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TORT TRIAL AND INSURANCE PRACTICE: Trial Teams: Considering Diversity and Context

Expectations about race and gender affect our daily perceptions and do not magically disappear when entering a courtroom. In litigation, should race and gender be taken into account in choosing trial counsel and in making the many choices about who should handle the various tasks at trial? Are there advantages or disadvantages that arise out of the choices we make, depending on the demographics of the jury pool, the characteristics of the witnesses and the parties, and the nature of the case?

How jurors make decisions and express bias. We know that jurors’ first impressions, gut reactions, and prejudices are integral to their decision-making process. In addition, we know that judges have racial and gender identities and attitudes, prejudices, and biases that affect the way they make decisions during a trial. We must understand the ways that gender and race are perceived by all the players in the courtroom, and we must use that understanding to make better trial team decisions.

Why consider diversity? As advocates, we attempt to influence as many aspects of a trial as possible. When it comes to choosing the lawyers on the trial team, we can consider a variety of factors: the lawyers’ experience and reputation, substantive expertise, track record, and relationships with the court and opposing counsel. Other attributes are race, gender, and ethnicity.

Many corporate clients are very direct in stating their expectations that the lawyers who work on their matters include the talents of men and women and attorneys of color. Why? In addition to the goal of providing opportunities to lawyers who historically have had a more difficult time gaining access to them, there is an increasing recognition that the best decisions are made when there is diversity among the decision makers and their points of view. There also is evidence that diverse juries engage in different and better group decision making.

Diversity should be considered in context. Analyzing how diversity should affect trial team decisions must be made in the context of a number of variables. Does the case specifically involve issues of gender, race, or ethnicity? Further, what are the demographics of the jury pool? Is it a diverse pool or a pool that is made up of a dominant minority group? Is it an urban, suburban, or rural area?

Considering attorney characteristics. As jurors listen to the attorneys, they assess not only the legal competence and organizational skills of those lawyers, but also characteristics such as similarity, emotionality, aggressiveness, likeability, and attractiveness. In doing so, they may be reacting, at least in part, to preconceived notions of appropriate behavior for males and females and for people of different races or ethnic backgrounds.

Race/gender in general. A 2010 study suggested that race is a consideration when looking at the trial team. However, a barrier to assessing how race or gender affects perceptions of attorneys is the resistance by participants or actual jurors to disclose any personal prejudices or biases to researchers or those doing post-trial interviews. Importantly, some mock jury research has uncovered inconsistent evidence of attorney race- and gender-related disadvantages, but “[t]he evidence supporting these effects is limited and arguably, outdated” (tinyurl.com/ztpm3bf).

Similarity/identification. Similarity is an important factor in perceived attractiveness. People naturally want to identify with attractive people, and in doing so tend to agree more with what they have to say. The ability of a juror to identify with the attorney is a key to that attorney’s ability to persuade. Minority attorneys do overcome biases, but jurors, at times, favor attorneys and witnesses of their own race.

Emotion. Gender plays a role in jurors’ perceptions of what is an appropriate or inappropriate display of emotion. Women attorneys and witnesses are more often criticized for their emotional expressions, whereas male attorneys who show emotion of the same kind and level as females might be considered “deeply passionate” about the case.

Aggressiveness. Jurors are well attuned to an attorney’s degree of aggressiveness; they evaluate presenters along a continuum of passive to aggressive based on jurors’ perceptions of both verbal and nonverbal language displays. Traits of aggressiveness traditionally are attributed to men. However, as jurors have become accustomed to women in the courtroom, they tend to have expectations of women that are more similar to those of men.

Warmth/likeability. Jurors typically perceive attorneys as warm and caring or cold and intimidating. It is our belief that warm and caring attorneys, particularly if female, are more likely to win over jurors and persuade them that their case has merit.

Attractiveness. Physical attractiveness is something that jurors notice about both women and men. It can, however, be a double-edged sword, particularly for a female attorney. There is a risk that jurors may devalue the expertise of a female attorney seen as too attractive. Physical appearance may be more central to evaluating women and minority attorneys than white male lawyers, owing to cultural stereotypes about demeanor, tone of voice, and, for women, physical size.

Special trial considerations. A number of considerations fall outside the traditional attorney characteristics but play an important role in considering diversity of a trial team.

Tokenism. It is critical to understand the role of “tokenism” in a trial setting. Jurors view women or minority attorneys who sit at counsel table without a substantial role as “tokens.” The risk is much greater in cases where race or gender is a central issue.

Contrast effect. Researchers have found that observers’ expectations for a woman performing a stereotypically male task are lower than for a male performing the same task. Rather than making cross-gender comparisons, observers compare the individual woman to their standards for other women, and because this task is a stereotypically male task, the standards against which the observers judge her are “shifted.”

Thus, stereotypes actually act to increase the probability that those who are not stereotypically oriented to those tasks will exceed those expectations. What is happening is something called the “contrast effect.” When jurors have low expectations of a female attorney and this attorney impresses the panel by mastering the information, she may actually receive more positive evaluations than a male who is presumed to be technically competent.

Cases in which race or gender are center stage. When race or gender is at issue in the case, choices for trial counsel are put in sharp relief. Consider a Title VII case where your corporate client is accused of racial discrimination. Should an attorney of color be chosen as lead trial counsel? What message will be sent? The choice of a person of color might be a very powerful one, as jurors may believe the lawyer of color would not defend the company unless he or she believed in the rightness of the company’s conduct. However, if the company has an attorney of color sitting at counsel table but not actively participating in the trial, the jury may draw the dangerous conclusion that the lawyer is merely a token. Such a message may well lead the jury to be more likely to conclude that the company is insincere at a minimum.

The demographics of the jury pool and presiding judge are also part of the equation. The potential advantage of having attorneys with whom jurors can identify is most striking in the context of voir dire. Jurors are often more comfortable opening up to others with whom they can identify, and this may be a powerful factor in their willingness to share personal information. Having an attorney of color address a panel in which there are a lot of individuals of color may engender openness and disclosure.

ABA TORT TRIAL AND INSURANCE PRACTICE SECTION

This article is an abridged and edited version of one that originally appeared on page 18 of The Brief, Summer 2015 (44:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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