Once upon a time, four great women were asked to participate on a panel about the effects of gender in the courtroom at the ABA White Collar Conference but instead of simply opining about the topic- they decided to conduct their own research and find real answers. These superhero women were:
- Moderator Patricia Brown Holmes, a Partner at Riley Safer Holmes & Cancila
- Ellen Brickman, Ph.D. Director, DOAR a litigation consulting firm
- Laura Colombell Marshall, Partner, Hunton & Williams LLP
- Joan McPhee, Partner Ropes & Gray LLP
The panel was titled Women in the Courtroom: A View from the Jury Box. I spoke to Joan McPhee last week about the study and the panel discussion, which I unfortunately missed. She told me that when they first started to explore the topic it was disappointing to discover there was very little if any data or research on the topic. This inspired them to conduct their own research to get to the bottom of many questions such as: How do jurors view male and female attorneys? How does a juror’s gender influence perception of attorney effectiveness? Does attorney gender have power to influence the ultimate outcome?
Thankfully they had Ellen Brickman on the panel from DOAR Litigation, a Ph.D. with extensive experience in conducting juror research. A study was developed using a pool of 880 mock jurors of equal gender from major metropolitan areas from around the country. These jurors were surveyed using two components. One was the IAT (Implicit Association Test) measuring implicit biases and the other was a survey that included an attorney opening statement case scenario. They had the jurors read the opening statement, which was identical except one version described the attorney as female and the other described the attorney as male. The jurors then were asked questions with reference to the gender of the attorney about their perceptions of the opening statement and its effectiveness across a range of attributes. You can read more details about the study in the PowerPoint presentation here. The most amazing finding from this study was that male jurors have an automatic preference for male lawyers, and female jurors have an automatic preference for female lawyers. Even more surprising, the women’s preferences were much stronger.
If conducting their own research wasn’t enough, these women also conducted an attorney survey of experiences relating to gender bias. They found that 72% of female colleagues surveyed reported negative experiences with colleagues because of their gender, 69% reported negative experiences with opposing counsel, and 43% reported negative experiences from judges. The take away is that gender bias is alive and well in our field.
When I spoke to Joan she shared with me how surprised she was by certain parts of the study’s findings. Having anticipated that gender stereotypes embedded in our culture might lead both male and female jurors to have automatic preferences for the male attorney, and to prefer the male opening statement as stronger and more effective, it was notable that male and female jurors each held a clear preference for the attorney of their own gender with the female jurors exhibiting a preference for the female attorney that was twice as strong as the male jurors’ preference for the male attorney.
Given that juries are gender diverse, Joan noted that, all other things being equal, these results suggest that a gender-diverse trial team should have an edge at trial in connecting with jurors and maximizing persuasiveness. She noted that the jurors’ preferences for the attorney of their own gender was reflected in the results of both the IAT, in the form of an “automatic preference,” and in the opening statement case scenario. Specifically, with regard to the latter, female jurors found the female attorney’s opening statement to be clearer and more logical and to reflect greater care for the client. The reverse was true for the male jurors. She noted that the recent ABA report on women as first chair found that, for women serving in lead counsel roles at trial, almost 70% appear for the government as prosecutors and only 30% for the defense. Joan questioned, in light of the research findings and the government’s apparent greater ability to field a strong, gender-diverse trial team, whether we are effectively “ceding an advantage to the Government.” This study suggests that the defendant has a clear disadvantage if the only female in the courtroom is at the Government’s counsel table. Ellen Brickman cautioned, based on her years of experience in working with mock juries, that jurors are sensitive to how women and minorities are treated as members of a team, and that just having a token female member at counsel table who is not playing an active role has the opposite effect and can backfire.
Joan also spoke to me about the “Audition Screen” that has been written about extensively, and which involved a symphony conducting blind auditions of musicians using screens and carpeted floors to mask any information about the gender of the performers. Orchestra directors traditionally had a strong preference for men, believing that men were better able to perform at the highest levels of the field, particularly with certain instruments that were viewed to require a level of physical strength and stamina. The judges were shocked that one of the best performers turned out be a petite woman. Audition screens thereafter came into more prevalent use and, when the judges’ implicit bias against female performers was walled off and removed from the selection process, the result was a dramatic increase in the number of women being chosen.
What does that tell us? Joan would say that our own implicit biases may interfere unconsciously with our ability to identify and promote the strongest talent, to the detriment not only of those passed over, but also to the overall performance of the team. In the context of a criminal trial, with our clients’ liberty on the line – if we are to field the strongest team and harness full persuasive power with a gender-diverse jury – we cannot ignore the potential role of gender in the courtroom. Joan challenged the audience and and all of us to ask, “What is going to be our trial lawyer’s equivalent of the Audition Screen?”