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.
This post is written by guest blogger and NITA faculty member Hugh Selby.
That cross you’ve just done, it’s the best I’ve watched and heard from you. Your questions were mostly closed, only open when you clearly had weighed up the possible costs against the benefits, nice and short and easy to understand, and well paced. You gave us all the time to reflect too – that’s so often forgotten by ‘gladiator-like’ cross-examiners who want to rush at the target and mistake the quantity of questions for the quality. That pause between the witness’ answer and your next question—well done. Those are all aspects of good cross that everyone here can admire and copy.
But here’s the ‘but’ – and this is the reason that you’re in this room, to learn the ‘but’ and how to fix it. In that last performance we were all your jurors, we were your key audience, but… you never considered our needs and our wants. Your performance was for you and the witness. It was personal; it was singular when it should have been for us. We, not the witness, are the targets of your persuasion.
The fix, now that you’ve mastered the simple technique methods, is to bring us—the decision makers—into your cross-indoctrination. To do that, ask the questions with a mix of body language and tone that shows your concern for gaining our respect, keeping our interest, and achieving our acceptance of your message. So look at us sometimes, share the topics of your cross with us and the witness so we know the journey on which you’re taking us, keep using those pauses to allow us to reflect, and direct our minds to be aligned with your case theory. That way, when you make your closing argument we’ll already be persuaded.
OK. Let’s have another performance. Let’s all aim during our questioning to build and keep a rapport with our decision makers.
Hugh has been a faculty member for NITA at multiple Building Trial Skills programs, including the National program in at which he taught. We would like to thank Hugh for writing this post and sharing his knowledge, and we would like to invite you to comment below with any questions or thoughts.
Professor Michael Asimow of UCLA Law School said that about the subject of this month’s review, Anatomy of a Murder. I might disagree a bit (I can make a strong argument for My Cousin Vinny), but I think any trial lawyer who’s seen Anatomy of a Murder will put it right near the top of their list; it was Number 4 on the ABA’s list of 25 Greatest Legal Movies. The reasons for that are many.
First of all, there’s the story. Set in a small town in Northern Michigan, it centers on an army lieutenant (Ben Gazzara) who’s accused of killing a tavern owner who allegedly raped the lieutenant’s seductive wife (the ever-fabulous Lee Remick.) The lieutenant is defended by the recently-ousted district attorney, played by Jimmy Stewart in one of his best ever performances. The defense attorney, assisted by his older, hard-drinking lawyer buddy (Arthur O’Connell) comes up with a defense based on an old—and real—Michigan precedent: “irresistible impulse.”
Interesting enough as it goes, but unlike much of what is claimed in the movies and on TV, Anatomy of a Murder actually is “based on a true story.” The basis for the movie was a book of the same title, written by Justice John D. Voelker of the Michigan Supreme Court under a pseudonym. (The book is well worth reading, too.) The book, in turn, was based on an actual murder case where Justice Voelker acted as the defense lawyer. The film was shot on location in the town where the actual murder happened – including in the tavern where the real killing took place. A number of the jurors who sat on the real trial are members of the jury in the film.
The film is masterful in showing how lawyers put together a case and present it in court. But it also contains some of the most close-to-the-line ethical issues ever put in a movie – especially the scene where Stewart and Gazzara discuss what defenses may be available. When Mark Caldwell and I show that scene at programs, it’s almost always a 50/50 split between participants who see it as “ethical” versus “unethical.”
In addition to having some excellent examples of what goes on in a courtroom, the movie was ahead of it’s time for its forthright discussions of sexual assault. Made in 1959, it caused some aggravation for what was seen (for the time) as “graphic” language, such as reference to a “sexual climax” and the use of the word “panties,” which the trial judge actually has to gently admonish the jury about.
A word about the trial judge. He was portrayed by Joseph N. Welch, counsel for the Army in the Army-McCarthy hearings in the ‘50s. He was a lawyer to be admired, the one who took on Joe McCarthy with the famous statement: “Have you no sense of decency, sir? At long last, have you left no sense of decency?” Welch makes a great judge here, but lawyers should revere him for his courage in real life, too.
Anatomy of a Murder was highly regarded in its time, and its stature has grown over the years. It was nominated for Best Picture, Stewart was nominated for Best Actor, and both O’Connell and George C. Scott were nominated for Best Supporting Actor (Scott plays a prosecutor from the state AG’s office with such oily fervor that you feel a little tainted just watching him. But he gets what’s coming to him by asking a question on cross-examination that he doesn’t know the answer to.). There were other nominations for writing, editing, and cinematography. Duke Ellington wrote the score and appears in a minor role.
I could go on. But I’ll stop so you can go watch Anatomy of a Murder for yourself. Enjoy!
We invite you to comment below with your thoughts on Anatomy of a Murder or with your requests for a movie you’d like to have Judge McGahey review.
For Part Two of our series on Diversity in the Courtroom we aimed to address the question: As a trial lawyer, how do you approach the issue of potential juror biases – explicit and implicit – based on race, in situations that may arise in the courtroom? To accomplish this we reached out to Craig Thompson. Craig is a practicing trial lawyer at both the state and federal court levels and is a Partner at Venable LLP and has been a NITA faculty for NITA at the Building Trial Skills DC Program.
