Expert Witness Bias

By: Steven Babitsky, Esq.

When expert witnesses use inflammatory language in their report or testimony, they run the risk of losing their impartiality and being accused of being biased. Each time the jury or fact finder hears one of these words they may wonder how emotionally involved the expert is in the case and whether he is in fact, biased.

Here is an example from a demonstration at a SEAK expert training program:

Q. Your area of expertise, sir?

A. Marketing.

Q. What were you asked to do in this case?

A. Examine the advertising and marketing of a cosmetic product being sold to the public.

Q. Were you an impartial expert witness here?

A. Absolutely.

Q. No axe to grind, correct?

A. That is correct.

Q. Did you find the marketing to be false?

A. Yes.

Q. Misleading?

A. Yes.

Q. Deceptive?

A. Yes.

Q. Intended to purposely mislead the customer?

A. Yes.

Q. But you were impartial?

A. Yes.

Q. You found the marketing to be bizarre as well?

A. It didn’t make sense to me.

Q. Is that a yes?

A. Yes.

Q. You found it to be absurd?

A. Yes.

Q. Science fiction?

A. Yes.

Q. Exorbitantly priced?

A. Yes.

Q. You were pretty upset about the marketing here, correct?

A. No, not really.

Q. You maintained your impartiality throughout the assignment?

A. Well, I really didn’t like the claims so I guess…


The expert witness who unnecessarily uses inflammatory language in his report or testimony is easily portrayed as biased or a zealot.