Baldwin Haspel Burke & Mayer LLC

Article: The FBI Doesn’t Record Statements, But You Should

Lawrence DeMarcay III - 

Published in Marine News magazine’s October 2018 issue.

A primer on the potential pitfalls of the garden variety marine claim. It is easier than you might think to manage that risk.

The one thing that causes great anxiety and expense in the litigation arena, in addition to lying claimants, is uncertainty. Uncertainty causes litigants to produce voluminous documents, issue a ton of third-party record requests, take a lot of depositions, and have a difficult time resolving the case because no one can agree what transpired immediately before the event giving rise to the litigation. This uncertainty causes the company to expend significant resources defending the litigation and creates a situation where a litigation outcome is difficult to predict.

The antidote to this poison is the implementation of a program that provides for the early investigation of a claim including the taking of statements from all potential witnesses and compiling the documents that may be relevant to the claim. Spending the time taking statements will cost the company resources on the front end. However, it will save the company significant resources down the road.

As an example, earlier this month, we mediated a case for a client where the plaintiff was injured as a result of a cable tray that fell from height where it was left unsecured. This type of case should be pretty simple and, once the determination is made as to who left the tray unsecured, the case should resolve itself pretty quickly. However, as this project involved the work of at least four sub-contractors, a project manager and the facility owner, we took 25 depositions and discovered nothing more than everyone agreed that an unsecured cable tray shouldn’t be stored at height and that no one was willing to admit to placing it there. This process cost all of the litigants a significant amount in defense costs. Had each of the potential witnesses been interviewed aboard the vessel, and a determination been made as to who placed the cable tray in position, the case could have resolved itself quickly on reasonable terms funded by the negligent defendant. Interviewing witnesses while aboard the vessel could have saved each of these litigants many thousands of dollars in defense costs. Uncertainty is the driving force in driving up litigation costs in cases like this that otherwise wouldn’t warrant significant discovery.

Although the scope of interviews can vary from incident to incident, the premise remains the same. It is important to get to the bottom of the case by interviewing all of the witnesses that may have some knowledge about the incident. In practice, I prefer to casually interview a witness to get a feel for what they know and then reduce the interview to a more concise witness statement. This gives the witness a chance to tell you what they believe happened without being prompted to tell a certain story. Once the details are ironed out, a formal statement can be taken. Such a statement can be recorded, handwritten, typed and signed, or written on a form provided by the company.

It is very important to capture all of the potential witnesses. Often, a company will start the process of interviewing the crew and stop once it is determined what may have caused the incident. Although terminating such an investigation makes sense considering that the goal is to determine what happened, it exposes the company to potential long-term liability. Without fail, the witnesses that were not interviewed will surface at a later date telling a story that is entirely different from that provided by the few witnesses that were interviewed. Unfortunately, it is amazing what a layoff or termination will do to a witness’ memory.

A split in testimony will be the reason that defense costs skyrocket and the company’s potential exposure is higher. Once a claimant’s legal team locates a crack in your armor, they will pursue that lead trying to expand the crack. One witness contradicting another on a salient issue pours fuel on the investigative fi re and the scope of the discovery net will continue to grow with the hope of picking up favorable testimony. This costs the company a significant amount in defense costs and increases the company’s liability exposure as inconsistent testimony always creates issues.

The increased cost of litigation can be avoided by taking statements from all potential witnesses immediately after the accident. Once a witness provides a statement, this statement can be used at a later time to “refresh his recollection” of how the event occurred or, in the event that he no longer works for the company, keep him from providing differing testimony with the goal of hurting the company or helping the plaintiff, both of which can be expected from a former employee, especially if he has been terminated.

Along with taking statements, it is also a good practice to compile all of the documents that may be needed during the defense of the claim. These documents will include relevant contracts, work orders, safety and equipment manuals, JSAs, vessel logs, client instructions, photographs and accident reports. Compiling the information while it is readily available, and providing it to your defense team immediately upon retention, will save the company resources as you won’t have to search through archived materials or pay your legal team to compile the information for you. You save litigation costs if you can provide your attorney with everything that they need “in the can” instead of having them locate the information later.

You may be asking, is it always good to compile all of this information early? And my honest answer is, not always, as some claims are just bad. But, in most cases, the compilation of this information will help your case and save you significant resources over the long run. If you have concerns about a particular incident, it never hurts to consult your legal team for advice early on in the process. Although it costs a bit more to retain counsel before it is required, they can help guide your investigation and provide the information generated with a cloak of protection provided by the attorney client privilege.

If you have questions regarding this matter, please contact Larry DeMarcay at (504) 569-2900 or ldemarcay@bhbmlaw.com.


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