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.