I have never worked for a female trial lawyer. I was, however, fortunate to work for very skilled male advocates, one of whom identified the great women trial lawyers in my community and told me to watch them. He told me to take note of how they talk, how they interact with other lawyers, how they dress, and how they argue in the courtroom. I took his advice. He was right. They carried themselves with uncommon grace, commanded an audience even with their diminutive stature, argued just as well as the best men I had seen, and seemingly had their audience eating from the palms of their hands. They were, and still are, highly effective advocates. They did not appear to have any less of an advantage than their male counterparts.
After witnessing how effective these women advocates were and how receptive their audience was to them, I was surprised to learn that studies indicate implicit gender bias is still pervasive in the courtroom (see Part 1 of this series). How could widespread bias be harmonized with my experience watching such great advocacy? Perhaps the reported gender bias measures only initial, superficial biases that women violate gender norms by being career, rather than family, focused. Maybe when the subjects of the studies focus on advocacy, and not mere presence in the courtroom, an unconscious shift occurs. Such a shift could explain not only my observations, but also why the jurors studied by DecisionQuest (discussed in Part 1) reported that they did not believe women were any less qualified than men.
Current studies report findings that an overwhelming majority hold the implicit bias that men are associated with career and women are associated with family. Researchers at Harvard University, the University of Virginia, and University of Washington created the Implicit Association Test, designed to measure implicit attitudes and beliefs (https://implicit.harvard.edu/implicit/). Currently, 76% of respondents automatically associate Male with Career and Female with Family. Only 6.3% of respondents automatically associate Female with Career and Male with Family. Interestingly, this implicit bias is often diametrically opposed to conscious feelings about gender.
Whether gender bias in the courtroom is linked to the art of advocacy, i.e., the extent to which courtroom advocacy is viewed as masculine, has not been directly explored. A 2010 study by Emily Amanatullah, PhD, however, may shed some light on this issue. Dr. Amanatullah, a professor at the University of Texas, examined gender and advocacy (both self-advocacy and advocating on behalf of another “other-advocacy”) and found that zealous advocacy does not violate gender norms so long as women are advocating for others. In her findings, Dr. Amanatullah suggests that self-advocacy is stereotypically masculine; for example, when a junior employee demands a raise from a superior.
In her recent book Lean In, Sheryl Sandberg discusses this phenomenon: “Our stereotype of men holds that they are providers, decisive, and driven. Our stereotype of women holds that they are caregivers, sensitive, and communal.” Sandberg concludes that because of these stereotypes, women who self-advocate give a negative impression and are not as likeable. Citing to Dr. Amanatullah’s study, Sandberg notes, however, that women can advocate as successfully as men when advocating for another, “because in these cases, their advocacy does not make them appear self-serving.”
Dr. Amanatullah’s study found that other-advocacy is viewed differently in the context of gender than self-advocacy. Other-advocacy, she concludes, comports with more stereotypically feminine roles; for example, defending one’s falsely accused child. According to Dr. Amanatullah, the person for whom the woman is advocating is “pivotal in determining how assertive bargaining is interpreted.” Dr. Amanatullah observes, “When a woman negotiates on behalf of others, it is encoded as congruent with communal femininity.” While her study noted a marked difference between men and women engaged in self-advocacy, it noted little difference between the assertiveness of men and women when advocating for others.
If Dr. Amanatullah’s study is applicable to the courtroom, it could mean that while women step out of unconscious gender expectations when they step into the courtroom they subsequently step back into them when they begin to actively advocate for their client. The existence of such a shift in unconscious assumptions could explain both the widespread existence of gender bias in the courtroom and the ability of exemplary women advocates to quickly break through bias and level the playing field.
This guest post was written by Bibi Fell. Ms. Fell has received a number of professional awards and recognition including being twice named a Top Young Attorney by the San Diego Daily Transcript, a Rising Star by the Philippine American Business and Industrial Development organization, and being selected as the 2012-2013 Official Representative and Ambassador for the Filipino-American community in San Diego.
Are you new to trial work? Buy this book. Not new but wondering why you’re not much good? Buy this book. Are you experienced and wanting to give a useful gift to a much less experienced, but capable of learning advocate. Buy this book.
With the ‘who can benefit’ issue now out of the way let’s have a look at the interwoven ‘why’ and the ‘what’.
