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January 31, 2019 Feature

Melding a Diverse Trial Team: Considerations, Context, and Challenges

By Ann T. Greeley and Karen Hirschman Larsen

Most of us who watched the women’s movement in the 1960s hoped that there would no longer be a gender gap in the legal profession in the year 2019. We also hoped that diverse attorneys would be represented in firms in numbers equal to the population, at a minimum.

While change has happened, it has not happened enough or fast enough. For example, women make up half of the law school graduates, but women are still underrepresented in law firm equity partnerships and leadership positions. Minorities (including Asians, Hispanics, and African Americans) are an increasing percentage of lawyers at law firms (16 percent), but their numbers still lag at the partnership level (9 percent), according to the Minority Corporate Counsel Association.1

Admittedly, there has been progress, but do women and diverse lawyers have a voice not only in their firms but also in other places where it matters, for example, the courtroom? And if, in fact, women and minorities have more representation in courtrooms, do they have a role that bespeaks their expertise and knowledge? In a New York Times op-ed, Judge Shira Scheindlin said that in her long career, the “talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent.”2 She worked on the New York Bar Association’s observational study of women speaking in court, which found that women were the lead lawyers for private parties in federal and state courts at the trial and appellate levels only 20 percent of the time. “The results demonstrate,” she said, “that women have not made nearly enough progress in the legal profession.”3 She reminded us that “female [and we would suggest minority] lawyers can talk, too.”4

Do women attorneys have a voice? Does it matter to jurors? The recent #MeToo movement certainly makes one think that women are finding their voices and are going to speak up now more than ever. This movement has put a spotlight on the impact that power has on women’s lives, as well as the likelihood that women are still learning to use their voices in the workplace and the courtroom.

Do attorneys of color have a voice? What about the Black Lives Matter movement? Does the energy of that movement translate to legal arenas like the courtroom?

In this article, we consider these questions: Do jurors notice or care about representation of women and diverse lawyers in the courtroom? Do they have biases about an attorney’s race or gender, and why do they have these biases? Is it an advantage or a disadvantage to have a diverse group of attorneys on the team?

Explicit and Implicit Bias

We know that assessing bias is difficult. Certainly, there are still overt, explicit biases; and these may be even more prominent due to our current president’s acceptance and espousal of nationalism (associated historically with white supremacy), anti-immigrant sentiments, and antifemale attitudes. As a result, some people feel freer to express racist and sexist attitudes.5 Most of us, though, still want to set aside our attitudes and prejudices about race and gender; however, it is difficult no matter how hard we try. As we will discuss, explicit bias and overt discrimination are only part of the problem because implicit bias, a more subtle and nuanced form of bias, still exists in all of us.6 We want to believe that we can be “color-blind” and avoid sexism in our diverse but not fully integrated society, yet we also must admit that race and gender have, at a minimum, an unconscious effect on the decisions that we make.

Jurors: Decision-Making and Bias

A trial is a one-time, costly experience for a client, and every factor that jurors will notice—from the color of the male attorneys’ ties to the women attorneys’ shoes (though we know that men’s shoes are scrutinized as well) must be considered. Any superficial factor, particularly in complex cases, can and should be considered as contributing to the perceptions that jurors have of a case. Why complex cases? The more complex the material, the more jurors will use what are known as “peripheral” means of processing, increasing the likelihood that they will pay attention to more superficial information. While we know that jurors still pay more attention to the facts in the case than they do to these superficial characteristics, how things “appear” will always be critical. Too many lawyers sitting at the counsel table? A witness who is perspiring too much? A client who looks too affluent? Nothing is off-limits for juror scrutiny.

Race and gender. Can we ignore superficial characteristics such as whether someone is black or white or male or female? Science tells us that it is psychologically impossible. Social category information, which includes race and gender, is the first and most salient information that others notice about us—it is automatically “encoded,” or observed.7 Even if we are not aware of this encoding, it is happening. We have taken in what others have told us since we were young and impressionable; and although we may have worked to divorce ourselves from attitudes based on these categories, they are essentially imprinted in our psyche. Thus, we notice the race and gender of others, and they notice these characteristics about us.

