Check out Witnesses Are Overrated - a piece written by Attorney Ned Nicholas, of Vandeventer Black LLP (Bill Franczek's firm). In the article, Mr. Nicholas discusses the key role documentary evidence has over witness testimony in construction litigation.
While the finder of fact (whether Judge, Jury, or Arbitrator) still must see, hear, and believe as reasonable the party's story from at least one witness (preferably a likeable one), our construction cases often swing based upon the contemporaneously prepared project documents.
On some issues, for example, loss of productivity claims, oral testimony often pushes the fact finder to its decision. During one bench trial, I (Tom Dunn) recall walking back upstairs into court during a break following the testimony of my client's foreman wherein he described the working conditions during the winter months. With opposing counsel at my side, I couldn't help but smile (and opposing counsel couldn't help but to shrug) when I heard the courtroom clerk and security officer talking about how horrible it must have been to work that job. I figured if they got "it" enough to talk about it, then the Judge probably did as well. I don't think photos or contemporaneous documents (other than maybe video) could have done what that witness did with his personality.
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