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Appropriate Use of Hyperbole by Experts - Dr Mark Burgin

25/07/20. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how an apparently exaggerated opinion can be consistent with the expert's duty to the Court...

Whilst it is rare that extraordinary language is necessary and even rarer to be applied to a class of cases (as Prof Meadows did) this does not mean that it is never appropriate.

But when would it be necessary to communicate a message that cannot be explained in any other way and to use language that appears to be clouded by emotion?

In the rarest event the experience is too far from any cases that the judge has come across or their personal experience and something more is required.

All experts use a little hyperbole as a tool when trying to paint a picture or trying to explain something in simple terms but mostly they use measured words.

Hyperbole for effect

There are a number of false assumptions that commonly afflict the claimant, the solicitor and even barristers - such as the court process is interested in the truth (rather than evidence).

Other examples are that an expert cannot presume that missing evidence will support the claimant; instructions come from lawyers (they come from claimants).

The use of an apparently exaggerated statement can be effective in getting over the point by using humour to defuse the resistance to giving up the false assumption.

False assumptions can be remarkably difficult to shift even when they contradict the law of physics (RTA movement) or common sense (grey hair and wrinkles are not caused by RTAs).

Where the truth is extraordinary

Few cases upset the expert’s world view and make an expert question the motivations of the people involved as much as immigration removal centres (and child protection).

Experience of torture is outside of most expert’s direct experience and the idea that mentally ill people who have not committed a crime should be imprisoned indefinitely seems odd.

Low pay for asylum medicals has meant that few experienced experts are interested in this work, leaving most reports being undertaken by those with emotional connections.

The difficulty is that both torture and child abuse are common in the world and the expert’s role is not to fight the system but provide calm and reasoned opinions avoiding hyperbole.

Communicating the Experience

There are cases where the facts do not properly describe the material evidence, where the court needs to experience the emotions to make sense of the case.

Often this is achieved in witness testimony when the court hears first-hand from the witness their experience of the events.

Other times it can be from a memory of similar cases or evoked from a description of the events calmly described within the expert’s report.

Where the witness is unable to give testimony, the experience is unique, the expert has few facts then it is possible that to assist the court the expert will need to use hyperbole.

Conclusions

Experts should generally see hyperbole as failure to present evidence properly, taking over the role of the witness or becoming emotionally involved.

It may be necessary to deal with a false assumption in a way that does not make someone lose face and avoids hours of explanations.

An expert may feel that it is appropriate for them to show their emotions in torture and child abuse cases trying to plead but this does not assist the court.

The expert who is communicating to a coroner how, for instance, a dying person felt when repeatedly being told that nothing was wrong might (rarely) need to use this tool.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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