Heuristics. We also commit what is known as the fundamental attribution error—that is, there is something that makes us instinctively want to explain the world around us in terms of people’s essential attributes rather than more variable contextual cues. Individuals can choose to ignore stereotypes, get to know the other person, and judge that person based on what makes him or her an individual, but this is difficult to do in a courtroom. Further, we are not always rational in our decision-making; hence, hindsight bias, anchoring, and other heuristics (mental shortcuts) are used on a daily basis.

Implicit bias. We are not fully aware of our attitudes, beliefs, and prejudices. The concept of implicit bias—attitudes or stereotypes that affect our understanding, decision-making, and behavior unbeknownst to us—is real. Jurors may not be able to voice any preconceived notions or biases in voir dire because they do not know what their biases are. But we know that these biases exist because experimental methods in laboratory and field studies have provided convincing evidence that implicit biases are pervasive, are large in magnitude, and have real-world effects.8

The Implicit Association Test (IAT), a test of implicit bias, utilizes various images and adjectives that are shown to subjects quickly, and differences in the timing of the subjects’ reactions are a measure of biases that may be unconscious.9 While this is not the same as determining whether or not people, and particularly jurors, will act on those feelings, research in this area has demonstrated that these unconsciously held biases do affect the way we treat others across a large range of real-world contexts. And in terms of the legal realm, these implicit biases are a backdrop for trial.

Fairness and impartiality. In addition, the social pressure to be perceived as “fair and impartial” impedes any self-searching or volunteering of prejudices. Most jurors do not want to be considered unfair or biased, so they say nothing when asked by the judge if they can be fair. This norm is reinforced when the judge attempts to rehabilitate a juror who has expressed any kind of bias by saying, “But you would wait to hear the facts in this case, right?” or “Your bias would not operate here, correct?” Moreover, most people have a hard time acknowledging biases, even if they are aware of them, because openly expressing racism and sexism is still taboo for most groups in our culture.

Judges and bias. And, as an additional note, although our emphasis is on jurors, judges have the same predispositions and tendencies and use the same heuristics, like the fundamental attribution error, as jurors. As such, they, too, will focus to an extent on superficial characteristics like social categories, and they have implicit biases. The idea that they are more sophisticated in the law does not preclude such judgments, even when they try their hardest to be unbiased.

Countering bias. Research suggests that some techniques, such as creating an open dialogue about avoiding racial prejudice, can work to inoculate jurors so that prejudices do not hinder fair and impartial analysis.10 But we are far from understanding how to counter racial and gender bias in our courts. In essence, known or unknown, our prejudices (explicit or implicit) stay with us as we make our decisions.

Benefits of Diversity

Though the media does not always further positive stereotypes, legal programs on cable and network television may be promoting some positive models. Television shows and movies have led jurors to assume that trial teams—indeed, courtrooms—are full of diversity. The Good Wife, the Law and Order franchise, and the recent How to Get Away with Murder all show strong female attorneys and attorneys of color. Jurors expect that diversity exists in the courtroom and are not surprised when they see it.

Many corporate clients are very direct in stating their expectations that the lawyers who work on their matters will include the talents of men and women and will include attorneys of color. Why? In addition to the goal of providing opportunities to lawyers for whom opportunities historically have been lacking, there is an increasing recognition that the best decisions are made when there is diversity among the decision makers and their points of view. A 2011 Catalyst Inc. study found that companies that had the most female board of director members outperformed those with the fewest members in return on invested capital (ROIC) by 26 percent.11 And a 2007 report from Catalyst Inc. found that Fortune 500 companies with at least three women on the board demonstrated significantly stronger financial performance in return on equity (ROE), return on sales (ROS), and ROIC across a range of industries.12 There is no dearth of books discussing the power of diverse teams in delivering superior results.13

There also is evidence that diverse juries engage in different and better group decision making. According to one study, juries with racially diverse participants exchanged a wider range of information and made fewer errors than all-white juries did.14 If you have a diverse jury, you may want to consider having a diverse trial team to appeal to that jury.

Recognizing the power of diversity, many law firms have openly embraced a desire to hire, mentor, and promote a truly diverse population of lawyers.