This book doesn’t just give examples of good advocacy. Anderson succinctly, clearly, and persuasively explains why a number of them are good. And sometimes he is wickedly funny. Evidence and advocacy teachers should use his mock trial ‘how, when and why to make objections’ script as a timeless teaching tool.
Those readers who understand that ‘decision maker indoctrination’ trumps ‘sadistic endeavor’ as the hallmark of effective cross-examination can convince the rational doubters by showing them what attorney Roy Black achieved when he crossed a prosecution witness in the Smith rape trial. The transcript still sings.
Anderson comments that he once heard that, ‘the definition of a nanosecond is the amount of time it takes for a newly appointed judge to forget what it is like to be a lawyer after taking the judge’s oath’. He thinks that is something of an overstatement. It might be added, however, that too many of those judges who choose to publicly comment enter an ‘evidence free zone’, substituting assertion for the evidence (rather like those advocates who do bad directs). But not Anderson. Here’s that rare trial judge who gathers evidence of what happens in his court room over many years and then uses that data to offer useful insights to those of us with much less experience, no aggregated data, and so only ad hoc anecdote to guide us. Maybe some of those advocates who keep on talking, talking, talking will read his lessons that juries want us to learn, reflect and finally fathom that being repetitive, turgid, and boring is not the way to win the hearts and minds of decision makers.
For all of us, there’s a useful two page checklist of ‘do’s and don’ts’ for closing argument. Put it in your trial reference folder, and use it as a tool to bring some objective critique to the closing you’ll deliver after lunch or tomorrow morning.
While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests. The jurors’ body language was unambiguous. It’s hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury’s needs and wants is one of the ‘common mistakes to avoid’ that Anderson addresses.
Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery. Anderson cites the 1993 National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done; about 15 % when the prosecution/plaintiff rests; a bit less than 50% when the defense rests; up to 75% after the closings and judge’s instructions; and 25% in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.
Talking about judges, their strengths and foibles, Anderson admits that he knows of judges who bully. There is not much you can do, he says, ‘except respectfully and steadfastly hold your ground’. That, however, takes courage of a sort rarely seen. I watched from the public gallery recently as a judge got down into the ring to ask some questions. The witness’s advocate, quite properly, stood to object. The judge cut her off with a ‘Sit down’. She did. I felt for the witness, paying out good money for nothing.
Paying out money for this book though is well worthwhile. It should sit alongside some other texts that have more to say and suggest about questioning techniques. Anderson’s comments on those matters reflect the orthodoxy of the past. We know more now than the late esteemed Irving Younger about effective questioning, especially about story telling and picture building on direct and indoctrination of the audience on cross.
So if you’re one of those many who should have this book let it join those other ‘how to do it’ trade books, and let it become as well thumbed and ragged as all such books should be.
Hugh Selby © March 2013.
You can find Effective Courtroom Advocacy here.
In the last decade there has been much talk about whether gender bias still exists in the courtroom. The articles that address the issue are largely based on observation, and the few older studies that have been conducted have either simply collected those observations or targeted only conscious bias. Not surprisingly, the studies conclude jurors deny having any conscious gender bias. However, earlier studies and recent anecdotal pieces suggest that despite the absence of conscious gender bias, unconscious and subtle acts of gender bias continue to pervade the justice system.
In 2012, DecisionQuest, a jury consulting organization, conducted a study wherein they directly asked jurors whether they had any gender bias. The findings were:
While the foregoing findings indicate jurors do not see themselves as having gender bias, the comments by the respondents suggest gender bias still exists. For example, one respondent commented that female attorneys are “equally competent, but possibly less respected by the average person in society.” Another commented, “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 going to favor male lawyers.”
Surprisingly, studies on this subject are few and far between. Other than the work by DecisionQuest, the studies are much older, and focus on anecdotal evidence and subjective interpretations.
Even if unconscious bias pervades the justice system, there are clearly some women who have figured out how to overcome it and succeed in the courtroom. Their advice to young female lawyers includes:
More than 50% of law school graduates are women. Social awareness of gender issues is increasing. Many attorneys, judges, doctors, government leaders, and business executives depicted on television are now women. Perhaps these changes will help shift perceptions and replace unconscious gender bias with new-found respect and acceptance.
