Preparing Members for US Litigation - Don't Let Your Case Go Down with the Ship
UK Club Senior Claims Director Jennifer Porter on her conversation with Molly Henry and David Boyajian of Schwabe, Williamson & Wyatt.
Ships go bump in the night. Cargo ops come to a screeching halt. A letter of protest is served on the captain. The smell of a lawsuit is in the air. What do you do now?
Molly Henry and David Boyajian of Schwabe, Williamson & Wyatt talk about relationship-focused principles for effective incident documentation, witness preparation and mediation with respect to marine-based liabilities.
Incident Documentation and Retention
Why is the early preservation of documents and evidence so important? When accidents happen, adrenaline is up and things get hectic. It is critical during these moments to slow down and think about what facts and memories you may need several years later in the event that a subsequent claim arises. It is important to document and identify the witnesses, people and equipment involved. If you are unable to set aside the equipment to preserve it in its immediate post-incident state, document and photograph its condition. Think about the overall scene of the incident and what might change in the future.
With respect to documenting and reporting the incident, strive for:
- Focus on facts
Do your best to avoid:
- Telling someone what to say
When putting pen to paper, slow down and take your time. Compose your thoughts before you write. And do not create unnecessary drafts. These will likely be discoverable in subsequent litigation. Whatever you write, be sure that it is 100% accurate! If you don’t know all the facts, do not speculate or guess. Be sure to distinguish between what you observed and what was reported to you. There can be a big difference between what you personally witnessed and what someone else claimed to have seen or been told.
Finally, it is very important for the crew and home office to distinguish between facts (what can be observed and what was reported) versus speculation and opinions about how the incident happened. Immediately after the incident is usually not the time to determine all corrective actions and how to avoid similar incidents in the future. Such important conclusions and decisions should not be rushed. They should only be determined after all the evidence and analysis has been completed, and with the input of management.
Principles for Effective Witness Interviews
Getting timely, accurate and complete information from eye witnesses is important. When interviewing crew or shoreside personnel who are willing to talk, strive for open-ended questions that are not leading. Explore inconsistencies and ask follow-up questions. Test the foundation as to how and why the person knows the information they are sharing. Did they see it? Do they have prior experience with the piece of equipment or evolution involved?
In addition to critical eye witnesses, immediately after the incident is a great time to start thinking about big-picture background experts, subject-matter experts as well as relevant agencies and adversaries that may ultimately become involved in the future. Get those that can help your case involved early. And maybe more importantly, be honest with yourself about your weaknesses and blind spots. Now is the time to start working with your team about the company narrative.
Document Production and Witness Preparation
The incident was promptly reported and the ship sailed. Years later, a lawsuit is filed and your defense counsel is asking for relevant documents and witnesses. What now?
First, stay calm. This is what you have been preparing for. When providing documents to your counsel, more is more. It is your counsel’s job to decide what should be produced and what can be withheld, but they can only do that if they know the universe of what is out there. Moreover, it is imperative that you get any potentially responsive documents to counsel early so they have plenty of time to go through everything carefully.
In most cases, opposing counsel will demand (and is typically entitled to) any incident reports, witness statements, photographs, SMS-required reporting documents, personnel files, payroll records, vessel logs and records from the day of the incident, safety meeting minutes and relevant safety policies and SMS sections.
Lawyers will often fight over the production of the entire SMS or safety manual, the reporting of ‘similar’ incidents, wage information of other employees, information concerning the company’s financials and overly burdensome ESI. But, in order to fight that fight, it is important for your counsel to know what information and documents the company has and how that information is retained.
Having an early conversation with your counsel as to what documents may be requested during the litigation as well as working internally to identify personnel who can assist in retrieving that information are key to avoiding both headaches and discovery sanctions down the line.
Similarly, preparing company witnesses to testify in a deposition or court is quite a bit different than interviewing them after an incident for fact-finding purposes. Litigation is an adversarial process where how one testifies is just as important as what is said. Company witnesses should understand how their testimony fits into the claim and what the narrative is on both sides of the ‘v’.
When responding to opposing counsel’s questions, there are three Golden Rules: (1) Listen carefully to the question. (2) Repeat the question in your head. (3) Answer the question and only the question.
In addition to the three Golden Rules of testifying, be mindful of the 'Don'ts':
- Don't guess or volunteer information.
- Don't answer the question if you don't understand.
- Don't accept the premise of any question and always frame the answer in your own words.
- Don't speak to what other people know.
- Don't reference documents unless specifically asked about them.
- Don't bring anything with you.
- Don't argue with the examiner but be attuned to the objections raised by your counsel.
Once discovery has been exchanged and witnesses deposed, most US jurisdictions require parties to attend mediation or another form of alternative dispute resolution prior to trial. In fact, approximately 95% of maritime personal injury cases result in pre-trial settlement.
Even if the case seems destined for trial, mediation can still be a valuable tool for testing your narrative and getting an early assessment on liability, damages and experts. In order to get the most bang for your mediation bucks, the Club suggests working with counsel to ensure you are mediating with the right mediator for the case. It is important to find someone who has experience litigating (or presiding over) similar claims and who is aware of recent verdicts and legal decisions in the subject matter. You want someone who both sides respect, who does their homework and who will work hard at poking holes each side’s case.
Finally, it is just as important that the company does its homework. Think of mediation as a mini-trial. This is the time to sit back and see how all your documents and witness preparation withstand the scrutiny of a third-party neutral. Knowing your case well going into mediation and staying engaged during the process will help to ensure company, Club and defense counsel are assessing the case accurately and, if not, can make changes before it’s too late.
Remember no two cases are the same and all incidents and scenarios are unique. Best practices always start with notifying your Club contact and working with them to appoint appropriate local counsel and correspondents.