Marine Investigations

The Expert Witness

From having watched TV criminal trials, the reader is no doubt familiar with the expert witness, typically the forensic pathologists of TV fame.

There are people who become experts in almost every field of endeavor and who find a way to create a business for themselves as expert witnesses.

There isn’t a large demand for legal experts and only a few will even manage to be able to create a part time business of it. Even so, part time work can be quite lucrative as it pays very well.

An expert witness is hired based exclusively on a high degree of demonstrable expertise to be used in direct court testimony at trial.

It is an area of professional service in which some surveyors come to specialize. Being hired as an expert witness is not exactly the same thing as testifying as an expert.

An expert witness may be hired who has no direct involvement with the investigation in contrast to the actual investigator who testifies as an expert.

Both are experts but they perform different functions. An expert witness may be hired to present his technical knowledge as well as knowledge of techniques and procedures, and to render an opinion.

For example, an attorney may hire an expert for the sole purpose of evaluating the work of another expert on the other side.

Here the distinction is made between being an expert and being an expert witness; one is a material witness while the other renders opinions.

Surveyors hired as experts may or may not end up testifying. It all depends on how the attorney views the expert’s advice.

Thus, not every job that we are hired as an expert do we end up with actual court testimony.

Indeed, the vast majority of cases settle before going to trial. But for the majority of cases we will end up giving depositions.

Expertise on boats and their systems is not the only thing a trial lawyer looks for in an expert witness.

It should be understood that being an expert witness is not something that should be sought after by the beginner or amateur. The larger part is the expert’s experience and adeptness at testifying.

Trial lawyers desire above everything else, an expert who can handle himself well on the witness stand, bearing in mind that lawyers themselves are well-trained in the art of trying to make witnesses look bad.

Much of the expert witness work that I perform for clients involves searching for weakness in the work of other experts and witnesses.

Should one desire to become an expert witness, this fact should be kept foremost in mind, for this work can involve some rough treatment of the expert.

One should also be aware that one’s personal life is not out of bounds. The character of any witness is very much fair game for attack.

The reader is probably aware that a major tactic of opposing lawyers at trial is to attempt to discredit opposing witnesses, a tactic that usually involves attempts to fluster and intimidate the witness.

Skilled lawyers are usually pretty good at this and it takes a witness with similar skills and experience to successfully handle these tactics.

Thus, the first few times one testifies as an expert are not likely to be pleasant experiences.

The opposing side goes over the expert’s work with a fine tooth comb, usually in consultation with other experts, looking for ways to attack and discredit that expert witness.

Defense Versus Plaintiff Cases

While it might appear that there are important differences between plaintiff and defense case, in reality there is very little so far as the marine expert is concerned.

The essence is the same regardless of which side we are working for. Our job is to arrive at the truth; if there is no truth in the client’s case, would that be a case we want to be involved with?

If there is any difference at all, it lies primarily in the fact that the burden of proof likes with the plaintiff.

This means that we must be even more diligent about both the veracity of the evidence we present, and the way we present it. Otherwise, it really doesn’t matter which side we are working for.

It will matter to the investigator who feels that he owes his client some loyalty for the fee he is paid by shading the truth or even outright falsification, but to the truthful expert it matters not the least.

Many experts are reluctant, once they’ve got a retainer, to present their clients with bad or unfavorable news.

If one can’t stand up to telling the client the truth, and possibly losing the job, then one ought to engage in some other line of work.

Any plaintiff or defendant with an ounce of sense does not want to go to trial with a skewed report and false testimony. If he doesn’t have a good case he’s better off settling it before trial.

He deserves to know that his case is not good. This is rather like being an oncologist and having to tell patients they have cancer. If an investigator doesn’t have the fortitude to tell him that . . . well, you can finish this sentence yourself.

In fact, I have found working both types of cases to be very beneficial, for I have had lawyers attempt to cast doubt on my credibility by attempting to paint me as someone who is loyal to insurance companies.

That tactic fails when I say that I have conducted numerous plaintiff investigations.

Therefore, it’s a good idea to try to vary the types of work one does so that the issues can be seen and experienced from both sides of the fence.

It is true that there will be some few insurance claims managers who will take umbrage over having taken a case against them, but you know and I know that it isn’t smart. 

A smart manager will recognize that a good investigator tells the truth, and will not hold it against him that he’s working for the other side.

Of course, one cannot hold an active account with an insurer and take a case against him at the same time, for that truly is a conflict of interest.

However, most companies will not be adverse to hiring you on an as-needed basis at other times. As long as you are any company’s regular surveyor, you cannot take cases against them.

There are occasions where this situation is unavoidable, particularly on issues of subrogation. Subrogation is a term that means that an insurance company, though it’s insurance contract, obtains certain of the insured’s rights.

One of these is the right to recover damages caused by others because the insurer has sustained that loss by virtue of paying the damage cost.

An investigator likely holds more than one insurance account, and sometimes the paths of the two companies cross in subrogation and litigation.

There is no need to worry about these situations, but you do have an obligation to inform the unknowing party that you are on the other side of the issue. One cannot, of course, handle both sides of the same case.

(Footnotes)
1. Based on Insurance Industry Association estimates.