Your Trial Message

Speak to the Person, Not the Gender

By Dr. Ken Broda Bahm:

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The Grand Old Party is putting a brand new emphasis on appealing to the female voter, even to the point of creating a course on how to speak to and run against women. This comes in the response to recent polling showing a gender gap in party support, and in the wake of a few high-profile incidents (think “legitimate rape“). Originally reported by Politico, the goal of the training, according to Speaker John Boehner, is to try “to get them to be a little more sensitive.” But these fresh messages could risk sounding a lot like stale stereotypes. Iowa Republican Senate candidate Mark Jacobs, for example, was recently asked about the “biggest difference between men and women” in voter outreach. “I think you have to connect with women on an emotional level,” Jacobs responded. “And with a wife of 25 years and an 18-year-old daughter, I’ve had a lot of coaching on that.”

Maybe just a little more coaching is in order. The assumption that women are simply more emotional by nature is a stereotype, and a dated one at that. That level of generalizing, however, is not limited to politicians. There is a similar risk of operating based on broad social assumptions in other communication attempts to adapt to male or female audience members. I have been asked many times, for example, whether “women are good or bad for my case” as if there is some essential quality that people bring based solely on their XX or XY chromosome. Many of these old-fashioned beliefs fade every year but, more recently, brain science has been lending a veneer of legitimacy to the idea that there is a male brain and a female brain. One recent study (Ingalhalikar et al., 2013), for example, led to multiple media reports focusing on new evidence for the claim that men and women are simply wired differently. A critique, appearing appropriately enough in Wired magazine’s Brain Watch, however, provides a solid argument that the study and its associated media coverage has exaggerated the difference. The bottom line is that politicians, lawyers, and others who are adapting based on an image of essential differences between men and women are likely to be wrong a good part of the time. In ways large and small, advocates need to make sure they are speaking to individuals, not abstractions.

 

The Science: Less Support Than You Might Think for a Male and Female Brain

Of course, males and females are biologically different (vive la différence, as the French say). The question is whether those differences extend to brain function. The ultimate version of essentializing the difference between men and women would be to posit basic and reliable distinctions in brain wiring that cause men and women to perceive, reason, and act in different ways. And a recent study (Ingalhalikar et al., 2013) has been interpreted as positing exactly that.

University of Pennsylvania researchers produced maps of brain connectivity, called “connectomes,” using a technique called “diffusion tensor imaging.” Looking at the resulting connections in 949 people between 8 and 22 years of age, the authors concluded that males had more connectivity within each hemisphere, while females had more connectivity between hemispheres. The results, according to one of the authors, Dr. Ragini Verma, “provide a potential neural basis as to why men excel at certain tasks and women at others.” That spawned a swarm of attention in the science and popular media, with many rushing to conclusions like, “girls are made for multitasking”  while male brains “facilitate perception and coordinated tasks” like sports.

But a closer look, in this case coming not only from from neuroscientist Christian Jarrett’s article for Wired, but also University College of London neuroscientist Gerard Ridgeway, says “Not so fast.” According to these commentaries, there are at least two problems with the study as interpreted, both of which being very common issues when science is being conveyed to a wider audience:

Significant But Not Substantive Differences

The study reported the statistical significance but not the effect size of the difference. That “How much?” question is obviously critical. So Dr. Ridgeway’s illustrative calculation of the differences show distributions that contain far more overlap than difference. “The substantial overlap of the distributions,” he concludes, “highlights the danger of assuming that a significant difference from a large sample implies a fundamental/overwhelming difference between the sexes.” The bottom line appears to be that a small effect size is far outstripped by the overall similarity of the male and female brains.

Correllation Without Causation

The study authors admit that it is still speculative to draw conclusions about different behavior based on the relatively small wiring differences between the brains of men and women. And of course, scientists can speculate as long as they’re calling it out. The problem is that these speculations are mapped on some old and unsupported ideas about how men and women differ. As Christian Jarrett explains, ” They dredged up old ideas about the left brain hemisphere being for analytical thought and the right hemisphere being intuitive. And the one brain region where men supposedly had more cross-hemisphere interconnectivity than women – the cerebellum – the researchers linked purely with motor function, which they said supports the idea that men are wired for action. Maybe they don’t realise, but modern research has shown that the cerebellum is involved in lots of other functions too.” Whether brain differences correlate with sex or not, the claims about what this causes in terms of different aptitudes or skills are still unsupported.

Of course, these questions over whether there are meaningful brain differences don’t discount the importance of social differences. For example, there is reasonably good evidence that women are better in groups and may have a higher social intelligence. But even social findings like these are best treated with a grain of salt and a bit of caution. When there are far more within-group than between-group differences – as there certainly are when dealing with such broad categories as gender — that undercuts the goal of using either biology or social group as a reliable cue to selecting or analyzing your audience.

Don’t Talk to Stereotypes

We have already, in several posts (here, here, and here) developed the recommendation to not conduct jury selection based on gender or other demographic elements, so I won’t repeat that recommendation here. Instead, I want to focus on the ways advocates should adapt without overcompensating for perceived gender differences. So here are a few suggestions for increasing your odds of speaking and seeing beyond the demographic.

Talk to Individuals

It sounds simple and obvious, but it is important because we sometimes speak to the abstract: The speaker sees “the audience” and the trial lawyer sees “the jury.” But in reality, lawyers should not be so much talking to “the jury” as they are talking to individual jurors. Follow that in your eye contact by focusing on individuals instead of letting your gaze swim over the crown. Follow that also in your terms of address: “You,” not “All of you,” or worse, “Ladies and gentlemen of the jury.”

Use a Cheat Sheet

We tend to reference what we can see. When talking to a jury, that might mean that we are mentally addressing “the younger woman in the front row” or “the older man in the back row.” Of course, who you are actually addressing is much more than that, and it helps to remember. In our jury selections, as soon as the jury is ultimately seated, we prepare a seating chart that includes each individual by number and name seated in order, as well as everything we’ve learned about that juror during the voir dire. Then we encourage counsel to look at that chart from time to time during trial so they will at least have in mind that they’re talking to “the retired literature professor” or to “the one who’s concerned about lawsuit abuse.”

Have a Reality Check 

Nothing beats a mock trial for disabusing you of your stereotypes, since you will generally see at least as many refutations as confirmations of your assumptions of what people are really like. These reality checks are especially useful in focusing on the juror characteristics that you want to avoid when seating a jury for trial. We are often asked the question, “What does this tell us about who we want on our jury?” We will almost never find a gender-based pattern to that answer. Instead, we will learn about the attitudes and experiences that tend to accompany those individuals posing the highest challenge to our case. And that is exactly the kind of finer-grained analysis that helps us and our clients get beyond the broad-brush demographics.

Republicans will likely be better off doing the same: Talking to actual and individual voters rather than to abstractions for what women are like.

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Other Posts on Gender: 

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Ingalhalikar, M., Smith, A., Parker, D., Satterthwaite, T. D., Elliott, M. A., Ruparel, K., … & Verma, R. (2013). Sex differences in the structural connectome of the human brain. Proceedings of the National Academy of Sciences, 201316909.

Photo Credit: kristin_a (Meringue Bake Shop), Flickr Creative Commons