This article originally appeared in the March 2022 issue of Security Business magazine. When sharing, don’t forget to mention Security Business magazine on LinkedIn and @SecBusinessMag on Twitter.
“How do you know what to do, if you don’t know what you did?” These are the words of health and fitness trainer Tony Horton, famed creator of the P90X workout program. He is referring to the need to record, in writing, the amount of weight you use and how many repetitions you do when performing weight training exercises. By recording this information, you will be better prepared the next time you do that same exercise.
“Document everything” should be how we articulate this same concept in the business world. Memories fail, so good record keeping is important for any organization.
These are not controversial concepts – they are fundamental; however, in my legal practice, I am periodically disappointed to learn that not everyone abides by these well-founded rules.
The Importance of Documentation in Security
In the security industry, we provide life safety products and services. So, arguably, the stakes are even higher than for a traditional business. Yet, some companies still fail to train their personnel on appropriate record keeping. When a lawsuit happens, these deficiencies come to light – and what might otherwise be readily provable with appropriate record keeping becomes much more difficult to prove.
Suppose your company sells and installs residential and commercial security systems. Do you document what was offered, what was sold, and where it was installed? Have you consulted with legal counsel on the best way to document these details? Do you train your people to prepare such documents? Do you train them on the implications for them and the company if they do not document these details? You should be doing all of these things.
A Commercial Case in Point
Years ago, I defended one of the largest security companies in the country against a claim brought by a major state university. Underlying the claim was the loss of research samples stored in commercial freezers in the biomedical department of the university. A rise in temperature (alleged to be from sabotage, which is a story for another day) was not detected by the installed alarms because the alarm relay failed. Multi-million-dollar claims were made by the university and a professor – largely based on lost research grant funding.
We presented many defenses in that case – one of which is particularly relevant here. During the sales process, the security company documented that it offered to sell and install a system which, instead of relying on the relay hardware in the freezers, would deploy a temperature probe. If the temperature rose to an unacceptable level, the probe would trigger an alarm without the need to rely on the relay in the freezer unit.
The university declined that option because of cost, as was their right. However, the security company was able to show, among other defenses, that they offered a more secure and reliable option to the customer that was declined.
Residential Documentation Best Practices
The lessons learned apply equally to residential installations. If your company sells and installs security devices, you must create a record of what device was sold and where it was installed.
It is not enough to use general labels to record where a device was installed, such as “door.” Instead, you should be reasonably descriptive, such as “front door,” “foyer door,” “garage door,” or “back door” – as well as other suitable descriptions depending on the size and configuration of the residence.
These days, many security devices are wireless and can be moved easily by the customer. This makes it even more important to document where you installed the devices – so that if a loss results, you can substantiate where you installed it.
Similarly, just like in the commercial freezer case, a security company should adopt practices and procedures to memorialize what is offered to customers and what they declined to purchase. Nearly every security case I have litigated involves a customer claiming that they would have purchased anything and everything to secure their home or business – as if cost was no impediment. This is seldom the case.
Customers are generally cost-conscious and routinely decline to purchase additional equipment; however, if you do not document what was offered and what was declined, you are leaving the issue to memory and inviting a fight over who is more credible – a customer who has allegedly suffered a loss or the installing technician.
Make Life Easier
When I conduct training for my clients, I often preview for them that the failure to be meticulous with record keeping in the field can lead to uncomfortable cross-examination in any resulting lawsuit. Better to be prepared for questioning under oath, better not to rely on your memory, better to create the records necessary to defend the company and yourself.
Again, quoting famed fitness trainer Tony Horton: “In the long run, the easy way makes life harder, and the harder way makes life easier.”
Make life easier. Document everything. You will be glad you did.
Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at [email protected].