Diversity in Context

But is diversity necessary for a winning trial team? That is a much larger question and must be answered in the context of a number of variables.

Case type. Does the case specifically involve issues of gender, race, or ethnicity? If a case involves sexual harassment or a product affecting women’s fertility or even a female business owner, then gender may be the focus of the case. If the case involves race discrimination, personal injury of a black man by a white truck driver, or a copyright violation of a rap song by a Hispanic artist, then race may be in the spotlight. These types of cases deserve more scrutiny with regard to the participation of a diverse team. However, even with that said, the overall context of the case and the lawyers available to try it should be taken into account.

Jury pool dynamics. What are the demographics and attitudes of the jury pool? The only way to make sure that you know the makeup and attitudes of the jury panel that you face is to test the case in the actual venue with jury research.

Some considerations might be as follows:

  • Is it a pool that is made up of a dominant racial or ethnic group? For example, Hispanics may be the dominant ethnic group in many parts of Texas and Florida, and blacks may make up a significant proportion of the population in many southern venues.
  • Is it an urban, suburban, or rural area? Often, jurors in rural and suburban areas are more traditional in terms of their perceptions of gender roles.
  • Are there likely to be more conservative or gender-traditional individuals (e.g., stay-at-home moms, males who are the sole family breadwinners) on the panel?
  • In what part of the country is the trial taking place? The urban coasts of the country are more diverse and less conservative in their attitudes than the interior West and Midwest.
  • Is a particular religious group prevalent in the venue? For example, Evangelical Christians and Hasidic Jews can create a significant influence on gender roles, at least for those participating in the religions and to some extent those affected by their reach.
  • Does the pool include jurors exposed to immigration? For example, influxes of significant numbers of immigrants into a previously Caucasian neighborhood can affect attitudes about individuals from other cultures—most often in a positive way, but it varies.

Surveys and in-person studies can help to establish the parameters of the venue and its gender and racial dynamics. These venue considerations should play a role in your decisions about the composition of the trial team.

Lawyer availability. Affinity bias is real when it comes to hiring and promoting in our “own image.” We tend to hire people who are a good fit for the firm and who are not only professionally skilled but also those to whom we can relate.15 For example, it can be extrapolated that partners get to choose the teams with which they work, and they tend to choose people like themselves. That is human nature, and this affinity bias is real when it comes to choosing who is on the trial team. Without women and minorities in leadership positions, though, it is likely that there will continue to be a dearth of women and diverse lawyers on trial teams, unless, of course, white male attorneys step up to choose women and diverse lawyers with whom to team.

Attorney Characteristics

What do jurors focus on in the courtroom? As jurors listen to the attorneys, they assess not only the legal competence and organizational skills of those lawyers but also their characteristics, such as similarity, emotionality, and likability. 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. A 2010 study suggested that race is a consideration when looking at the trial team.16 The study found that 31 percent of respondents believed that jurors are influenced by the race or ethnicity of the attorney at trial, and 39 percent believed that jurors are influenced by the race or ethnicity of the witness. About half said they believe that judges treat all ethnic minorities the same. When asked about their own biases, they were much less likely to say that they were biased against racial or ethnic minorities, but they were more likely to admit to being biased against non-English speakers, distrusting witnesses with heavy accents, and distrusting witnesses who testified with an interpreter.

In a 2011 study by DecisionQuest, 96 percent of participants said they agreed or strongly agreed that diversity of backgrounds, races, religions, attitudes, abilities, preferences, and viewpoints is good for society.17 Ninety-two percent said that a person’s race or ethnicity has no bearing on their attitude toward that person. When asked about gender in the courtroom, 97 percent said they believed that female attorneys are no more or less qualified than male attorneys, while 3 percent said that female attorneys are more qualified.

