Think twice

It's a small world. I've just got on a train to London and it will take me exactly two hours (from Stockport) to arrive in the capital. I'll get stuck into some work and will be at Euston station before I realise it. Seems the North is not that far away after all.

I'm travelling down to co-deliver a seminar on expert immunity after Jones v Kaney to a major insurer client with members of my team from Liverpool and London. I'm not going to go into detail regarding the case itself as I'm sure that those of you for whom it is relevant have read plenty of articles on the subject already.

One of the potential implications of the decision regarding which there has been some debate is whether experts will be discouraged from acting because of the spectre of possible claims against them. I did speak with one insurance expert earlier this year, before the judgment was handed down in March, who said that he planned to take early retirement if the case abolished experts' immunity, which it did of course go on to do. I must look him up...

Our seminar will emphasise how expert witnesses themselves need to give real consideration to the content of their written reports. That may sound obvious but how many of them truly ponder the meaning of the statement of truth which must appear at their reports' end before signing them? It's quite a big deal as putting your signature to it without having a true belief in the content of the report could amount to contempt of court, which is in some instances punishable by imprisonment. Do you think that sounds sufficiently serious now?

I put a standard line in letters sending out witness statements and statements of case regarding the statement of truth which spells out the above onerous worst case scenario. I do that because I consider it my duty to let clients know what could possibly happen to them if they do not properly read and ensure the accuracy of the whole content of a document which has been produced on their behalf before they sign off on it. I am a little paranoid about slapdash signatures as I am married to a man who rarely takes time to read anything properly before merrily scrawling his name along dotted lines '“ he takes the view that as the family lawyer that particular task (i.e. reading really important but probably very dull legal documents) falls within my remit.

I was therefore pleased to take a call the other week from a witness who was genuinely alarmed by my warning letter and was calling to say that while the witness statement I'd drafted for him accurately reflected our conversations, the events in question had taken place some years ago and he couldn't recall them in technicolour detail. I advised that as per my letter he would be signing to confirm that he had an honest belief in the statement's content, which he did and was therefore happy with. How nice to know that at least some people take heed of my advice.

During the seminar we will also cover the difficult ground of experts' joint meetings and how solicitors can carry out damage limitation exercises in advance. What you don't want is a panicked phone call from your expert during a coffee break in the joint meeting to say that he is utterly persuaded by the clever arguments of the opposition's expert and is minded to capitulate entirely. Such nightmare scenarios will hopefully be avoided if you meet your expert for an advance discussion, and ensure that he has read and knows his way around the other side's expert report, as any obvious points of contention can then be identified and thought about in advance.

Also, the experts' joint statement should ideally be prepared during the meeting by them together (hence the word joint) or you can end up in a situation where your expert allows his opposition, or perhaps that expert's instructing solicitors, to draft it and is then astounded that it does not reflect the discussion as he recalls it.

Hot under the collar

Excitingly, we'll also be covering 'hot-tubbing' of experts, which may sound like a bizarre and exclusive swingers party but is in fact the new trend gripping technology and construction courts across the land.

It is also known in less risqué circles as 'concurrent evidence'. Both sides' experts are put on the stand together, meaning that they can address issues simultaneously rather than judges having to wait several days between each of their testimonies and repeatedly refer back to notes regarding what the other one said. It's quite brilliant really, in spite of its questionable nickname.

However, experts who have first-hand experience of hot-tubbing say that sharing the witness box is a pressurised experience which is not for the timid. If the other side's expert is particularly good, it could be very intimidating for someone with less litigation experience to give evidence together with them.

Will this new development plus the abolition of their immunity see many experts prematurely ending their careers? I think and hope not. Rather, look out for new limited liability clauses and experts' insurance policies popping up near you soon, and choose your experts very carefully.