When to Retain a Maritime Expert

Most attorneys call a maritime expert when the expert disclosure deadline is close. By then the important decisions in the case have already been made: what to request in discovery, whom to depose, what theory to pursue. An expert brought in at that stage is working with whatever the file happens to contain.

The better time is almost always earlier.

Before filing

For plaintiff counsel, an early consult can answer the question that matters most: is there a vessel-side problem here at all? A short review of the facts, the vessel type, and whatever records the client has can save months on a weak case or sharpen a strong one. It can also shape the complaint, so that it describes the operational failures in terms that will hold up later.

For defense counsel, early review helps the company understand its exposure, identify what records exist, and make sure nothing is lost.

In the first ninety days

This is where an expert earns his fee many times over.

• Preservation. Naming the specific records to keep: voyage data, bridge audio, AIS, ECDIS, engine logs, training files, safety management system audits, phone data. Some of it disappears within days or weeks.
• Discovery requests. Asking for documents by the names the industry uses for them, so the other side cannot say they had nothing responsive.
• Deposition planning. Knowing what to ask the master, the mate, the pilot, the deckhand, and the company's designated person ashore, and what their answers should sound like if they followed procedure.
• Early theory testing. Checking whether the case theory fits how ships and crews actually work.

Before depositions of key witnesses

Even if the expert is not retained earlier, bring him in before the vessel crew is deposed. Those depositions often decide the case. An expert can help identify the questions that expose a gap between procedure and practice, or confirm that the crew did what it was supposed to do.

At the disclosure deadline

If this is where you are, it is still worth doing well. Get the expert the complete record. Give him time to read it. Ask what he can and cannot support. A narrow opinion grounded in the full record is better than a broad one built on half the file.

Consulting first, testifying later

Many attorneys start with a consulting arrangement, which is generally protected from discovery in federal court, and decide later whether to designate the expert to testify. That approach gives you a candid early read without committing to anything.

The cost of waiting

Late retention costs more than money. It costs evidence that is gone, questions that were never asked, and opinions that have to be built around holes in the record. A short call at the start of a case is cheap insurance.

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