Introduction

Even the safest and most careful shipping companies will, at some point, have an accident aboard one of their vessels where an employee gets hurt. When this happens, there is a real possibility that an employee could file a lawsuit against the company. The effective management and outcome of the case lies in preparing for litigation. Understanding how personal injury litigation works under the Jones Act will help you to position your company to achieve a positive outcome. This update outlines the process and explains how to improve your chances of a successful trial verdict.

Preparing for suits

The Jones Act applies to employees who are working aboard and permanently assigned to your vessels. Injuries to Jones Act-covered employees require a different defence strategy from that employed against land-based employees, who are covered under state workers' compensation insurance. Under the Jones Act:

  • employees can sue their employer;
  • negligence or the unseaworthiness of the vessel must be proven by the employee in order to make a recovery; and
  • damages are not statutory and are determined on a case-by-case basis.

As such, preparing a good defence against the claim is of paramount importance. In contrast, land-based employees are prohibited from suing their employer and the statutory workers' compensation system determines how such a claim is evaluated, which is paid regardless of the fault of the employer. Thus, for land-based employees, a defence against negligence is not important.

Negligence is important to a Jones Act claim, however, so the company's response to the incident and the management of the litigation are key components of effectively managing the claim and the resulting litigation.

The right time to begin an active defence is immediately after the accident occurs. It is important to have the crew preserve documents and equipment that are relevant to the case. You can count on receiving requests from your legal team for vessel logs, billing logs, time sheets, weather reports, communication logs, GPS logs, maintenance logs and the manuals for any equipment involved in the accident. If the accident damaged equipment aboard the vessel, it is a good idea, if possible, to preserve the equipment for future inspection and analysis.

You should also take statements from the crew to preserve their description of the event. Although statements should be taken by an attorney to strengthen the privileges associated with objecting to the release of the statements, many companies have the statements taken by in-house claims employees or investigators.

Statements can be written by the witness or recorded. In each scenario, take the time to interview the witness, obtain a firm understanding of what he or she has knowledge about and tailor the statement accordingly. Your goal is a concise statement that clearly spells out the details of the event. If the crew is small enough, statements should be taken from crew members who were not involved in the incident stating that they have no knowledge about what happened. You would be surprised at how many former crew members will testify negatively about a company after they are no longer employed, despite having no first-hand involvement in or knowledge of the event. Taking statements to prove that these former crew members have no knowledge of the incident will avoid such a situation.

Once statements have been taken, look at the employee's injuries and decide whether a background investigation is warranted. If the employee's behaviour calls for an investigation, a civil and criminal background check can often turn up helpful information. This background check also provides information that can be used to conduct a deeper investigation. For example, ex-spouses may have information pertinent to the employee's current physical status. The key is to turn over every stone; you never know what you might find. This is also a good time to conduct a round of surveillance to check whether the employee's physical activities correspond with those reported to his physicians.

Once the employee files a lawsuit against you, the complaint and a summons will be served on the company's agent of service of process as determined by the rules of civil procedure. As the deadlines for responding to the lawsuit begin to run on the day that you are served, it is important to send the complaint to your legal team immediately.

Once you have been properly served, your legal team must determine the most appropriate response. In the event that the suit was not filed in a timely manner, the wrong party was named or the plaintiff does not have a cause of action, the filing of a motion to dismiss the lawsuit may be appropriate. If not, an answer that denies the plaintiff's allegations and asserts the company's affirmative defences must be filed prior to the deadline.

In many courts, once the answer has been filed, the court will set up a status conference to select a trial date, discuss any issues that may be important and formally start the discovery process. In the federal court system, a trial date can be expected to be scheduled roughly eight to 10 months after the status conference.

Once the stage is set, the discovery process begins. Although each case is different, parties usually follow a predictable pattern of:

  • preparing initial disclosures;
  • exchanging written discovery;
  • issuing record subpoenas and document requests to third parties;
  • deposing the plaintiff and fact witnesses;
  • exchanging expert reports;
  • deposing experts; and
  • taking trial perpetuation depositions, if needed.

The discovery phase is where the bulk of the work is done. It is also the phase that requires company resources to assist the legal team in producing the requested documentation and witnesses needed to work up your side of the case and respond to the other side's discovery requests. The work done during the investigative phase can save you resources during the discovery phase, as most of the requested information will have already been compiled and provided to counsel.

Once the discovery phase is complete, the trial preparation phase begins. This includes the filing of pre-trial motions, the fine-tuning of arguments and the preparation of trial witnesses and exhibits. Productive settlement discussions are often held during this phase once both sides have a firm grasp of the evidence to be presented at trial.

The motion process may cover a range of motions seeking the dismissal of the plaintiff's case for procedural or substantive reasons, motions to exclude the testimony of experts or motions to exclude the presentation of certain evidence during the trial of the matter. These motions go a long way towards setting the terms of engagement for the trial to follow. Work done at this stage can streamline the trial process and keep the jury from hearing prejudicial evidence that is not admissible.

Despite the hype that surrounds a trial, it is a simple event. The parties will have sifted through the evidence and will be prepared to tell their respective stories as to why they are entitled to the relief that they seek. By the time you arrive at the courthouse, your legal team will have fine-tuned your story and will be ready to present it to the judge or jury.

The parties will spend the first part of the trial questioning and selecting jurors. Once the jurors have been selected, each party will be provided with an opportunity to make an opening statement. The plaintiff will then put forward his or her case by calling witnesses and introducing evidence. Once the plaintiff rests his or her case, the parties will make various oral motions related to the plaintiff's burden of proof. After those motions are ruled upon, the defendant will put forward its case. Once the defendant rests, various oral motions are made. The parties then make their closing arguments and the case is given to the jury for consideration. Prior to retiring to the jury room to deliberate, the jurors are read charges that outline the law that they are to apply during the deliberation process.

After the jury has begun to deliberate, it is common for both sides to assume that reasonable jurors will decide in their favour. However, jurors – unlike the litigants – did not have the opportunity to live with the case for the duration of the litigation. They also come to the courthouse with their own pre-existing opinions and life experiences that they will use to decide the case. As such, it is often difficult to pinpoint how a jury will evaluate your case. The jurors' analysis is often at odds with those of the litigants or the judge. This perspective leads to significant uncertainty as to the potential outcome.

Once the jury has reached a decision, it is brought into the courtroom and its verdict is read. After this, the jury is released. The judge will then prepare a judgment based on the jury's verdict. This written judgment is the event that begins the post-trial motion and appeal phase of the litigation. Although the issuance of a judgment signals the end of the trial phase, the final resolution of the claim may be far from over. For example, the aggrieved party may want to continue via motions filed with the trial court in the hope of overturning the jury verdict or taking the case to the appellate court system.

Comment

Litigation can be a significant drain on corporate resources and create some risk for your company. Beginning the investigative/discovery process soon after an accident, bearing the presentation of your case to a court in mind, will help your legal team to put forward a strong case with a clear message as to why the jury should decide the matter in your favour. As with many aspects of your business, spending time and resources early in the process can pay real dividends later. Although a degree of uncertainty is inevitable when litigating a Jones Act personal injury claim with an injured employee, the proper planning can help turn the tide in your favour.

For further information please contact Lawrence R DeMarcay at Fowler Rodriguez by telephone (+1 504 523 2600) or email (ldemarcay@frfirm.com). The Fowler Rodriguez website can be accessed at www.frfirm.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.