Juror bias is real, and must be acknowledged in order to achieve the goal of winning your case. Jurors are human beings, and we each carry biases with us wherever we go. In an age of technology-driven imagery and bullet point information gathering, it is even more likely that human biases will be nurtured, as many of us become less likely to take the time to study and appreciate what makes us different. Recent reports have determined that the average American over the age of two spends more than thirty-four hours a week watching live television — plus another three to six hours watching taped programs. Our thoughts about humankind – including ideas about race – are driven into our psyche in millions of bits per second that we may or may not seek to counter with additional facts.
As a trial lawyer, I approach the issue of potential juror bias in a pragmatic manner. Noted psychologist Julian Jaynes likened awareness to “asking a flashlight in a dark room to look around for something that does not have any light shining upon it.” As far as that flashlight is concerned, the room is completely bright. I approach potential juror bias in a similar manner, and make sure that I am consciously aware of the fact that each juror with whom I come into contact may hold some form of implicit or explicit racial bias.
I tried a case a few years ago in a southern jurisdiction, and felt unsure about how a jury from the south might view an African American defense attorney. At one point, I even considered allowing my partner to handle a majority of the witnesses and engage in more juror face time. Eventually, I came to the conclusion that the best way to approach potential juror bias is to confront it directly. Facts are facts. The law is the law. Trial lawyers are, in essence, storytellers, and we have to develop the ability to tell our clients’ stories in a way that all can relate. I prepared for my trial like I had for the prior fifteen years, and told my client’s story. And won. Whether the jurors felt any bias for or against me did not matter – I was able to focus on the facts and the law, and tell my client’s story.
Conscious of the “flashlight effect” described above, I worked extra hard (as I seek to do in every case) to dismiss any notions of intellectual inferiority or under-preparedness, assuming one or more jurors may have implicitly or explicitly held those beliefs. As the saying goes, hard work beats talent when talent does not work hard. When provided with an opportunity to play against type, it is critical that attorneys of color step up and demonstrate mastery of the facts and law.
Assume bias exists. Acknowledge it, accept it and act on it.
To read more of the posts on the Diversity in the Courtroom series:
We invite you to comment below with any thoughts or experiences you have regarding Diversity in the Courtroom.
Guest blogger Ahmed Davis, who is launching February’s series on diversity in the courtroom, deems himself a scientist with a law degree. A chemistry major, he won the Ronald E. McNair NASA Scholarship which is designed to increase the number of minorities with PhDs in the fields of science, math, and engineering. With the “right stuff” to enter a PhD program, he turned instead to combine science and law for justice, and has bagged numerous awards for stars “under 40.” Now Partner and National Diversity Chair of the IP trial firm Fish & Richardson PC, Ahmed shares some thoughts about counsel, clients, jurors, and jurists around the theme of diversity in the courtroom.
The first day of my federal district court clerkship was the final day of a multi-defendant bank robbery trial. Barely introduced to chambers, I suddenly found myself ushered into the courtroom to cry “oyez”—the jury was ready to return a verdict. Three defendants, each African-American and each represented by African-Americans, rose to hear their fate. Afterwards, my judge thanked the jurors for their service and sent them on their way. And that is when Juror No. 12—a young, Caucasian woman and the last of the jurors to exit the box—slipped past the two Caucasian prosecutors, flashed a thumbs-up, and said, “Good job. We made up for O.J.”
Thus began my legal career, with a lesson that we all can heed as much today as I did thirteen years ago. Despite our best efforts and the great strides we have made in this country, implicit race-related biases remain and can be brought into the courtroom by anyone. We are, after all, products of our environment, and that sometimes engenders in us feelings antithetical to the higher moral ground to which we rightly aspire. An astute counsel—regardless of ethnicity and independent of practice area—best serves the interests of her client and the larger legal profession when she prepares her case with the very real biases we each carry with us into the courtroom in mind. If handled poorly, this can affect the outcome of your client’s case and irretrievably disconnect you from the jury.
When my trial witness, a diminutive Caucasian woman in her 50s, cried during my cross-examination I was unmoved—until I peeked at the jury and realized that a tall, goateed black man with a deep voice bearing down on her presented bad optics. Never mind that I was in a suit and we were in a courtroom; had I continued, I would have lost the jury. In another case, I understood completely why my Chinese-American opposing counsel explained his heritage and American upbringing during counsel introductions. Representing a Japanese defendant in Texas on Pearl Harbor Day, he appreciated the moment and the unspoken bias the jurors might have. Rather than ignore it, he addressed it as best he could. His candor was refreshing.
Which brings us back to the Virginia bank robbers. Defense counsel, unsurprisingly, demanded a mistrial. Upon hearing what had been said, the judge rounded up the jurors before they could leave the courthouse and brought them back upstairs. Sitting in the same seat where 15 minutes earlier she had rendered judgment against three others, Juror No. 12 now wept softly while explaining to the Court what she had meant by her words and actions, and the inherent conflict they presented with her pre-trial representations. It was a sad exchange to be sure, the explanations entirely unsatisfying. But the raw, exposed nerve taught me that even at our best, many of us struggle to leave the personal lens through which we view the world at the courthouse door. And I do not think we want anyone to. But we must always be mindful that these biases that lurk just below the surface, and we must deal with them frankly and honestly where we can.
Upcoming Posts in the Diversity in the Courtroom Series:
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: