I am involved in the ABA Forum on the Construction Industry’s initiatives to bring various social media to the forefront of our group’s marketing and development activities. This past week, leadership asked us to develop and draft a “best practices protocol” for our work on this issue. After reviewing our charge, I am more and more convinced that owners, developers, contractors, and suppliers need to implement a similar protocol for their development in construction practices.


What is a best practices protocol?

Just as it sounds … it is a written protocol that outlines the best practices for success on a project, event or task.  In the construction context, it might be a "Best Practices Protocol for Document Management" or "… for Handling Work Injuries."  It contains the steps taken in order to achieve the successes from any given set of circumstances.  It also contains the lessons learned from the failures.

Why would you create a best practices protocol?

In its simplest terms, you would want to create such a written document in order to pass on to subsequent project managers and team leaders the operating procedures and protocols that led to the success or failure of your particular project. 

Is the best practices protocol discoverable in subsequent litigation?  Any lawyer worth his weight in gold would give you the only correct answer … it depends!  The real issue here is whether a party’s "self-critical analysis" can be used by the opposing party as evidence of liability, breach of contract or violation of some standard of care.  The courts have treated the issue differently, but here is a good discussion of the discoverability of self-critical analysis documents.  In short, the basic requirements for the privilege are: (1) the information must result from a critical self-analysis undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; and (3) the information must be of the type whose flow would be curtailed if discovery were allowed.

Question:  Are you creating "lessons learned" or "protocols" for ensuring success on you projects?

Image: Brian Hillegas