Gender in the Courtroom: Myth vs. Reality

This article is co-authored by Alison Wong and Blaine McElroy. Alison Wong is a Senior Consultant in DecisionQuest’s Houston office. She has a background in both psychology and sociology, and received her JD from the University of Texas School of Law. Ms. Wong has considerable experience in research activities and her clients rely on her for strategic recommendations and storyline development. Blaine McElroy is a Research Associate, also in DecisionQuest’s Houston office. Mr. McElroy focuses on jurors’ decision pathways; the individual and group dynamics that present tactical actions or arguments used to manipulate or influence others.

In order to zealously represent their clients, trial teams increasingly find themselves questioning every detail of their strategy. No detail is too small to go unnoticed, not even the gender of the advocates. The most common concerns voiced by trial teams are that jurors will view assertive female attorneys as too aggressive, shrill, or overbearing. Paradoxically, others worry that female attorneys who express their femininity will be viewed as weak or ineffectual. These competing concerns from attorneys and clients place a great deal of pressure on female advocates to walk a very thin line – be tough, but not too tough; be feminine, but don’t be a doormat – but what do jurors really think?

Over the course of the last year, we surveyed several hundred jurors in venues across the country on the topic of women in the courtroom; this article offers a glimpse of what we found.

The differences between male and female attorneys

To begin with, 61% of those surveyed felt that perceptions of female attorneys have generally gotten better over time. We asked jurors to describe in their own words the differences between male and female attorneys, and what we found was that the vast majority of respondents felt there was no difference between the sexes. One person, whose views were representative of a large contingent of respondents, wrote, “I believe female attorneys are just as qualified, effectual, and successful in the courtroom as their male counterparts.” Another respondent simply wrote “EQUAL,” and yet another wrote “Gender makes NO difference! Only facts matter!” In fact, 97% of jurors felt that, in general, female attorneys are no more or less qualified than male attorneys. Notably, the 3% who felt that male and female attorneys are not equal actually believed that female attorneys are more qualified than male attorneys.

Interestingly, even as our respondents overwhelmingly professed their personal belief that there is no difference between male and female attorneys, many still had doubts about how their fellow prospective jurors would react to female advocates. One respondent felt that female attorneys are “equally competent, but possibly less respected by the average person in society.” Another wrote, “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.” These days, everyone is in the trial strategy business!

Assertive vs. Aggressive

It seems that prospective jurors and attorneys alike believe that old stereotypes die hard; fortunately, however, the data we collected indicate that female advocates have little left to fear. When we asked specifically about the stereotypes that caused the greatest concern, 82% of respondents disagreed that female attorneys are “shrill and overbearing.” With respect to the old adage that male attorneys are viewed as “assertive,” while female attorneys are viewed as “aggressive,” 95% of respondents believed that male attorneys are aggressive, while 91% felt that female attorneys are aggressive – an insignificant difference. In their written responses on this topic, there was no consensus among respondents as to which sex was the more aggressive advocate. More importantly, the presumption that aggressive female advocates are viewed negatively by prospective jurors did not ring true. Many of the respondents who felt that women are more aggressive were careful to note their belief that aggression is a positive trait in an advocate. Conversely, those who felt that women were less aggressive tended to view traditionally feminine traits as being advantageous. For example, one respondent wrote, “Female attorneys are better because they can typically invoke more emotion than male attorneys.”

What about the respondents themselves? Do men have different views on this issue than women? Is there a race effect? Age? Income? Education? Our research revealed no statistically significant   differences of opinion associated with any of these demographic factors.

So what did we learn?

In the vast majority of cases, the gender of the advocates simply does not matter to jurors. When it comes to trial attorneys, jurors respond to authenticity, organization, and sincerity. Gender is nowhere near the top of the list of desired traits. As it turned out, the biggest misconception related to gender was not the one held by prospective jurors, but the one we as attorneys had about jurors.

Alison Wong may be reached at awong@decisionquest.com, and Blaine McElroy may be reached at bmcelroy@decisionquest.com. With more than 100 professionals from 10 offices across the country, DecisionQuest is the Nation’s leading trial consulting firm. For more than 30 years, DecisionQuest has been retained in litigation spanning a wide range of industries–more than 18,000 cases and counting.

About our Partnership with DecisionQuest:

Last year, Litigator Technology launched a partnership with DecisionQuest to establish a Web Jury Consulting Program geared to make the nation’s leading jury consultants easily accessible to all trial lawyers. Learn more here.

© DecisionQuest, 2012, reprinted with permission

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