In 19th century America, no one was concerned with gender bias in the courtroom because, well, there were no woman attorneys. Few law schools were willing to enroll women let alone award diplomas to “the fairer sex.” In 1875, the Wisconsin Supreme Court denied Lavinia Goodell admission to the state bar based on her gender. The Chief Justice wrote, “The peculiar qualities of womanhood, its gentle graces, … its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.” Since then, however, the roads of progression have been paved by hard-working women like Ms. Goodell. Now, females are being admitted to law school in almost equal, and sometimes greater, numbers than their male counterparts.
Despite these steps forward, we have heard numerous stories about jurors’ reactions to female members of trial teams. In one trial, a male juror repeatedly winked at a female attorney during trial. In another case, a jury sent a note to the presiding judge asking for the lawyer sitting at the end of a table to keep her legs together. If jurors overtly and explicitly display such gender-based attitudes and actions one can only imagine the prejudices that go undetected in the jury box. The critical question is: What implicit biases do jurors have of women in the courtroom, and what, if anything, can be done about it?
A person’s gender bias is often outside his or her conscious awareness and implicit meaning that it can occur without realization and, more disturbingly, in stark contrast to one’s consciously held explicit beliefs (Banaji & Greenwald, et al., 2002). Banaji & Greenwald posited that that social behavior is not completely under our conscious control but, rather, is driven by learned stereotypes that operate automatically or unconsciously when we interact with other people. Recent research has reiterated that implicit bias (also called hidden bias) is real and has real-world consequences; it raises issues of fairness in trials that are supposed to be a search for the truth regardless of, among other things, the gender of the presenting attorneys. The fact that we even ask questions about jurors’ perception of women attorneys is evidence of this gender bias. Questions like those listed below.
- Do jurors notice different things about a woman attorney-presenter compared to her male counterparts?
- How does that affect the way jurors hear and assess her performance?
- Do they judge how a woman attorney dresses or how she acts?
Identifying implicit and explicit stereotypes and looking at their potential effects in the courtroom can help equalize the playing field and neutralize pre-existing juror biases.
Jurors’ Opinions of Women Attorneys: What Research Shows
There are some common myths when it comes to gender bias and jurors. For example, it seems many times attorneys will say, “I know I don’t want women jurors, because women do not like women; therefore, women jurors do not like women lawyers.” However, research indicates that this is not necessarily true. In psychology, similarity-leniency refers to the tendency of people to prefer others who they believe are similar to them. Thus, it may be more likely for female jurors to favor a woman attorney over a man when they perceive that she has similar attitudes, beliefs and values as them.
Another impression is that women attorneys will be perceived as “softer” and more “feeling” in certain kinds of cases, whereas a male attorney is more able to convey a “harder” and more “confident” message. Generally, research supports that female advocates tend to be viewed as more ethical than male attorneys, and while male attorneys are viewed as more competent, this finding is specific to certain genres of litigation. For instance, female attorneys have been found to be perceived as more competent in cases that involve family or health issues, while male attorneys are perceived as more competent in complex, technical cases. Meeting such juror expectations can often give one party the edge in the courtroom.
So, must women act like men in the courtroom? No – success in the courtroom is not gender-dependent. The key to all successful presentations in the courtroom is the balance of self-presentation and the impression of confidence.
Managing Gender Bias
What can be done? What traits should a woman attorney convey to decrease existing gender bias and increase juror confidence in her? While exuding confidence is an essential trait for females to convey, for jurors there is a fine line between assertive, commanding confidence and aggressive, antagonistic behavior. The good news is women, typically, are less likely to be bullying or bellicose when aggression is called for, and instead are more likely to use “hardball” or high-risk tactics to convey messages. The bad news is that women are generally more likely to be low-key and controlled in their presentation styles, which can also convey weakness.
So how can a female attorney present herself as competent, but not overly aggressive to the point it is a turnoff to jurors? The sparing use of sarcasm and anger, ignoring hostile remarks and employing humor when appropriate to lighten the situation are all marks of a competent female attorney. Research has found that male opposing counsel are more likely to attempt to use credibility-lessening strategies directed at a female counterpart, insinuating that emotions have clouded her perception and making comments to draw attention to physical appearance. To avoid playing into those gender stereotypes, the best strategy is a simple one: Ignore such attacks on credibility and avoid the appearance of drama or overreacting.
As early as voir dire, women attorneys can begin to connect or identify with jurors, particularly those who may harbor gender biases or display hints of suspicion about an attorney’s capabilities. Relating the case topic to jurors will help to engage them immediately. This can be as simple as telling a relevant story and incorporating clear language to get your message across. Do not challenge traditionally female values such as motherhood and family, these stories are accepted as a part of jurors existing schemas for women. Moreover, the use of non-verbals, such as increasing eye contact and using affirming head nods, are another way to build rapport and connect with the jurors throughout trial. Importantly, simply being respectful – not just displaying courteousness toward opposing counsel – but also having consideration for jurors can go a long way in earning jurors’ attention and reciprocal respect. Research the venued community and attitudes ahead of time. Do they hold traditional values or are they a liberal community? Play into those characteristics. Understand that female jurors especially may be uncertain about their role in the juror process, and it is up to you to put them at ease if you want them to trust you. Take advantage of the support you can receive from other women who feel you are similar to them. The more a juror views herself (or even himself) as similar to the female attorney, the more positively the juror will perceive the attorney.
In addition to courtroom behavior and rapport-building, women attorneys can bolster their credibility through their style of speech and some carefully chosen words. Men create impressions of confidence by using powerful language, while women, because of socialization, have a tendency to use powerless speech. Powerless speech involves using hedges (e.g., “kind of,” “I guess,” etc.) or qualifiers (words that increase or reduce the absolute quality of a statement: e.g., “very,” “most,” “least,” “sort of,” etc.) and using a slow rate of speech. Research shows that the powerless style of communication produces less favorable reactions from male and female listeners alike; therefore, powerful speech (quicker speech rate, few hedges or qualifiers, demonstrating personal conviction, etc.) cultivates credibility.
Finally, like it or not, people focus initially and automatically on women’s appearance and style of dress. Jurors often comment on women attorneys’ clothes, shoes and general style. In the courtroom, stay true to your style, but be aware of fashion “DOs” and “DON’Ts.” Jurors tend to be more in tune with general fashion trends versus whether a woman attorney is wearing a skirt or pants, blue or black. Be comfortable and feel confident in what you are wearing and remember that jurors focus on professionalism. Being feminine does not translate into overly “girly” or ostentatious – jurors want you to be yourself. While the micro mini-skirts of Ally McBeal are not appropriate, neither is dressing like Barbara Bush for a woman 30 to 50 years her junior. Your style should fit who you are. Pursue styles that make you look professional and feel powerful and assured so that jurors are more likely to see you that way as well.
It is not easy to refine one’s presentation and communication styles. Most importantly, it is key to “act like yourself,” because wasted cognitive efforts trying to be someone else will only impede performance overall (Ubel, 2003). Balance is key. By following these basic guidelines, and attempting to incorporate them into your own presentation style, you can help take the focus off of gender in the courtroom and put it back where it should be – on the case.
By Elizabeth Babbitt, M.A., and Jessica Baer, M.A., Consultant