saw and heard.
2) Accurate Facts. Facts are what you actually see, hear, smell, taste, and touch. Personal knowledge is not necessary. However, your diary should note when you are reporting facts that you did not personally hear or see, along with identifying the person who provided you such facts. Do not draw conclusions, state opinions, or speculate about the cause and effect of a certain fact. Never slant the facts to support a particular position because this could prevent you from adopting a contrary position when additional facts are learned. For instance, an entry in a diary which states “Sub A is delaying the project because he does not have enough workers” may be used to support an owner’s delay claim against you, even though you later discover that the owner was the cause of a concurrent delay. It is better to report, for example, that “Sub A has six workers painting rooms 302, 304, and 306. I told Sub A that he needs to finish the 3rd floor by Friday.” This statement reports the facts, but does not draw a conclusion about the proper number of workers.
3) Objective View. Try to report the facts in an impartial manner that does not assign blame or make disparaging remarks. Never make comments out of frustration, anger, or annoyance. It is important to think about the ways in which your diary may be used to support your position. It may be submitted to the owner, a subcontractor, your insurer, or read in open court. Disparaging remarks could reflect poorly on you and your ability to accurately report the situation. Reporting that “Sub A is totally incompetent to do this type work” may lead a jury to believe that you exaggerate or are hyper-critical if they believe that Sub A’s work was satisfactory. In addition, these types of comments may contradict a position that you take once all the facts are known. You may discover, for instance, that the real reason Sub A is performing poorly is because the specifications are defective. Therefore, it is better to leave the “poison pen” at home, and report the facts from an objective view.
Information included in the daily diary should not be limited by any pre-printed form because you could miss important observations and conversations that are not on the form. It is better if you concentrate on identifying and recording those observations and conversations that could be a factor in a claim situation. This does not mean that you should become a “claims monger,” who exploits every opportunity to make a claim. Claims can go either way. It is just as likely that you will need your diary to defend against a claim, as it is that you will need your diary to support a claim. Thus, you need to record those observations and conversations that may have a possible consequence if a claim is made by anyone on the project.
The following categories should, nevertheless, provide you with ideas and a framework for identifying and documenting those conversations and observations that may be relevant to a claim.
- Weather. Your diary should describe the weather. Changes in the weather should be noted. An entry stating “Cold in the AM; rain in the PM,” is better than “Cold and rainy.” Note any weather from previous days affecting the project. E.g., “Received 1/16” rain, but the excavation is still flooded from last week’s rain.”
- Conversations. Your diary should state the full name and subject of any conversations that you have with the owner’s representative, architect, engineer, subcontractor or supplier whether by telephone or in person.
- Conditions. You should describe any physical materials and their condition that may support or defend against a claim. Physical conditions may be subsurface (rock, sand, clay, soil, underground tanks, groundwater), surface (rock outcrops, boulders, mud, artesian wells), concealed (wood rot, moisture, plumbing leaks, asbestos, mold, mildew, hazardous materials), or undisclosed (lead paint, endangered plants). Do not forget to identify favorable conditions (dry soil, competent subbase). Examples include:
- “Sub A encountered highly weathered rock 10’ below grade between Sta. 1+50 and 2+00. Sub A’s foreman, George Foreman, told me that he felt that he could rip the rock with his D-9.”
- Particular care should be taken to record any conditions that are unusual or different from those shown in the plans and specifications. For example, if a subcontractor discovers an underground storage tank, your diary may state “An underground tank was discovered at 10:00 am. A thick black, oily fluid appeared to have leaked from the tank, and saturated a 10’ radius from the tank. I called Oscar Owner and the EPA at 10:30am. Bill Brown (EPA) and Oscar looked at the tank at 2:00 p.m. I told Oscar that the Project was on hold until a decision on the tank was made.”
- Events. Your diary should describe any events that could result in a claim. Events include any occurrence, happening, episode, or incident that may lead to a claim. You should attempt to identify the area where the event occurred and what occurred after the event. For example:
- “Sub A cut into the power line today at 2:00 p.m.”
- Progress. Your diary should indicate what work is being performed, where it is being performed, and any details affecting the work.
- Visitors. Identify by name any visitors to the site and what they did while they were on the site.
- Safety. Your diary should indicate any accidents or injuries that you witness or hear about, and the actions you took.
- Workmanship. Your daily diary may indicate any quality control issues that you observe.
This list is not intended to be exhaustive, but it provides a good starting point for the type of information that should be included in your daily diary entries.