Catherine, I'm not going to quote your posting, but will respond.
Incident reports are "discoverable" in many jurisdictions. That means that in the event of a lawsuit, the "other side" may be entitled to see them. The premise behind the law, as it relates to what is "discoverable" is that legal disputes are best resolved when there is full disclosure of all relevant information. Some courts have talked about how modern practice has done away with the "sporting theory of litigation" in which an adversary can be "ambushed" with information. As a result, if an incident report is "relevant" and not "privileged" the other side can see it.
The law creates certain privileges to promote public policy. For example, the law considers it important that a client can be completely candid with his or her attorney. As such, confidential communications between an attorney and client are privileged and protected from disclosure. (There are a few limited exceptions.) Similarly, since the law does not like invading the bedroom, there is a privilege for confidential communications between spouses. And, because of the separation of church and state, confidential communications with a clergyman are privileged. While these privileges are nearly absolute, the law does not favor the hiding of information in a lawsuit, so the privileges, while vigorously enforced, are narrowly construed.
As to an incident report, it will be "privileged" if it is prepared for an attorney for the purpose of rendering legal services and is otherwise kept confidential. The "client" does not necessarily have to hire the lawyer, just to be communicating where there is the possibility of a retention.
There are splits among the jurisdictions what happens if an incident report is provided to an insurance company for transmission to an attorney. Some treat the insurance company as a "representative" of the attorney and hold the privilege continues. Others say it is waived.
I've had clients who started things like incident reports with salutations like: "Bruce, there has been an incident that might require your services as a lawyer. I wanted to let you know some of the details so you could decide if this is a matter that requires your legal services." The premise is that this salutation makes it clear the report was prepared for me and for the possible rendition of legal services.
In any incident, perceptions will differ among witnesses. I view a trial as being like assembling a jigsaw puzzle. Each fact has a size, shape and color. It is then just a matter of assembling the big picture from the little pieces. If I am missing pieces, the picture may not look right when I'm done. As a result, I prefer to get as much information from as many sources as I can. That does not, however, mean I want my client interviewing witnesses or the witnesses recording their observations of information. I want them to remember it, but I like to be the one that gets the information from, often by way of a simple interview. When I do the interview, the information I get is generally considered my "work product" and is not "discoverable" by others. (It is sort of like a privilege.)
I'm not sure if this helps or not.
As to the phrasing of incident reports, I generally prefer to stay away from absolutes. When one says: "He was dead," they are subject to impeachment if they are wrong. (Note the verb "to be.") The same goes for when one says: "He had no pulse." But, when one says, "He looked dead," or "I felt no pulse," they may be mistaken, but they won't be impeached by it. (I can always say: "I felt no pulse. He may have had one, but I sure couldn't feel it.")
Last but not least: One of the most important things liability insurance does for you is pay for an attorney in the event you are sued. I'm sorry, but we don't come cheep. That's just the way it is. For better or worse, market forces make it that way. (Personally, I think there are many professions that ought to be paid more than lawyers, e.g. teachers, police, firefighters, and the guys who service my regulator.) In any event, there is little worse than winning the lawsuit but having gone broke paying a lawyer. That alone is probably the best argument for having liability insurance. Premiums that seem out of line for the risk, may be high because of the legal costs.
Sorry for rambling on.
