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Gender in the Courtroom Part 2: Do Implicit Gender Assumptions in the Courtroom Shift During Advocacy?

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Fell_BibianneI 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.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
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