Successful testifying, particularly in maritime cases, requires a peak performance by the expert witness. In order to be effective, two critical events must have occurred.
First, the attorney retaining the expert must have brought him into the case early enough so that all issues which he identifies may be submitted to the court and disclosed to the opposing side as required in the pleading by the rules of the court. If they have not been identified, the court will exclude them from any testimony by the expert upon proper objection by the opposing counsel. The argument to exclude is based upon surprise and the inability of the other side to prepare a defense against the allegations.
Many attorneys feel they want to save money for their client and not hire an expert until it has reached the point that it is obvious that the case will go to trial. Experts are expensive particularly in a complicated case. Attorneys know that about 90% of the cases will settle before trial. Thus they may feel that an expert is an unwarranted expense.
However, settlements are based on the quality of each side's case. If an attorney has "saved money" by not hiring an expert, has he truly identified all of the issues beneficial to his side? The greater the wrong which can be shown by a plaintiff, the more substantial his award. Conversely, the more that it can be shown that the plaintiff was at fault, the greater the probability that the defendant can avoid a major settlement or award.
There is nothing new or startling in this. It is common knowledge. But when the expert is not brought into the case early, he may be precluded from testifying on some of the issues he identifies which the retaining attorney did not identify in the pleadings.
The second event which must take place in order to effectively use an expert is that he must have full access to the facts and evidence of the case. If at all possible, he should visit the scene or the vessel involved. This is necessary so that the expert can identify all the issues AND so that he will not be surprised on cross examination.
There is nothing more deflating to the confidence of an expert than to be asked on the stand if he is aware of some fact that has not been given to him by his side. Not only may it change his opinion, but the hesitancy on the stand while he integrates this new fact and its implications into the rest of the evidence upon which he has based his opinion and testimony, will be evident to the court and may adversely effect his credibility.
We all know that experts are expensive. They charge from $50 to $150 per hour. That may seem a lot to pay to have an expert read the depositions and review the facts when the case may be settled. This would seem to be even a greater consideration when the attorney represents a poor plaintiff and is on a contingent fee bases. But plainly put, a case which should have been won may be lost because the attorney "saved money" by not hiring an expert.
Several of MEC's experts have shared with us incidents where the award for their side was adversely effected because they were brought in at the last moment or where they were not given all the facts.
Captain John Blank, an Associate who we have referred on many towing cases and the author of MODERN TOWING, a book soon to be released by Cornell Press, told us about two of his recent cases.
In one case, seaman X, the plaintiff, sued towing company "Black". The company's tug was entering port towing a barge returning from a dumping ground. Seaman X while heaving a synthetic hawser around a capstan, slipped and fell breaking his ankle. The defense pleaded that seaman X had been inattentive and should not have fallen. They also produced the fact that he had broken the same ankle while playing ice hockey in high school.
While the plaintiff attorney knew of this injury, he did not tell this to the expert. Although there were no weather notations in the tug's log, the expert found that the weather was extremely rough when seaman X fell. He also found that there was no other seaman on the tug at that time. This was a lack of an adequate crew. It was also an indication of "lack of proper manpower - to perform a particular task on the ship." This places the label of unseaworthiness on the tug. In addition, the expert found that the tug captain had unnecessarily commenced to haul in the tug's hawser in an exposed area not the one normally used by tows to shorten hawser. Also, the tug's captain had failed to report the injury to the Coast Guard as required.
These facts were inadmissible when the expert attempted to present them. The plaintiff's attorney had not included these issues in his pleadings. Based on the plaintiff's prior injury, the lack of any evidence of substantial fault by the tug, the jury gave the plaintiff only a small award.
Had the expert been hired earlier and given all of the facts, and had the pleading been amended to include them, the plaintiff may have received a substantial award for his injuries.
In another case, Captain Blank was retained in the early stages of the case and relates the outcome.
The owners of a large RoRo/Container ship were being sued for three million dollars by a tug seaman. He alleged that the ship's crew had carelessly and purposely let go the tug's line in such a manner that it became fouled in the tug's propeller. This caused the seaman who was retrieving the line to be thrown and jammed against the tug's rail. He received multiple fractures and permanent injuries.
With adequate time to prepare, the expert with the defending attorneys hired another tug and using a similar ship, reenacted this maneuver recording it on video tape. The tape, properly disclosed during discovery, was accepted by the court and replayed before the jury. While the jury awarded the plaintiff one and a half million dollars, it was split between the shipping company and the towing company much to the relief of several P & I clubs.
These are but two of the many examples which show the necessity of bringing an expert into the litigation team at an early stage. The several thousand dollars paid the expert may result in the gain or loss of hundreds of thousands of dollars for the client.
In some cases, an expert will show a plaintiff attorney that his client does not have a case. Better to learn of this before the attorney has spent weeks preparing for a case which he has little chance of winning and for which he will thus receive no payment. In addition to Captain Blank, MEC has towing experts located throughout the United States.
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