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Preserving Your Case: Preparing And Retaining Evidence

Most people are familiar with the phrase “it’s not what you know, it’s what you can prove.” Unfortunately, this phrase is too rarely put to practice by small businesses and individuals engaged in business.  In every consultation one of the first questions I ask clients, after they have shared their facts with me, is what documents or other evidence do they have to support their position. Far too often, the answer is a blank stare. It is not that a compelling story and testimony are not effective forms of evidence, but they are typically not the most effective evidence.  Judges and juries are looking at facts, and the best way to demonstrate facts is through physical evidence (e.g.: contracts, account ledgers, e-mails, and letters).


Why is preparing and retaining evidence so important? Without physical evidence, most cases come down to the testimony of the parties involved. Some may wonder: isn’t testimony sufficient since we must testify to the truth?  Physical evidence is important for two very practical reasons: 1) people lie; and 2) the plaintiff (the party who filed the lawsuit) has the burden of proof.

Second, plaintiffs bear the burden of proof.   This fact is important because if a judge indicates that he or she cannot determine who is telling the truth then they must rule for the defendant because the plaintiff bears the burden of proof.  Owing to this fact, the plaintiff must prove to the judge or jury that his or her version of the facts is more likely than not – proving his or her case to a 51% confidence level.  This is not as easy as it sounds. Remember, in most cases where the parties testify in a “he said, she said” manner, the judge will determine that he or she cannot determine whose version is more likely. Therefor evidence is necessary to break the tie.

Now that you know why physical evidence is so important, you may be asking: how do I prepare and retain evidence? While the options are theoretically endless, the most important point is to remember to put everything in writing and record when possible. Here are three quick keys: 1) start with a good, written contract; 2) document everything in writing as a regular business practice; and 3) retain copies of all writings.

  • Start with a well-written contract: Do not enter business relationships without an effective written contract. A written business contract is not only the most effective evidence, it often will prevent litigation. The contract should clearly state the terms (who, what, when, where, price) and clearly identify the obligations of each party. If any doubts or concerns exist regarding the contract, it is best to have an attorney draft or review it. Any changes to the contract should also be done as a written amendment signed by both parties.
  • Document everything in writing as a regular business practice: Think of this habit as accounting and bookkeeping. Any time money exchanges hands it should be documented. For businesses, this means accurate and up-to-date accounting. For individuals, this means, never make a payment in cash without obtaining a written receipt signed by the other party. Always ask yourself this question: how can I prove what is taking place?
  • Retain copies of all writings. Keep a copy of any correspondence or notices you deliver to the other party in addition to any documents received from the other side. Do not assume that the other side will produce a copy of anything you supplied to it. And of course, keeping all documents neatly organized will make the process smoother and save your attorney the hassle of sorting through a pile of papers (and more importantly, save you valuable money).

Preparing and retaining evidence is not only a good business practice, it is also the key to a strong case. Think of it as litigation insurance, because without it you leave yourself, your business, and your assets needlessly exposed. In the all too litigious society in which we live, that is not a risk worth taking.

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