Podcast - Keeping Your Vessel Stable During Cross-Examination

Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook." In this episode we will continue discussing the Jack Gilbert naval architect negligence case. These episodes are based in part on my latest ABA book "Lessons Learned from a Life on Trial."

Vessel stability is a complex science — actually, part science, part art. Stability calculations focus on centers of gravity, centers of buoyancy, the metacenters of the vessels and many other complex calculations. In the Gilbert case, our experts believed that the answer was much simpler. The owner wanted a much larger fishing boat but couldn't afford it. So, he had Jack Gilbert, the architect, design and build a smaller version, but then he loaded it up with the heavy gear intended for the larger boat. Thus, the problem, we believed, was not in the design, but in the owner.

We went to trial in the U.S. District Court in Portland, Maine, with the owner claiming the vessel was unstable. Indeed, he had taken the boat down to a shipyard in Louisiana and had them essentially cut the boat in half and extend it. The theory was that a longer, larger boat would be more stable with all the weight above the waterline. Now he was seeking to recover the cost of that crazy operation, and more, from Jack Gilbert.

Obviously, stability is important with any boat, but particularly so with these fishing boats. They go out for days and weeks at a time to various fishing grounds, including the Grand Banks of Newfoundland, with sometimes dangerous conditions and turbulent waters.

At trial, we were able to disqualify one of their experts, but the court allowed them to substitute in a new expert at the last minute. We objected like crazy, this was unfair, but the court overruled our objections. So there we were, Jack Gilbert, myself and co-counsel, spending the weekend during trial reviewing this new expert's lengthy report. On Saturday night, in the middle of our review, Jack started to laugh. I asked him what could possibly be funny. Here we were trying to read this report in the middle of the weekend. He just stood up with a big smile and said: "You're the lawyer. You're the captain of this trial ship. You have to know this stuff well enough to understand the problem if you're going to cross-examine him. As for me, I'm going out for a beer to celebrate!" And he did.

One of the big issues in vessel stability, not surprisingly, is how weight is distributed. One core theme for us was "Every pound added above the waterline affects stability." Think about a sailboat with a deep heavy keel. That's to keep it upright and stable when bending to the wind. Same with a large fishing vessel. The more weight above the waterline, the greater the risk of instability. But how do you measure that? It's a 100-foot-long working fishing boat. You can't cut it up and weigh all the pieces.

Instead, you do what's called a "weight pick-off." Essentially, you create an inventory of every surface of the boat, determine the measurements for each part of that surface, determine what that surface is made of, determine the weight of that material and then do the math to figure out how much that piece of the boat weighs.

In this way, slowly, piece by piece, you add everything up to determine what the overall weight is and where it is. It's an extraordinarily painstaking process, and without complete confidence in its accuracy, it's meaningless. It was a long weekend, but somehow, I figured it out, and when Jack came back, he confirmed that, after many long hours, I had found the problem.

Their expert took the stand and gave a pretty nice presentation on direct exam. He had done the weight pick-off in a hurry, since he had been substituted late, but he went through it in detail and determined that the vessel was heavier than it should have been above the waterline, and thus potentially unstable. Not dramatically so, but enough to cause him concern. Our experts had found no such problems, so now we had a credibility contest.

The "Three C's" for cross-examination on credibility issues are commit, credit and confront. We usually reference these when we're talking about a prior inconsistent statement: commit to the current statement, credit the prior statement and then confront the inconsistency. But the same concepts, the same three C's, work for other forms of cross-examination relating to credibility. And so they did here.

Commit: I spent time on cross-examination committing him to how important it was to be accurate and precise in doing his weight pick-off. I confirmed that he understood boats and navigation and the purpose of every part of the boat, and that he had examined every surface of the vessel carefully to make sure that he was using the correct materials, the correct weights of those materials and the correct measurements. I confirmed that any errors would call his results into question, that he had his staff do drawings of each surface, with those measurements, to help explain his work, and he had reviewed those drawings himself to make sure they were accurate. They were all contained in the appendices to his report, which he had with him on the witness stand.

Credit: I spent some time using his expertise to credit the functions and navigation of the vessel. Eventually, after some obfuscation, I took a chance and asked him what was the most important place on the boat. At that point, tired of my apparent ignorance, he said it was clearly the pilot house. "Why?" I asked. (By the way, never ask "Why?" on cross-examination, unless you bloody well know the answer. Here, I did.) He looked at me with appropriate disdain and explained to this apparent idiot that the pilot house was where the captain stood. The captain had to be able to see as much as possible around 360 degrees. It's the key observation point on the boat. I asked for details: It's where the captain steered the boat, observed the crew at work and kept an eye out for other boats or obstacles? Icebergs? (I couldn't resist.) Yes, of course!

Confront: I then asked him if he had done a weight pick-off of the pilot house. Yes, of course, he said, again with some disdain. Had his staff done drawings to go along with that weight pick-off? Yes. And had he reviewed those drawings? Yes, of course. And did he have the numbers and the drawings from the weight pick-off of the pilot house with him here on the stand? Yes, of course. Could you please pull them out for us? He pulled out the documents for the weight pick-off of the pilot house and placed them in front of him on the witness stand. Very impressive looking.

I had thought a good deal about how to take the next step, how to use what I had discovered over the weekend. You should, too, when you have choices like this. There are different approaches, and the decision is not often simple or easy. Do I spend some time pretending to carefully review the documents and drawings? Do I put them up somewhere for the jury to see? Here, the disdain in his voice about my apparent lack of understanding of the purpose and importance of the pilot house served to emphasize my point all by itself. So I went right to it. There was no appeal, so we never got a transcript, but in my memory, it went something like this:

"Mr. Expert, the walls of the actual pilot house are made of steel, correct?"

"Yes."

"And the windows of the pilot house are made of clear plexiglass, so the captain has a clean line of sight?"

"Yes."

"Mr. Expert, let me hold up your weight pick-off diagram of the pilot house for the jury and ask you, where is the clear plexiglass?"

After an awkward pause, without waiting for the answer, I asked,

"Mr. Expert, you didn't put any clear plexiglass windows in your weight pick-off of the pilot house. It's all steel."

"Mr. Expert, in fact, you didn't put any windows in the pilot house at all, did you?"

"Mr. Expert, you basically turned the key observation point on the boat into a solid steel bunker that no one could see out of?"

"Mr. Expert, clear plexiglass for the windows weighs a lot less than the half-inch solid steel you put in there, doesn't it?"

This is all from memory, so you'll have to forgive me if it's not exact, but you get the idea. In fact, the difference in weight between clear plexiglass and solid steel, though significant, probably did not completely negate his weight pick-off. But his "expert," "precise" and "of course" answers regarding the design of the pilot house as a solid-steel bunker certainly did. Almost instantly, he lost credibility with the jury. He was pretty much useless as an expert.

Yes, this was a last-minute replacement expert witness, but as trial lawyers, we are the captain of the ship. The case is our responsibility, not the experts. We cannot cede our case to our experts. We have to know the territory. One of the many lessons I learned from Jack Gilbert during this great trial was from his laughter walking out of the room that Saturday night going for a beer. He was not going to spoon-feed me when I had to learn it myself. He understood that that is not the way to captain the ship. Lessons learned.