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.
We are happy to bring you Part 2 in the interview series with Judge Alfred Harrell. If you missed Part 1 you can view it here: An Interview with Judge Harrell Part 1.
For February’s interview portion of our series on Diversity in the Courtroom, we had the privileged of welcoming Honorable Judge Alfred Harrell into studio71. Judge Harrell has been a cornerstone of the legal community in the Denver metropolitan area for the last 40 years. He is a sitting judge for the Denver County Court, and has held this appointment since 1985. Judge Harrell also comes from a family rich in Colorado legal history.
To read more of the posts on the Diversity in the Courtroom series see:
We invite you to comment below with any thoughts or experiences you have regarding Diversity in the Courtroom.
I admit it. I was hoping I would draw you in with the title of this post. I toyed with how I could tie the popular book, Fifty Shades of Grey, into an article on advocacy. The more I considered it the more I recognized there probably was nothing I could truly connect. Then I realized the connection was the error that many lawyers make when stretching to put a theme to their case.
So much of the current literature on trials talks about telling a story. The literature is right. Trials should tell your client’s story, explain the wrong that was done, and suggest how to make things right. That is not always easy.
Cases where there is real human suffering offer vehicles that pull on sympathies and offer obvious means to ease the pain. But not every case provides facts that make for these well-crafted case stories. Putting the sizzle into a dispute between two large corporations that will keep the attention of a jury may take creativity. Turning thousands of exhibits into must-read story details can challenge anyone faced with these types of cases.
This post will not attempt to teach you how to create an engaging case story. There are books that do a far better job in far more space than we can devote in this short piece. For those who have not studied any of these texts, I recommend you review one or two of your own selected choices.
What I do hope to impart is the avoidance of shortcuts that employ another’s story, parable, or allegory. Why? Why shouldn’t someone take a popular story and adapt it to their client’s case? Perhaps the most simplistic answer is because every case is unique and your client’s story deserves to stand on its own. More importantly, the facts of your case do tell a story and should show how your client has been injured. Even if the client is a huge corporation there are individuals involved who can humanize the events and turn paper damages into real injury. By sharing actual facts in a story the jury can relate to common experiences. An actual story humanizes your client and builds your credibility.
Perhaps the most important reason to not rely upon the ideas of others is that your opponent is most likely as clever as you. The story you bend to fit your case can also be turned on you. There is almost nothing worse than having your words turned back on yourself. Telling the true story of what happened to your client is the most direct way of preventing words being turned around.
When it comes to trials – tell your own story.
We invite you to comment below with your thoughts on this post.
Please comment below and let us know how you’ve used vivid word pictures in your practice.