As anyone who has been involved in litigation for any length of time knows, men still typically outnumber women in the courtroom, although the gap is closing. As researchers continue to explore gender differences in the courtroom, female lawyers, litigants, and experts deal every day with the issues gender differences create. Stories abound regarding implicit and explicit gender bias in the law. In this article, we review some of the recent research looking at the impact of gender bias—if any—on experts and case outcomes, and offer some stories and suggestions from our own and our colleagues’ experiences for how to mitigate any negative impact of gender bias in litigation.
The impact of expert gender on credibility and case outcome is a complex matter that is frequently case-specific. Recent psychological and empirical literature examining whether the gender of an expert witness has an effect suggests that while there might be a slight overall advantage for male experts with regard to perceived credibility and persuasiveness to jurors, this advantage is not present in all situations. The key is congruence of expectations. If the subject matter is in a field that is perceived as male, then a male expert may have an advantage over a female. If the field is perceived as female, however, then neither expert may have an advantage or the female may have the advantage. In addition, “likeability”—the extent to which an expert is perceived by the fact finder as relatable—appears to be especially important for women experts as compared to men, in addition to the usual criteria such as experience, education, and other qualifications. That said, although there may be some differences in how women and men are perceived, these differences appear to be small, depend on the circumstances of the case and the particular qualifications and qualities of the expert, and may be affected further by other factors such as the composition of the jury. For these reasons, in many circumstances it is hard to single out any one factor or set of factors as influencing the fact finder’s perception of the expert, let alone the outcome of a particular case.
Notwithstanding the ambiguity in the literature, in everyday life our own experiences tell us that gender can and does matter and can impact—if not the outcome of a case (indeed, there are so many factors at work, it is likely hard to pinpoint the exact cause of any particular result)—the experience of the litigation for the lawyers, experts, and litigants. On any given day, gender issues can and do arise, and women lawyers and experts need to be prepared to handle such situations. While many approaches have met success, we offer a few thoughts and suggestions based on experiences we and others have encountered, and lessons we have learned over decades in litigation. Because earlier stages in a case can impact what happens in the courtroom, we will first discuss the implications of gender in the selection of an expert, in the discovery/pretrial phase, and then, ultimately, at trial.
In our experience and based on the literature we have reviewed, an expert’s gender can be a consideration in at least two ways during the selection process. First, certain subject matter may lead one to think about the gender of the expert and how it may affect the expert’s credibility (or not) with the fact finder. If the products at issue in an intellectual property (IP) or products liability case are baby products, for example, might one play into gender stereotypes and think about whether a female expert might be perceived as a more credible authority on the subject than a male expert? But will this be perceived as pandering to the fact finder and backfire? On the other hand, if the subject matter is in an area typically associated with men—e.g., military equipment—would a male expert be seen as more persuasive? The research shows no clear answer to these questions, and much can depend on the demographics of the fact finders themselves as well as the identity of the expert. Thus, while this is definitely a thought process that we have seen pursued in expert selection, the research would suggest that it is risky to put a lot of emphasis on gender as a selection criterion.
A second consideration sometimes taken into account is the composition of the trial team, as well as the gender of others likely to be in the courtroom, such as the judge. If you have an all-male trial team (still not unusual), and especially if all or most of the fact witnesses are male, selecting a female expert may help balance the presentation for your side of the case. Indeed, we know of experts who have been given their first opportunities as testifying experts for this reason, and if there is no other way to diversify the trial team, this seems like a minimum step to consider. Of course, studies showing the value of diversity in business generally also support the inherent benefits of having a diverse trial team not simply for appearances, but also for the quality of the case analysis and presentation.
Assuming that a female expert is selected, we have seen several ways that gender can directly or indirectly become an issue in the discovery and pretrial process. One thing that we have grappled with in our careers is pregnancy during cases. We do not mean to suggest that pregnancy or its potential should, in any way, be a factor in whether or not an expert or attorney is selected or retained. Rather, the simple fact is that courts still are not always accommodating to scheduling issues arising due to pregnancy or maternity leave, and we have each experienced that availability and travel issues sometimes resulting from pregnancy and/or maternity leave can be used by the other side to disadvantage our teams and clients during the pretrial and trial process. Thus, at different points, we have each elected not to share the fact of our pregnancies with opposing counsel and have worked to arrange case schedules in an attempt to prevent issues from arising. Now that paternity leaves are more commonly available and used, similar issues can arise for men, but restrictions on travel and the ability to work (for example, during disability leave) are less likely to be a barrier for the parent (male or female) not bearing the child.
Another issue we have seen repeatedly during discovery, particularly during depositions, is inappropriate behavior by male attorneys when interacting with female experts and by male witnesses (fact and expert) when interacting with female attorneys. In our experience, these kinds of behaviors are less common in the courtroom (although not unheard of, more on that later), where others are there to see and, in the case of judges, control the process. For instance, we are aware of female experts being asked questions in depositions in a way that would not have been asked of a male expert—e.g., “did you read about that [the technical subject of the testimony] in a fashion magazine?” (true story!). We have also seen male witnesses either: (1) ignore their counsel’s objections and answer objectionable questions because “they understood the question” even if counsel did not (the question was truly unintelligible, and the clear implication of the witness’s response was that the witness was smarter than the lawyer); and/or (2) direct their answers on technical matters to the junior male team member, implying that the female senior attorney would not understand the responses.
