News Column

In Praise of the Paper Trail

June 2002, HISPANIC BUSINESS magazine

By Francisco Ramos Jr.

Who wasn’t watching when certain Enron documents publicly embarrassed the company’s top managers?

Executives sometimes avoid keeping written records, out of concern that their papers might come back to haunt them later. After all, what you write today may be used against you tomorrow – in a court of law.

Still, the benefits of written documentation when dealing with third parties, such as your vendors or customers, far outweigh the pitfalls. By writing letters or e-mails to your business associates after meetings, conversations, and events, you create records to support your position should litigation arise. If you’re still not convinced, consider the advantages of written evidence.

Juries tend to believe documents over witnesses. Documents created before any threat of litigation arises are perceived to be more trustworthy than the recollection of witnesses, who may be seen as having a bias for the party on whose behalf they are testifying. People also tend to believe what is written far more than what is spoken.

“If it wasn’t written down, it didn’t happen.” That old business saying developed because unscrupulous customers or vendors can deny the terms of an agreement if they know it was never put in writing. A simple letter can avert litigation by demonstrating that you have documents to support your view.

Documents serve as a road map for your attorney. Lawyers have a difficult time putting together a case without adequate materials. In the absence of sound documentation, they will need to spend a lot of time (and your money) piecing together information to support your position.

Memories fade. Documents last. A vague memory is no match for the black-and-white reality of a document. Unlike memories, documents don’t fade or distort with time.
Employees leave. Documents stay. In the current business environment, documentation becomes even more important because papers remain even after employees leave the company. An ex-employee with an axe to grind is unlikely to lie in an effort to hurt the company’s position when confronted with documents created while he worked for the company.

Documents refresh memories. At trial, documents serve to refresh the memories of witnesses whose recollection of an event may be vague or mistaken. Under oath, employees generally affirm the content of documents they wrote.

Documents help forestall misunderstandings. Many lawsuits hinge on two people’s differing recollections of the same conversation. Hence the importance of writing letters, memoranda, or notes to verify your understanding of what occurred at a meeting or teleconference (see box, “How to Document an Event”). Letters confirm that the recipient shares your understanding of such events. Avoiding misunderstandings early on may prevent litigation altogether.

Francisco Ramos Jr. is an attorney with the Miami law firm of Clarke Silverglate Campbell Williams & Montgomery, where he practices commercial litigation.

Source: HISPANIC BUSINESS magazine

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