The Legal Advocate

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A Trial Experience from One Juror’s Perspective

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NITA’s blog editor, Kathy Behler, was recently summoned to jury duty for United States District Court. She sat down with NITA’s Program Development and Resource Director Mark Caldwell in studio71 to discuss her experience, as it is a perspective we don’t often get to see.

Mediation Part One: Excerpts from NITA’s Webcast: How to Use Your Trial Skills to Prepare for Mediation

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Cost: $0.00 | Runtime: 1hr | Program Type: Advocacy Skills

Check out this excerpt from NITA’s Webcast: How to Use Your Trial Skills to Prepare for Mediation. You can view the full webcast on demand here.

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Gender in the Courtroom Part 1 – Is Lady Justice at a Disadvantage in the Courtroom?

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This post was written by guest blogger and NITA Program Director Bibianne Fell.

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:

  • The jurors surveyed generally believed there was no difference between men and women in the courtroom;
  • 97% felt that, in general, women were no less (or more) qualified than men;
  • The 3% that felt there was a difference believed female attorneys were more qualified than male attorneys; and
  • The jurors did not believe they would view an aggressive female attorney any differently than an aggressive male attorney.

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.

  • 54% of women attorneys in California surveyed by the State Bar of California Center for Access and Fairness in 2005 report having experienced gender bias in the courtroom.
  • 70.4% of women surveyed in 2004 by the Defense Research Institute had experienced some form of gender bias in the courtroom.
  • Nine out of ten women surveyed by the Texas State Bar in 2004 reported being the target of at least one incident of gender discrimination in the courtroom.
  • Women reported the following behavior from judges, jurors, or opposing counsel:
    • Being mistaken for a secretary or paralegal;
    • Being called a term of endearment (honey, sweetheart);
    • Being critiqued for their voice sounding shrill or too high (this perception was echoed by judges who commented that a woman raising her voice in court was a problem because she sounds shrill, whereas a man sounds aggressive);
    • A difference in how they were treated (ignored, bullied, treated in a condescending manner); and
    • Having clients express a preference for male lead trial counsel (although judges reported that they often found women litigators better prepared and more likely to follow courtroom rules).

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:

  • Act like a lady, not a man;
  • Use your femininity, not your sexuality;
  • Be better prepared;
  • Be more professional;
  • Produce a better product;
  • Act with confidence;
  • Be firm;
  • Do anything and everything to hone oral advocacy and trial skills, including through volunteer work and attending trial training courses.

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.

Best Advocacy Fix: Cross is About Jurors

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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.

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Diversity in the Courtroom Part 4 – An Interview with Judge Harrell Part 2

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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.

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 Goal is to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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