No matter your level of outrage at the fact that these situations still happen in 2017, the real question is, how do you handle them? In the case where you are the female expert being subject to inappropriate questions, it is probably best to stick to your substantive testimony and allow your counsel to take the lead in responding to gender bias. As counsel with a female expert being subjected to such behavior, you have several options. First, you can and likely should object on the record. Second, you can take a break and take opposing counsel outside for a little chat with the reminder that the judge can always be called if the behavior continues. Third, you can actually call the judge if the behavior continues. On the other hand, sometimes it is best to let it slide, especially if the expert’s testimony is not suffering and the questioner is looking foolish by his own doing. In short, there is no right answer, and often a judgment call must be made in an instant.
The same is true if you are the female counsel with a recalcitrant male witness. If your witness is going off the rails, take a break from the testimony to remind the witness of the roles of each person in the deposition and the need to heed the implicit advice of objecting counsel. However, if the male witness is on the other side, much like with the male questioner and female expert, judgment must be used. Sometimes the male witness’s own biases can be used against him and helpful testimony can be obtained because the witness is underestimating the female questioner’s skill and ability. Other times, like with a bully on a playground, it may be necessary to stand up to the witness, call him out on his behavior, and visibly take full charge of the situation. (Could these examples have just as easily occurred in situations where the questioner and witness were the same gender? Were other factors, such as personality, age, experience, education, etc., more at issue? Quite possibly. There is really no way to know which filter was at work, as the research demonstrates.)
At trial, expert credibility becomes the most pressing issue, whether the expert is male or female. Demeanor and dress, for example, are relevant for anyone in the courtroom, regardless of gender. In mock jury research, we have seen a male attorney’s suit be a subject of jurors’ discussion in terms of whether he really seemed professional and competent (again, true story!). We also know of a female expert who made a point of wearing a bright color suit or dress in the courtroom to distinguish herself from the attorneys (female and male) with the goal of bolstering her credibility. Do these things matter or affect the outcome of case? We may never know, but they are certainly worth considering.
In preparing to write this article, we reached out for stories from colleagues. One interesting trial story shared by a female expert involved a male attorney questioning the expert in an antitrust/IP case for 30 minutes about a minor typo in her report (involving a date) that had been corrected prior to trial. At the end of the cross-exam, the counsel for the expert’s side said that it looked like the male attorney was “beating up on a woman” and did not seem to be well received by the jury. Ultimately, the expert’s side received a very favorable ruling. Did the jury really think that the attorney was “beating up on a woman” during the cross-exam? Would the jury have still seen the cross-exam as inappropriate even if the expert had been male? Did that portion of the cross-exam contribute in any way to the favorable outcome? Again, too many variables are at play to measure the impact of that lawyer’s behavior toward the female expert witness in a scientific way. However, chances are you would not want to be that cross-examining attorney after the verdict was rendered. And there was another attorney’s trial judgment at issue here—it appears that the attorney whose expert was on the stand did not intervene during the 30 minutes of questioning on the typo. That was also a judgment call and it appears to have been the right one.
We have also seen examples where male witnesses—including experts—have overstepped in court with female judges. In one example, during the middle of a trial, a very experienced and renowned male expert tried to bond with the female judge by making reference to them both being “of a certain age” (both were probably at least in their 60s at the time). To say that comment was not well received by the judge is an understatement, and, ultimately, the theory the witness espoused was not accepted by the jury. Was that part of the reason why? There certainly could have been other reasons that the testimony may not have been accepted. Would the male expert have made the same comment if the judge were male? Hard to say. In another example, a male witness complimented the judge on her suit—a comment that was similarly not well received. If your expert misbehaves on the stand, there really is not much you can do in open court, especially if you had no inkling of such behavior ahead of time. But certainly if your witness has demonstrated propensity for such behavior outside of the courtroom, you need to at least discuss the matter with the expert in an effort to prevent future instances of offensive conduct.
Ultimately, though, be wary of stereotypes. Another example we received was where a young female employee was on the stand testifying on behalf of a technology company as the company representative on sales and marketing issues. The witness, we were told, was very professional but smiled a lot and her “bubbly” personality showed through her testimony. The person reporting the story (a woman) was concerned with how the jury might receive the testimony, which was critical to damages, given the witness’s demeanor. A shadow jury, however, strongly felt that she was a credible and competent witness, and, ultimately, the technology company won that part of the case. Interestingly, the jury demographics were evenly split male and female, although most jurors were older than the company witness. Thus, as corroborated by the research on gender in the courtroom, it is ultimately very hard to predict the impact of gender and bias on case results. That said, with a full understanding of the limitations on the predictive value of gender stereotypes and gender biases, considering gender is an important part of adequately preparing for and executing a litigation strategy.
Nicole D. Galli is an attorney at the Law Offices of N.D. Galli LLC in Philadelphia, Pennsylvania. Marta L. Villarraga, PhD, is a principal at Exponent in Philadelphia, Pennsylvania.
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