I had the privilege recently of being on the faculty of the 30th Annual National Institute on White Collar Crime in San Diego. I was on a panel, along with three prominent female attorneys, titled “Women in the Courtroom: A View from the Jury Box.” It was particularly exciting to be able to present the results of original research conducted by DOAR on how mock jurors perceive male and female attorneys.
Our mock juror survey involved two components: First, 880 survey respondents read a brief overview of a white collar crime case. They then read a 2-page defense opening; half were told it was presented by a male attorney and half by a female. The openings were identical in both conditions and overall, in post-presentation evaluations, were largely rated comparably no matter the gender of the attorney. There were, however, some small but statistically significant differences in evaluations based on the gender of both the mock juror and the defense attorney. On several scales, we saw jurors evaluate the attorney of their own gender more favorably. Notably , the highest ratings on these scales were for female jurors rating the female attorney, and the lowest were for male jurors rating the female attorney.
The second survey component involved a test of “implicit bias” – the automatic preferences that many of us have for particular categories of people, of which we may even be unaware. Tests of implicit bias, called Implicit Association Tests, measure automatic preferences by having respondents simultaneously sort images or terms associated with a category of people (e.g., male and female attorneys) along with positive and negative terms. The speed with which we sort male-positive words together versus female-positive words together, for example, reflects the strength of our automatic associations of each gender with positivity or negativity.
The results of our IAT tests were striking: Male mock jurors demonstrated a clear automatic preference (measured by a score called the D-score) for male attorneys, and female mock jurors demonstrated an even stronger preference for female attorneys.
These findings are especially noteworthy in light of a recent study revealing that women make up no more than a third of all attorneys appearing in both criminal and civil cases. When women do appear as lead counsel it is most often on a government prosecution team. Yet, particularly in larger venues where high-stakes litigation is concentrated, women are well-represented on juries. In criminal cases, defense teams may be ceding a large advantage to the prosecution, which is likely to be giving important roles to female attorneys who may be preferred by female jurors, while the defense is not. And in all cases, putting women in key positions in your trial team allows you to benefit not only from the talents these attorneys have to offer but also from the natural appeal they are likely to have to the women on your jury.
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We are eager to share with you more detail about the study findings, and our thoughts about their implications for trial strategy. Please contact Dr. Ellen Brickman: firstname.lastname@example.org or 212-235-2709, for further information.
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 S.A. Scharf & R.D. Liebenberg (2015). The participation of women lawyers as lead counsel and trial counsel in litigation. Report, ABA Commission On Women In Litigation.