Marine Investigations

Serving Clients

Obligations to the Client

The first obligation to the client is to be the expert one claims to be, and to perform a thorough job.

Investigations can be lengthy so that the matter of being paid adequately for one’s work can be a major factor.

It should be obvious that if the investigator is not being paid adequately, there is substantial incentive to not put in all the time required to do a thorough job. This naturally leads to the issue of payment.

Getting paid by insurance companies is rarely a problem, but working for individuals and lawyers and getting paid at all is a major problem for surveyors because we have long-standing problems of getting paid by these people.

Especially lawyers who often are working cases on a contingency basis with no, or very little money up front, thus creating a built-in problem for getting paid.

Most experts finally learn the hard way that the only way they’re going to get paid is by getting payment up front. One has only to consider what it is like trying to collect from a lawyer.

Maintaining objectivity proves difficult for many surveyors to do because it is the client that is paying him.

The problem with taking a position of advocacy on behalf of the client is the distortion of truth this inevitably causes.

And while this might not seem to be a problem at the time of slanting one’s findings on behalf of the client, the presentation of a less than truthful report in a case that ends up in litigation more often than not ends up with the surveyor being discredited in open court, a situation that can cause acute embarrassment, among other things.

The beginner should be aware that the manipulation of facts for the benefit of the client usually ends up becoming painfully obvious to everyone but the persons doing the manipulating.

Bias is easy to detect by those who are not involved, though it is hard for one who is involved to appreciate this.

It is something the beginner learns over time as he gains experience and having had the opportunity to review the work of other experts who have manipulated facts or evidence to suit their needs.

The beginner will do himself a big favor by quickly learning to avoid clients who want the surveyor to manipulate evidence for him.

The vast majority of the surveyor’s work will end up in a written report. The obligation to the client is to present a clear, precise and factual report as succinctly as possible.

Learning to write good reports is not easy unless one has had college level training in report writing.

A poorly written report is a disservice to the client because such reports do not present the case as well as it should be presented. In legal situations, a poorly written report can, by itself, end up losing the case for the client.

For that reason I have devoted an entire chapter to report writing. See chapter 13.

Maintaining Objectivity

During the course of writing this book I was involved in a number of cases in which investigators produced investigation reports that were not only biased, but were downright falsified.

It was obvious to anyone reading those reports that the investigator was clearly trying to manipulate evidence in favor of his client.

With insurance cases especially, the investigator has a duty to be objective and to present fair and unbiased evidence. In the above mentioned cases the investigators included in their reports “evidence” that was unsupported by documentation, unsupported allegations, omission of obvious facts, and irrelevant pejorative commentary.

One report was so biased that it was readily apparent that it demonstrated a willful intent to defraud the insured by presenting only evidence in support for denial of the claim, while ignoring evidence that was obvious.

The investigator was obviously not a seasoned professional and was utterly unaware of the severe risk to himself and his client that he posed by committing this fraud.

Perhaps he though that in helping his client not pay a claim, that would endear his client to him.

It didn’t help him much when the insured slapped him and the insurance company with a host of civil complaints including but not limited to libel and fraud based on willful misrepresentation as well as violation of numerous insurance statutes such as bad faith, unfair trade practices and others subject to punitive damages.

The reader has likely observed, from watching televised trials, that there are those expert witnesses whose testimony is “bought,” or perhaps more charitably we might say are zealously loyal to their clients.

So loyal, in fact, that they clearly are attempting to craft their testimony favorably toward their client. When this happens, it is usually obvious to everyone but the one testifying.

It is a mistake to think that juries can’t see through this. And if it is evident in the spoken word, so too, is it evident in written reports.

Unfortunately, far too many who seek to derive income from involvement in litigation fall into this trap.

Highly experienced trial attorneys tell us that biased witnesses tend to hurt, not help their cases. Good lawyers don’t want witnesses that are dishonest or even shade the truth, for they know that this is likely to backfire.

If a lawyer doesn’t have good evidence, he will want to know that before he goes to trial. The purpose of trials is to determine truth, and while it is an imperfect system, the fact remains that the truth is usually revealed in the vast majority of cases.

We should all recognize that every one has bias that derives from our unique position and viewpoint of the world around us. As hard as we might try, we can’t rid ourselves of bias completely, but that doesn’t mean that we shouldn’t try.

In the chapter on report writing I discuss some techniques for recognizing and rooting the inevitable bias out of our work

In the meantime, we must avoid manipulative clients because no matter how much they pay us, it can’t ever be enough.

For the beginner, it is especially important to resist the urge to “go to bat” for the client.

With insurance companies this is easy because they expect the unvarnished truth from their experts. But when it comes to other clients, that may not be the case, and the surveyor will find it necessary to advise the client that he will let the chips fall where they may during his investigation.

Obviously, there will be those cases where maintaining one’s integrity becomes particularly difficult when the results of the investigation end up being very unfavorable to the client.

At the outset, it should be apparent to the surveyor that such an outcome is possible. He can avoid future difficulties by informing the client straight out that he will not manipulate the facts in favor of the client.

At some point during the investigation it will likely become increasingly obvious that things aren’t going the client’s way. At this point it may be wise to advise the client of this and to terminate your employment as a simple matter of being a non-cost effective endeavor.

Win-Win, Not Win-Lose

My experience over the course of a long career is that about a third of all investigations do not produce conclusive, actionable results, or at best will alter anticipated action.

Either a cause is not found or the evidence is too weak to merit any kind of action. This becomes particularly troublesome when an investigator is working the defense side of a case.

Of course, the investigator is likely to take pride in his ability to determine causes so that his determination to do so may end up with his determination coloring the facts.

We’re all aware of how this sort of thing comes back to haunt overzealous prosecutors and police detectives. The actions that we are least able to judge objectively, of course, are our own.

The best way to avoid falling into this bias trap is to avoid viewing an investigation as a win or lose situation, while constantly being aware of the consequences of our actions.

Maintaining a scrupulous integrity isn’t possible when we view an investigation as win or lose, success or failure, the motivation for which usually stems from a misplaced loyalty to the client.

We have to avoid the notion that because the client is paying us the investigation must be successful.

In the end, the client we should be serving is the truth. In some cases the truth is hidden and cannot be found.

When that happens, the truth is that the truth can’t be found, it is not a reflection on our competence when we know that all reasonable avenues of investigation have been exhausted.

Our egos will be far less challenged and threatened when we are prepared to lay out all that we have done, and from that draw a conclusion that the cause or truth can’t be determined.