Report writing and what not to say
Andrew Agathangelou - Technical Director, Driver Trett UK reads between the lines of expert reports and testimony, paying particular attention to what isn’t there.
The press has reported that Japan is struggling to make sure it has enough proficient English speakers for when it hosts the Tokyo Olympic and Paralympic Games in 2020. Apparently, this is at least partly due to the way in which other languages are taught in Japan, with more emphasis placed on the written, rather than the spoken, word.
Fumiko Inoue, a Japanese language lecturer at the Rotterdam Business School, recalled the experience of one of her Dutch students who taught English in a school in Tokyo.
The new Dutch teacher observed that the Japanese students were reluctant to speak English in class. After much encouragement, she managed to get the students to talk and converse with each other in English. However, a senior teacher who was observing the lesson criticised the students for making too many grammatical mistakes.
“If you don’t say anything, you don’t make any mistakes either, of course,” said Prof Inoue.
Similarly, I have been involved in a number of formal disputes where the expert on the other side has chosen not to say anything with regard to a particular matter in dispute, whether verbally or in writing. The reasons appear to be numerous:
- The matter in question would not support the case they were presenting.
- The issue was considered to be too complex to be dealt with in the time available.
- That they were simply afraid to make a mistake.
In a recent dispute, in which I acted as delay expert, my opposite number stated that there was no delay in the first four months of the works, and therefore there was no requirement to investigate the cause of delay. To demonstrate this, he produced a ‘windows analysis’ for each of the first four months of the works, with each window containing a baseline programme that established the progress of the works against each construction activity with a staggered progress line.
On close examination of each of his windows, it transpired that the staggered progress line had not been straightened, i.e. the activities had not been rescheduled to their earliest commencement dates based upon the progress to date. Had the expert straightened the progress line (as he should have done) it would have shown that there was a significant delay in the first four months of the works, and that his client was culpable for the delay.
The delay expert, in this instance, simply chose not to say that he had not rescheduled the first four windows, because it was harmful to his (or his client’s) case.
On another dispute, the expert on the other side presented an as-built programme containing an as-built critical path. The expert was silent about how the critical path had been established. A closer inspection revealed that the expert had hand drawn the as-built critical path in the precise location he wanted it, to support the case he was presenting. A lawyer’s recent advice to me comes to mind, ‘if you don’t write about it you won’t be cross-examined on it.’
Therefore, the expert must always be mindful, not just of what is being said by the other side, but what is not being said. Silence isn’t always golden.
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