Similarity/identification. Perceived similarity is an important factor in persuasion. The ability of a juror to identify with an attorney can be a part of that attorney’s ability to persuade. This in-group bias, as noted earlier, is a preference or favoritism toward a person’s own group and is defined by how a person perceives himself relative to others.18 The more a juror sees himself as similar to the attorney, the more positively the juror will perceive the attorney. Likewise, there is a “similarity-leniency” bias, which is the tendency to prefer others who are believed to be similar to oneself. Thus, females may favor a woman advocate over a man when they perceive that the female attorney has attitudes, beliefs, and values similar to their own.19

In general, research has established that jurors find an attorney more persuasive, likable, honest, organized, and competent when the attorney matches the juror’s race (which most often has meant a Caucasian-Caucasian match). When there are diverse attorneys, nonblack jurors rated white attorneys as more organized and competent than black attorneys.20 However, black attorneys received higher ratings from black jurors regarding competence and organization. Interestingly, jurors, regardless of race, rated minority attorneys as more likable and honest than their Caucasian counterparts. Jurors, at times, favor witnesses of their own race.

While not directly measuring perceptions of similarity, a recent study tested how mock jurors perceive male and female attorneys.21 The study involved testing perceptions of a defense opening statement (in a white-collar crime case) under two conditions: one in which mock jurors were told that it was written by a male attorney and one in which they were told it had been written by a female attorney. The openings were identical, and overall the presentations were rated comparably—no matter the gender of the attorney. However, the author noted that there were small, but statistically significant, differences in evaluations based on the gender of the mock juror and the gender of the attorney. Notably, the jurors evaluated attorneys of their own gender more favorably; however, the highest ratings were for female jurors rating the female attorney.

In an interesting addition to that same study, a second survey component involved the IAT, which, as noted earlier, is a test of implicit bias—that is, a test of biases about which we are not even aware. The IAT “measure[s] automatic preferences by having respondents . . . sort images or terms associated with a category of people (e.g., male and female attorneys) along with positive and negative terms.”22 How fast people “sort male-positive words together versus female-positive words together” results in a score that shows “the strength of . . . automatic associations of each gender with positivity or negativity.”23 The results of the IAT showed that males “demonstrated a clear automatic preference (measured by a score called the D-score) for male attorneys,” and females “demonstrated an even stronger preference for female attorneys.”24 Thus, implicit bias has an effect on favoring gender-similar attorneys.

Further, what is particularly fascinating is that this preference for one’s own gender rebuts a myth long held about women—that is, that women do not like other women. The research above suggests that myth is false. It confirms findings of other studies in the past that also have shown this tendency for women to like women more than men like men.25

Emotion. Gender plays a role in jurors’ perceptions of what is an appropriate or inappropriate display of emotion. In our jury research, 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.

Why the disparity? If a female attorney shows emotion, jurors may rely on stereotypical thinking that it is typical for women to “get emotional.” But if a man shows similar emotion, jurors may believe that he must have had “a darn good reason” because it is not consistent with their expectations for men.26

In our experience, perceptions of emotional expression, particularly from a witness, may be situation specific. In some trials where we have seen a male witness crying, the jury (in posttrial interviews) indicated that he was being manipulative and that the tears were not real. In another recent trial, a man who was the husband of the woman suing for gender discrimination cried when talking about his wife’s depression when she lost her job. Though no posttrial interviews were conducted, it appeared that the jury was moved by his sincere emotion, and the high damage verdict was consistent with viewing him favorably.

Aggressiveness. Jurors are well attuned to an attorney’s degree of aggressiveness; jurors evaluate presenters along a continuum of passive to aggressive based on their perceptions of both verbal and nonverbal language displays. An aggressive communication style would include the use of antagonistic words, a raised or clipped voice, exaggerated hand gestures, and direct eye contact. Contrast these attributes with the passive style of maintaining a quiet, steady voice; standing still at the podium; looking at notes; and pausing often. Traits of aggressiveness, independence, objectivity, and self-confidence traditionally are attributed to men, so behavior consistent with those characteristics would be expected from men but not from women. However, as jurors have become accustomed to women in the courtroom, they tend to have expectations of women that are more similar to their expectations of men.

