By Dr. Ken Broda Bahm:
I’ve sometimes been asked, “what is the effect of the attorney’s gender to a jury?” It would sure be nice to be able to reply, “it doesn’t matter — a good attorney is a good attorney.” But what does the data say? Last week, the Forbes-affiliated “She Negotiates” blog reported on a survey conducted by the consulting firm DecisionQuest of several hundred jury-eligible individuals on the subject of gender in the courtroom. The survey’s conclusion: “In the vast majority of cases, the gender of the advocates simply does not matter to jurors.” Hurray, right? No, not so fast: Based on the survey’s method and other research on attorney gender, advocates are on firmer ground assuming that there is at least some bias that at least some jurors will attach to a female attorney.
The problem with the DecisionQuest approach is that it focused on self-reports and self-perception of bias — sort of like asking “are you sexist?” There is a strong social desirability bias weighing in favor of saying “no, I’m not!” So 97 percent of their survey respondents feel that “female attorneys are no more or less qualified than male attorneys,” and that at least carries the good news that overt and intentional bias is out. But the question is whether jurors behave in a biased fashion in response to male and female attorneys. And here, there is a fair body of research saying, “yes, they do,” and that conclusion is buttressed by a recent study showing that female attorneys don’t even fare equally in front of the United States Supreme Court. This post takes a brief look at this gender bias in the courtroom and provides a few simple lessons for advocates to apply in resisting it.
The Research: Still Not Quite Equal
DecisionQuest’s conclusion that “female advocates have little left to fear” seems premature. One reason is the complex fact that people are not just dealing with their own biases, but their perceptions of other people’s bias. As one of their study respondents explained, “I don’t think [female attorneys] are any less qualified than males, but I would prefer a male attorney because, sadly, there are sexists in juries and they’re most likely to favor male lawyers.” Clients or experienced litigators assembling their own trial teams may face the same quandary — they’re not biased, but what about those who are? Several classic studies (e.g., Hodgson & Pryer, 1984), as well as my own dissertation (Bahm, 1993), have shown that when an identical presentation is attributed to either a male or a female attorney, the female advocate will be viewed as having less credibility. No research shows that it is a huge difference, and no analysis says that it can’t be overcome by effective performance in the courtroom, but in an arena where small differences can often turn the case, it is certainly discouraging to know that gender bias is not only alive, but living within the very system that is supposed to be righting the scales of justice.
One particular recent study is a little jarring in that regard. Three professors (Szmer, Sarver & Kahaney, 2010) looked at trial team composition at the highest level and found that even U.S. Supreme Court justices are less likely to support litigants represented by women, and teams with a higher proportion of women are less likely to win before the Court. Now, naturally, there are other ways to interpret the data (e.g., teams that choose to represent a less-favored party may also be more committed to diversity), but the researchers also found that judicial ideology played a role, with conservative judges being more likely than liberal judges to find for the team with the lower proportion of women.
Don’t Replicate Bias in Court
This isn’t a matter of simply fixing your advocacy. There is no message or communication strategy that would cause someone with an implicit bias to set that bias aside. At the same time, there are a few pointers that you can take to heart in order to make sure you aren’t replicating or extending the bias in your own trial staffing decisions.
1. Avoid Window Dressing. More than one trial team has looked at a case with some sort of gender issue to it, or looked at the gender of opposing counsel or judge and asked, “Do you think we should add a woman to our team?” The best answer is generally, “Not for the reason that you’re thinking.” Bringing in “a female” late in the game often means an associate who warms the counsel table or someone who takes a couple of witnesses at most. That approach is quite likely to be seen (accurately) as a move targeted toward appearances, which could insult the jury. Jurors understand and appreciate the fact that more experienced lawyers take more central roles and less experienced lawyers do less, but when that difference splits along gender lines, it just serves to underscore the lack of equality on the team. If you aim to balance your trial team, you should also aim to balance the substance of the responsibilities during trial.
2. Avoid Essentialism. The idea that there are some inherent qualities that differentiate men and women as advocates is a popular notion, but can be a dangerous one as well. The belief that there is a distinct “female voice” that separates thought, demeanor, and advocacy is a stereotype, or at least an exagerration. You can find about as many exceptions as confirmations of the rule. Some women convey a more caring and relationship-oriented demeanor, but so do some men. Some men convey more of an analytic bottom-line style of thinking and advocacy, but so do some women. If that quality is important to your message in your case and your beliefs about what will work in front of your judge or jury, then you need to look at the individual not the gender.
3. But Embrace Diversity. For the team asking two weeks before trial if they should bring in a woman, the time to have done that is the beginning of discovery. Diversity is a good working approach, but it is not a trial strategy. Your choice to foster a diverse working team speaks more to your open-mindedness and your ethics than it does to your chances of winning. There is, however, research showing that more diverse working groups are smarter, because they make fewer common assumptions, they also make fewer mistakes. So, if you are bringing more gender balance to your trial team in a way that is genuine and not artificial, then you are improving your team and continuing to work against a subtle but persistent bias. And that, after all, is justice — the reason you went to law school.
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Other Posts on Gender:
- Don’t Count on Gender Differences When it Comes to Compassion
- Take a Note From an Anonymous Law Firm: Don’t Look For Discrimination if You Don’t Intend to Do Anything About It
- That’s Right, The Women Are Smarter: Pay Attention to Your Jury’s Social Intelligence
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Szmer, J.J.; Sarver, T.A., & Kaheny, E. B. (2010). Have We Come a Long Way, Baby?: Female Attorneys before the United States Supreme Court Gender and Politics
Photo Credit: Trishhhh, Flickr Creative Commons