"Being a woman is a negative, all other things being equal, but all other things are never equal."
That’s me talking, and I can explain. I was quoted last month in an article by Nora Tooher in Lawyers USA about challenges women lawyers face in the courtroom. (The article was inspired by Elizabeth Parks-Stamm’s article in the November issue of The Jury Expert about how female jurors respond to successful women; Nora found me because I wrote a short comment to Ms. Parks-Stamm’s article for TJE.)
It’s a negative
It’s hard for women lawyers to hear, but it’s true. There are exceptions, but when social science researchers isolate lawyer gender in mock jury experiments, some have found that male lawyers do better. The main two studies I’m aware of are:
- Hahn, Peter W. and Susan D. Clayton, 1996, “The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decision,” in Law and Human Behavior. College student subjects read a written case summary and then saw a videotape of the purported defense lawyer examining a witness. The defense lawyer they saw was passive or aggressive and male or female, four permutations in all. Aggressive lawyers did better, and male lawyers did better.
- McGuire, Mary V., & Bermant, Gordon, 1977, “Individual and Group Decisions in Response to a Mock Trial: A Methodological Note,” Journal of Applied Social Psychology. When the defense attorney in a mock murder trial was a woman, jurors were less likely to vote not guilty.
(I’ve seen one other article cited for the proposition that women struggle in the courtroom, but I don’t have either a copy or the abstract. It’s Hodgson and Pryor, 1984, “Sex Discrimination in the Courtroom: Attorney’s Gender and Credibility,” in Psychological Reports.)
It’s a positive, sometimes
At least two other studies suggest a different gender effect in the courtroom: an advantage, in rape cases. Obviously in these cases the defendant is almost always male, the victim almost always female, and the crime itself sexual. Gender is practically bouncing off the walls, and the way it all works together is being studied from several directions right now. The two attorney gender studies are:
- Villemur, Nora K. and Janet Shibley Hyde. 1983. “Effects of Sex of Defense Attorney, Sex of Juror, and Age and Attractiveness of Victim on Mock Juror Decision Making in a Rape Case,” in the journal Sex Roles. Mock jurors heard audiotape of a rape trial. Here the women defense lawyers did better to the men; 71% of them got acquittals, while only 49% of the male defense lawyers did.
- Plourd, Brian J., masters' thesis study, 2007, The Effects of Alcohol and Attorney Gender on Perceptions of Sexual Assault Cases, Central Connecticut State University. When mock jurors heard that alcohol was involved in a sexual assault, they were more likely to find the defendant guilty – unless the defense lawyer was female. “[S]ignificantly fewer respondents perceived the defendant as guilty in the alcohol scenario when the defense attorney was female as opposed to male.”
It’s neutral, or might be
Three studies I know of did not find an effect of attorney gender. In each case, however, the study was testing something else as well as gender, and I’m left wondering what would have been different if they had tested gender alone:
- Cohen, David L. and John L. Peterson, 1981, “Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts,” in Social Behavior and Personality. In a study varying the lawyer’s race and sex, white lawyers did better, but gender had no effect.
- Barge, J. K., Schlueter, D. W., & Pritchard, A. P., 1989, “The effects of nonverbal communication and gender on impression formation in opening statements,” in Southern Speech Communication Journal. I only have the abstract on this one, which says the conclusion is that “attorney gender may not influence the impression formation process in the courtroom.”
- Janet Sigal et al. 1985, “The Effect of Presentation Style and Sex of Lawyer on Jury Decision-Making Behavior,” in Psychology: A Quarterly Journal of Human Behavior. This study varied both gender and style -- aggressive, assertive, or passive. Assertive and aggressive worked better, for both men and women.
Many, many disclaimers are in order here. A few of them are:
- Many of these studies are quite old. A lot has changed in gender roles and perceptions since the 1970s and '80s, although I'm not sure we've evolved in a straight line toward equality.
- The subjects in these studies are almost always college students, because they’re handy for the researchers. Your thoughts about gender have changed as you’ve gotten older, right? Theirs will too, and these studies don’t say how.
- There is no such thing as a definitive mock trial experiment. To reach any scientific conclusion, you must isolate the factor you’re looking at; but real trials never isolate any factor.
- Same point, but from the lawyer’s point of view: Don’t give up – or, if you’re a man, get confident – over the studies where men did better. All things are never equal. I kind of like the way I said it later in the Lawyers USA article, so I’ll just quote myself: You can gather better evidence, present it more clearly, pay more attention to jurors and understand your particular jury and what might appeal to them better.
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If you know of other studies that should go on this list, please do let me know.
Related posts here:
- When Women Judge Women (on a different article by Elizabeth Parks-Stamm)
- Women Lawyers, Juries – And Stress?
- Asking For Forgiveness
- Beauty And The Juror, Parts I and II
(Photo by at http://flickr.com/photos/binaph/571756665/; license details there.)
