Gender bias is often outside of conscious awareness and is implicit, meaning that it can occur in stark contrast to one’s consciously held explicit beliefs. Banaji & Greenwald (2002) posited that such social behavior is not completely under our conscious control but, rather, is driven by learned stereotypes that operate automatically or unconsciously when we interact with others. Recent research has reiterated that implicit bias (also called hidden bias) is real and has real-world consequences; it raises issues of fairness in trials that are supposed to be a search for the truth regardless of, among other things, the gender of the presenting attorneys. Although most jurors are more complex in their thinking about a case, and their verdicts will ultimately rest on the strength of the evidence, research has shown that many jurors do employ some gender stereotypes in their overall assessments of attorney performance. These stereotypes don’t always follow what you might expect.
Jurors’ Opinions of Female Attorneys: Key Research Findings
Myth #1: Women don’t like women. There are some common myths that are frequently reiterated when it comes to gender bias and jurors. As an example, we have heard attorneys say, “I don’t want women on my panel because women do not like other women; therefore, women jurors do not like women lawyers.” The research has shown, however, that women tend to like women more than men like men (Rudman & Goodwin, 2004). This psychological phenomenon, called in-group bias, refers to a preference or favoritism toward one’s own “group” and is defined by the perception of others in relation to oneself. The more a juror views herself (or even himself) as similar to the female attorney, the more positively the juror will perceive the attorney. In the same vein, psychologists have discussed the similarity-leniency bias, which is the tendency for people to prefer others who they believe are similar to themselves. Thus, female jurors may especially favor a woman advocate over a man when they perceive that the female attorney has similar attitudes, beliefs and values to their own.
Myth #2: Women don’t sound confident. Another impression is that women attorneys will be perceived as “softer” and more “feeling,” whereas a male attorney is more able to convey a “harder” and more “confident” message – and there may be some truth to this one. Men more frequently create impressions of confidence by using powerful language, while women, because of socialization, have a tendency to use powerless speech. Powerless speech involves using hedges (e.g., “kind of,” “I guess,” etc.) or qualifiers (words that increase or reduce the absolute quality of a statement: e.g., “very,” “most,” “least,” “sort of,” etc.). Though men and women generally utilize these two different and distinct types of speech, it is not always the case. Thus, it is important to note that, regardless of the presenter’s gender, the powerless style of communication produces less favorable reactions from male and female listeners alike, while powerful speech cultivates credibility in any presenter.
Myth #3: Type of case doesn’t matter. Research supports that women advocates tend to be viewed as more ethical than their male counterparts (in fact, female attorneys are disciplined at a far lower rate than males) (Hatamyar & Simmons 2004), yet male attorneys are generally rated as more competent. However, this finding is specific to certain genres of litigation. For instance, women attorneys have been found to be perceived as more competent in cases that involve family or health issues, while male attorneys are perceived as more competent in complex, technical cases. That is not to suggest that a female attorney should avoid presenting a patent case or that a male shouldn’t defend a medical malpractice case involving women’s issues, but it is to say that the trial team should consider the expectations of its particular jury panel, which is a primary benefit of conducting jury research.
Don’t fall prey to following gender stereotypes when selecting trial counsel. Women, please don’t also fall prey to reinforcing those stereotypes. Research has shown those stereotypes don’t hold up if not reinforced. Thus, a presenter who uses a speaking style that communicates confidence and who is a good storyteller will be the one that connects with the jury – regardless of gender.
By: Jessica Baer, M.A. – Consultant
Nosek, B.A., Banaji, M.R., & Greenwald, A.G. (2002). Math = male, me = female, Therefore Math = Me. Journal of Personality and Social Psychology, 83(1), 44-59.
Rudman, L.A., Goodwin, S. A. (2004). Gender Differences in Automatic In-Group Bias: Why Do Women Like Women More Than Men Like Men? Journal of Personality and Social Psychology, 87(4), 494-509
Hatamyar, P. W. & Simmons, K. M. (2004). Are women more ethical lawyers? An empirical study. (Oklahoma). Florida State University Law Review