Articles
EXCHANGE
Vol. 13, No. 1
March 1997
Marine Surveyor Reports in Litigation:
"Anything You Write Can and Will be Used Against You"
by David Farrell, Jr.
Here's a Miranda Warning for marine surveyors: Anything you write can and will be used against you in a court of law. You already knew that; so what else is new? Actually not much, but it's nonetheless worth reviewing some of Miranda's corollaries.
Corollary #1: When a claim looks like it's headed for litigation, hold off issuing a written report as long as possible!
If you end up as an expert witness, your formal, written report will be critical evidence in the courtroom. Anything you wrote about the case beforehand is probably discoverable by the other side too. And if what you wrote earlier was based on incomplete or inaccurate information, opposing counsel will question your investigation and discredit your conclusions on cross-examination. So if you do issue a preliminary report, to be supplemented on review of additional information, put that in writing.
Sometimes the attorney you are working with will tell you not to issue anything written. If you are in state court, the chances are you will be under no obligation to put your thoughts down on paper. Instead, the attorney will prepare interrogatory answers that identify you as an expert witness and state "the subject matter on which the expert is expected to testify . . . the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion." See, e.g., Massachusetts Civil Procedure Rule 26(b)(4)(A)(i).
In an effort to get expert information "straight from the horse's mouth," most federal district courts have adopted 1993 amendments to the Federal Rules of Civil Procedure. In contrast to state court, an expert witness in federal court must now provide the other side with a written report prepared and signed by the witness. The report shall contain "a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Federal Civil Procedure Rule 26(a)(2)(B).
Whether you find yourself in state or federal court, the best way to serve your client is to get a full grasp of the entire case before you tell the other side what you think. Talk freely with your client and attorney by telephone, and also with the claims handler if you were appointed by an insurance company, exchanging information and theories with them. Assess newly discovered information from the other side as the case evolves, fitting it into your overall concept while fine-tuning your approach. And wait until you know as much as you possibly can before casting your opinion in stone.
Corollary #2: Know the legal standard (i.e., requisite strength) for your opinion before formulating it.
In general, witnesses cannot testify regarding their opinions; only expert witnesses can. But 100% certainty as to your opinion is unnecessary. Typically, all you need is "reasonable certainty." So avoid using words like "always" or "never" or "absolutely impossible" since anything is possible.
Given that you will be testifying truthfully, if you as a marine professional are reasonably sure of your conclusion, that's all anyone can ask of a mere mortal. And the court won't ask for anything more either. The test for admissibility boils down to whether your opinion can help the fact finder: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Federal Evidence Rule 702.
Here's a good example of a reasonably certain opinion succinctly stated in a New England surveyor's report: "Based on the above, we are of the opinion that the failure of the unit is consistent with an external source of wetting such as an exhaust leak and it is unrelated to any repairs made by [the repair yard]."
In contrast, the following Great Lakes surveyor's statement confusingly juxtaposes less than 50% uncertainty with more than 50% certainty. Cancelling each other out, the result is a wishywashy inadmissible opinion: "We suspect damage to the bow rail was most likely caused by the towing service."
Corollary #3: Sloppy writing suggests sloppy surveying, so wordsmith your report. For example, in reciting the facts of a questionable claim, avoid language suggesting liability. Instead, carefully choose words conveying your doubts: Apparently the incident happened at 0230... The guest claims she slipped and fell on deck... Despite poor lighting, her husband purportedly saw her in midair... However, your insured heard nothing. In conclusion, it is unclear what caused the alleged slip and fall.
Shipwrecks inspire novels. The general public loves to hear what we do. Edit with
your word processor to grab the interest of your reading audience ultimately the judge and jury. Write your observations in the active voice, staying away from these passive and boring descriptions, from a Mid-West survey: "Inspection of the running gear gave evidence that the rudders were bent to port with the port side showing the most severe damage .... Also sighted to the starboard side of the vessel were punctures and cracks noted forward of the midship area and forward bow area."
If Mark Twain had written like that, no one would know Tom and Huck rafted the Mississippi.
Since ours is a litigious world, what we say and write can easily end up in the courtroom. I am reasonably certain you'll have smoother sailing professionally if you keep that in mind.
