Gender bias in the legal industry

by Jacqui Brauman

Gender bias in the legal industry

by Jacqui Brauman

by Jacqui Brauman

*Sigh* (Another blog by a woman complaining about gender bias.)

Yes! Of course! Well, nothing much has changed since the first studies into this bias in the 1970s and 1980s. 

Except that we know more about it! And we know that if female lawyers, and female expert witnesses face bias, then how is a normal woman going to navigate resolving an issue without facing bias?

Karen Engstrom, another blogger, wrote a great article that I’m going to repeat a lot of it for you, because there has also been some interesting research that female lawyers actually do better than men!:

What female lawyers who are trying to help you are up against

In addition to lower pay and opportunities for advancement, female lawyers (and particularly those who are also minorities) are more likely than their male counterparts:

  • To be interrupted;
  • To be mistaken for non-lawyers, including custodial staff, administrative staff or court personnel, even after making partner at their firms;
  • To do more office housework, such as meeting scheduling and party planning, and even cleaning up food after a meeting; and
  • To have less access to prime assignments.

I too have been mistaken for administrative staff and I recall my frustration. When my male partner inadvertently drove to the wrong location for a meeting that he had scheduled at our office, his guest arrived and was quite insistent that I must have botched the calendar entry for my partner. It offered me minor solace that he felt quite embarrassed when I informed him that I was not my partner’s administrative assistant.

Gender bias seems even more unfair in the courtroom itself where double standards abound. A 2018 study conducted by Arizona State University dissected perceptions of six trial lawyers, three male and three female, as they reenacted an aggressive closing argument from a real court case. Participants in the study described the male lawyers as “commanding, powerful, competent, and hirable” while the females were found to be “shrill, hysterical, grating, and ineffective.” Unfortunately, since the courtroom is a venue where results are inherently driven by a judge and jury’s perceptions, female lawyers are often left to face the reality of such perceptions and adapt accordingly.

What a female expert witness is up against

The necessity to adapt to biased perceptions is not limited to lawyers, but extends to expert witnesses as well. An astounding 83% of expert witnesses retained are male. Bloomberg BNA reported in August 2017:

  • Gender bias in the legal profession isn’t new. Its pernicious reach spreads everywhere.
  • But nowhere is it more pronounced than among the ranks of female expert witnesses who must surmount multiple layers of ingrained stereotypes every day to do their jobs.
  • Women must scale heights in their chosen field to qualify as a trial expert. They then need to persuade mostly male attorneys they should be hired and retained.
  • And to survive, they must consistently convince skeptical jurors that they are more knowledgeable, credible, confident and even likeable, than their opposing, usually male, counterparts.

Certainly, all expert witnesses should be expected to be knowledgeable, credible and confident, but let’s talk about likability. Tess Neal, Assistant Professor of Psychology at Arizona State University, explains that in order to persuade jurors, female experts must not only uphold their occupational role as “competent and knowledgeable,” but also uphold their gender role as “warm and likeable.” According to Neal, male experts face only the former, without likeability as a requirement.

Despite all this you’re better off to have a female lawyer

Premonition co-founder and CEO Guy Kurlandski summarizes the study’s results, “If female attorneys were compensated according to how often they actually win cases, they’d be paid more than men.  We just ran the biggest legal study on gender of all time, and at every level of practice, women came out ahead.”

Armed with the findings from Sky Analytics gender study, Premonition set out to unpack “the truth behind the myth” with respect to the performance of female and male litigators. Premonition utilized its vast archive of courtroom data and proprietary artificial intelligence to study the win rates of litigators across 120,000 cases, finding:[9]

  • Female partners in Big Law outperformed male counterparts in court by nearly 13%; and
  • Female associates outperformed male counterparts by nearly 3%,

Premonition offers several possible explanations for the win gap, largely attributing it to “survival of the fittest” with only the best and most elite female lawyers surviving to outperform a wider pool of males, but also citing a study which found that “female lawyers are somewhat less overconfident in their predictions of case outcomes than males, meaning they are less likely to bring losing cases to court while preparing more diligently for the cases they do litigate.”

Where does all of this leave us? Never has there been a time more ripe for upending courtroom bias than now. Diversity and inclusion initiatives are abundant across law firms and corporations, and data such as that published by Premonition is bound to continue to demonstrate the merits of female lawyers and expert witnesses alike. It is time to put the anecdotes, discouraging realities, and biased perceptions into the past, and instead move toward a future that acknowledges the advantages that females can provide across all areas of the courtroom. Early in my career I was told that perceptions become reality. But times are changing, and I believe the reality of women’s contributions in the courtroom has the power to become the new perception.

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