In studies of the effects of attorney gender and presentation style on juror decisions, early researchers found that, across genders, aggressive attorneys were perceived as more effective and successful than passive attorneys.27 However, other studies have suggested that people respond differently to an aggressive speech style depending on the gender of the speaker—with men typically responding less favorably to aggressive women, perhaps because the behavior is not stereotypically female.28

DecisionQuest’s research suggests that men and women are considered equally aggressive.29 When asked, “How aggressive are male attorneys?,” 22 percent of participants said “extremely aggressive” and 73 percent said “somewhat aggressive” (95 percent total). When asked the same question about women attorneys, 30 percent of participants responded that they are “extremely aggressive” and 61 percent said “somewhat aggressive” (91 percent total). The percentages are not significantly different; it is clear that men and women are perceived as similarly aggressive.

As always, though, both women and men have to consider the context of the case, the witness, and the trial team when making decisions about how aggressive to be.

Warmth/likability. Jurors typically perceive attorneys as warm and caring or cold and intimidating. As noted above, social science research in the past has found that personal identification and likability are strong correlates of favorable jury verdicts.30 It is our belief that a warm and caring attorney is more likely to win over jurors and persuade them that his or her case has merit.

Recent research that has particular relevance for this topic has been conducted with regard to women experts. The results of several studies suggest that women experts fare poorly if they are unlikable; in contrast, for males, likability does not appear to matter.31 However, women may have the advantage in cases that involve traditionally female fields, such as family law, criminal law involving domestic abuse and rape, stereotypical women’s products, and cases of alleged sexual harassment and gender discrimination.32 Women experts, even more than male experts, were rated higher in likability when they reduced jargon and maintained more traditionally female behaviors, such as smiling appropriately and using inclusive terms like we when discussing the scientific community. These behaviors also have implications for female attorneys, who must walk the line between being competent and assertive and being warm and likable in order to satisfy gender role expectations. Interestingly, however, there were fewer differences between male and female experts with regard to ultimate verdicts, which is positive news for female experts and, potentially, for female attorneys.

Presentation style. In a similar vein, there may be differences in perceptions of the presentation styles of male and female attorneys; such gender-biased perceptions suggest that men use more powerful speech styles while women tend to use powerless speech styles (indirect, hesitant) and overuse hedges (e.g., I guess, maybe) and qualifiers (words that affect the quality of the statement, such as very, least, sort of, etc.)33 Of course, it is not always the case that women, and not men, consistently use the powerless style.

Regardless of gender, the powerless style produces less favorable reactions from male and female listeners. Mock jury studies of male and female witnesses using powerless speech styles showed less favorable responses than when the same individuals used powerful forms of speech.34

The powerful style is obviously preferred in the courtroom as the advocacy role involves being confident and even forceful in advancing arguments. Importantly, presentation style can be taught and is not an inherent gender-based characteristic.

Summary. Race and gender, similarity, emotion, aggressiveness, warmth and likability, and presentation style are all important attorney characteristics that jurors use to decide whether they will take the attorney seriously, whether they can relate to and identify with the attorney, and whether they like the attorney and the attorney’s arguments. These characteristics are difficult to separate from one another as many of them interact with other characteristics and also with the type of case and the strength of the evidence in the case. When deciding how to staff the case, the team should consider the above factors and consider whether jurors will identify with the lawyers in that particular case and in the particular roles that they are being asked to perform.

Special Trial Considerations

Tokenism. It is critical to understand the role of tokenism in a trial setting. Jurors view female and minority attorneys who sit at the counsel table without a substantial role as “tokens.” If the lawyer never examines a witness and does not open or close for the client, there is a risk that the jury will perceive the lawyer’s presence as manipulative or pandering. Such a perception would, in this context, achieve the opposite of the desired effect, only serving to underscore beliefs about the insensitivity of the client. The risk is much greater in cases where race or gender is a central issue.

Further, when the women attorneys or attorneys of color (or other support staff) are treated in a subservient or demeaning way by other members of the trial team, this has an effect that is even worse than tokenism. Actions speak louder than words. If the attorney says, “My client does not discriminate,” and then turns to treat a woman or member of a minority group on the team in a demeaning way, this action will be perceived as telegraphing the lawyer’s actual attitudes. Jurors are likely to be offended when they observe these kinds of interactions, and they may draw conclusions not only about the lawyer but also about the client, whose interests the trial team is charged with representing.

