Consulting vs. Testifying Maritime Expert: When to Use Each

The first call from an attorney often ends with the same question. "Do we need you to testify, or do we just need you to tell us what happened?"

Those are two different jobs, and the rules treat them differently. Choosing the right one at the start can save a case a lot of trouble later.

The consulting expert

A consulting expert is retained to help counsel understand the case, not to testify. Under Federal Rule of Civil Procedure 26(b)(4)(D), the facts known and opinions held by an expert retained in anticipation of litigation, who is not expected to testify, are generally protected from discovery. The exceptions are narrow.

In practice, that protection buys candor. A consulting expert can tell you the vessel side of your case is weaker than you hoped, point out the document that will hurt you, or tell you your theory of the accident does not match how ships actually work. None of that has to appear in a report the other side will read.

In maritime cases, consulting work usually covers:

• An early read on liability from the vessel's point of view
• Help writing discovery requests for the right records (VDR data, bridge audio, training files, SMS audits)
• Preparing to depose the master, mate, pilot, or crew
• Reviewing the other side's expert report
• Helping counsel understand terminology, equipment, and procedures

The testifying expert

A testifying expert is designated to give opinions at trial, and that changes the rules. Under Rule 26(a)(2)(B), a retained testifying expert must provide a written report with a complete statement of opinions and the basis for them, the facts or data considered, exhibits, his qualifications including publications from the past ten years, a list of cases in the past four years where he testified at trial or by deposition, and his compensation.

The 2010 amendments to Rule 26 protect draft reports and most communications between counsel and a testifying expert. But communications about compensation, facts or data counsel provided that the expert considered, and assumptions counsel gave the expert to rely on are discoverable. Anything the expert looked at can become part of the fight.

State courts have their own rules, and some of them protect much less. Counsel should check the forum before assuming the federal approach applies.

Starting as a consultant, finishing as a witness

A common path is to retain the expert as a consultant first, then designate him to testify once the case is clearer. That works, but it takes care. Once he is designated, the facts and data he considered can be explored on cross-examination, including material from the consulting phase.

A few practical habits help:

• Decide early what you will send him, and assume that anything he considers may eventually be disclosed.
• Keep strategy discussions separate from factual material where you can.
• Do not send documents you would not want him asked about.
• If you need a purely confidential sounding board for the whole case, consider keeping one consultant who will never testify and retaining a separate testifying expert.

Which one do you need?

Usually both, at different times. If the case is still taking shape, or you are not yet sure the vessel-side facts help you, start with consulting work. If you already know the standard-of-care questions the jury will have to answer, and your deadlines are coming, you need a testifying expert who can write a report that will hold up.

What I tell attorneys on the first call

I will tell you what I think the records show, including the parts you will not like. If I do not think the facts support the opinion you need, it is better you hear that from me in the first month than from the other side's expert at trial. And if the case needs someone with a different background (an engineer, a naval architect, a physician), I will say so.

About the author

Captain Mitchell S. Stoller is a Master Mariner Unlimited, former Exxon tanker master, and former Los Angeles Harbor pilot. About Captain Stoller