Bibianne is a Partner at Fleming & Fell PC. She was a member of NITA’s faculty from 2008 through 2012, and recently became the Program Director for the Depositions Skill: Pacific program. We would like to thank Bibianne for her perspective on this topic, and we’d like to ask you to comment below with yours.
Trial lawyers are paying more attention to the matter of implicit bias because of its role in the link between presentation of facts at trial and the brain’s ability to judge those facts fairly. I presented a webinar yesterday on this topic for the International Association of Defense Counsel. Our NITA community is equally interested in this important aspect of influencing decision-makers to “do justice.” Here are some thoughts. I welcome your comments in response – just write to us below.
Together, neuroscience and social psychology prove that each human brain adopts, retains, and relies on shortcuts to thinking, and is totally unaware of these shortcuts. Project Implicit is an interesting way to experience this subject. Indeed, not only is each of us unaware of what our bias may be on a subject, but we also are helpless to even recognize the effect of a deep implicit bias in a situation (thus the term “implicit”).. This is not always a bad thing – I can instantaneously jump off the sidewalk when I hear tires screeching and a nearby engine racing, and wait to gather facts by looking back after I know I am safe. My brain knows the danger based on experience. It makes me act first; I can gather facts and think later. Or don’t gather facts or think later – simply act upon what I can proudly look back on as quick reactions and a wise move.
Acting upon what I perceive to be “wise” and moving on, without even knowing that a bias was a short-cut to thinking that influenced my judgment, is the heart of the justice issue for trial lawyers. Particular with juries, but equally with judges (or your significant other or work partners), trial lawyers cannot know what biases lurk in the minds of their audience. You know the feeling of waiting for the jury to return – hopefully they heard and remembered the facts, hopefully together they understood the facts, hopefully they relied on the facts they heard and not on outside influences. But to know that their brains bring implicit biases that short-cut or discourage their full consideration of the facts – without their even being aware of the influence – that is something more to worry about. Their oaths are intact; they are helpless to know whether “values” and “biases” are mixed up in a quagmire of assumptions that now influence their verdict. Until someone calls it to their attention; hopefully not too late. Please see NITA’s February 6 blog post for such a story.
Research in social psychology, cited by Professor Joan Williams at The Hastings College of the Law and others, shows that once the influence of a taboo bias or set of assumptions, such as race, is recognized by a jury, the members of the jury will self-correct, or attempt to do so. There are powerful implications for the attentive trial lawyer who is preparing to present to a jury.
The research in this area is not light stuff. It does, however, suggest new practices and skills for trial lawyers. Doing justice better by effectively presenting to juries whatever their human foibles is a sweet spot for NITA. I hope you will share your comments on this topic.
Karen M. Lockwood, Esq.
Nita City Housing Authority v. Johnson, Second Edition is now available. Written by Mark Caldwell, NITA’s Director of Resources for Public Programs, this case file examines, among other issues, an important question: when is graffiti considered gang activity, and when is it considered art?
Nita City Housing Authority v. Johnson is a wrongful eviction case, filed in response to Ladonna Johnson’s refusal to follow eviction instructions. Nita City Housing has evicted Ladonna, her two grandchildren, and her great-grandchild from their apartment at the public housing complex Nita Gardens. Nita City Housing Authority claims that Ms. Johnson’s grandson, Elroy, is involved with a local gang and is putting the other complex residents at risk by hanging out with gang members on the property and writing graffiti in the neighborhood. Elroy insists he is not involved with gangs and that he only tags as an art form.
Ms. Johnson is disputing the eviction notice, and believes that it is being served in response to her recent protests. She had formed a Tenant Action Committee and staged public protests in and around the complex when the building management refused to install a complex-wide fire sprinkler system. Ms. Johnson contends her rights to peaceful protest were challenged, and she is being evicted because of the protests.
Nita City Housing Authority v. Johnson is a modern and relevant case file that considers issues taking place throughout major cities. Graffiti is becoming increasingly recognized as a valid art form, not solely a gang-related activity, and charges involving graffiti will have to start accounting for this shift in perspective. The case file also examines classic issues around eviction rights and rights to peaceful protest. Students, practitioners, and professors will find this case file engaging and challenging.
The case file includes a CD with full-color exhibit slides as well as a sample PowerPoint presentation of the exhibits.
ISBN: 9781601562142 ∙ Pages: 114 ∙ Retail Price: $35.00
Order Now at lexisnexis.com.