When thinking about some of the attributes of a good expert witness, I was reminded of something I had heard in a training course by Giles Eyre that “a good report is a boring report”.
When grammar is used correctly, if the same phrase is used repeatedly then the reader may be turned away by the repetition. In a report provided for litigation, changing the phrasing when the author may be making the same point provides the good advocate the opportunity to try and expose that the expert does indeed mean this as he used different words to express those opinions.
Lets look at a few examples :
“I consider”, “I feel” and “in my view” are all phrases I have seen in expert reports when the expert is giving their opinion.
In my opinion the expert, on balance of probabilities, thinks these are equivalent but the advocate in cross examination will expose the words as different and therefore suggest to the court and the expert that they do not mean the same thing. Medico-legal wording is a vital aspect of report writing.
I had originally drafted this sentence as “ In my view I consider that the expert feels these are equivalent….” But then decided to be boring and used “ In my opinion” instead.
Another example is that in England, the standard against which actions are judged in the Bolam test (of the treatment being reasonable as modified by Bolitho) is that such treatment should stand up to logical analysis.
Why then do some experts use the word “acceptable” as the standard to hold the treatment against when this is not the legal test. This again gives the advocate fuel to challenge the expert in cross examination.
My final example is of the legal standard in civil matters in that the care is assessed “on balance of probabilities” or a probability of more than 50%. Why then do some experts give percentages of chance when if it is more than 50% it will happen and if it is less than 50% it will not happen.
All of the phrases “ In my opinion”, “ below a reasonable standard of care” and “ on balance of probabilities” are coded with shortcuts that means when medico-legal writing I am not tempted to use any other phrase as these are so easy to use repeatedly.
While not suggesting they are the only way of phrasing I would suggest that the expert finds one phrase and uses it repeatedly rather than trying to be inventive with the English language as when writing a novel.