Race or gender at center stage. When race or gender is at issue in the case, choices for trial counsel can become more important. There is no right or wrong decision in these cases, and the decisions may be based on who is most experienced, who is available based on workload, and who is willing to be on the team.

Consider a Title VII case, where your client, a large corporation, is accused of racial discrimination. Should an attorney of color be chosen as lead trial counsel? What message will be sent? There are no simple answers. The choice of a person of color might be a very powerful one as it might convey a commitment to diversity on the part of the client, leading jurors to believe in the rightness of the company’s conduct. However, if the company has an attorney of color sitting at the counsel table and not actively participating in the trial, the jury may draw the dangerous conclusion that the presence of the lawyer is intended to manipulate them. Such a message likely may lead the jury to conclude that the company, at a minimum, is insincere, so care must be taken in choices.

In a gender-related case, for example a sex discrimination case with a female plaintiff, particularly if the plaintiff comes across as a victim, consideration must be given to who will examine the complaining party. Care must be taken to treat the plaintiff with dignity and not to take any action that will cause the jury to view her as even more of a victim. The right decision may be not to choose the most aggressive attorney on the team to conduct the examination as the imbalance of power might come across as bullying or even replicating the abuse at the hands of the harasser. The dynamics of having another female or an attorney of color might at least give the appearance of being softer or more compassionate, but only if that attorney can demonstrate those types of qualities. Quite typically, the attorney with the most experience does the direct or cross of important witnesses and often has conducted the most important depositions. Therefore, consideration of these issues may be important at the deposition stage if you are planning to have a less experienced female attorney or attorney of color take the deposition or do the cross.

Context in court. Female attorneys and attorneys of color, with some exceptions, still may represent a very small part of the trial team. What, if anything, should they do to address the fact that they may stand out in the courtroom? There is, in our opinion, one choice: embrace being noticed. Many women attorneys, for example, express the opinion that standing out is exactly what they do best. They achieve the notice they need from the jury to be memorable, and then they seek to impress with their competence and expertise in the courtroom.

In one recent example, a female African American associate, surrounded by Caucasian men in gray suits with gray hair, very capably presented an opening in a mock trial. When asked for feedback about the presentations, the jurors knew the African American associate but did not remember the other attorneys’ names or what they said.

An attorney who is Asian will not appear “different” to a jury in San Francisco, nor will a Latino attorney appear “different” in San Antonio. They may not be the same as their Caucasian counterparts, but there will not be any disconnect with the jury.

As we mentioned before, women may not be considered different in the courtroom based on media expectations, but they will be noticed simply because women’s appearance usually gets noticed more than that of men. Some suggest that women attorneys should attempt to minimize their differences so that their words and actions will be the focus for the jury. There are times that women attorneys tell us that they want to be remembered as unique, but there are other times when they simply want to be one of the many, as in a multiple-defendant case. There is no right answer here—just issues to consider.

Summary Considerations

Lawyering is a complex business, and taking a case to trial tests every measure of an individual lawyer’s skills. The strengths of the individual lawyers are the backbone of a team’s makeup, and this is just as true today as it always has been. However, in the context of the type of case, the venue, and the makeup of the court, diversity on the trial team should be a consideration along with all of the other factors that should be weighed in making decisions about which lawyer should handle which aspects of the case.

Attorneys on the trial team bring their skills, cultural values, and abilities to connect with a diverse jury panel. The essence of teamwork is the melding of different points of view to achieve the best possible solution to a client’s problem. And the best solution that we can achieve is what our clients deserve.

Notes

1. M. P. McQueen, Minority Ranks at Large Firms Show Little Growth, Am. Law., May, 28, 2015.

2. Shira Scheindlin, Op-Ed, Female Lawyers Can Talk, Too, N.Y. Times, Aug. 8, 2017.

3. Id.

4. Id. (caps omitted).

5. Ellis Cose, One Year After Charlottesville, Trump Has Normalized Racism in America, USA Today, Aug. 11, 2018.

6. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1126 (2012).

7. Susan T. Fiske & Steven L. Neuberg, A Continuum of Impression Formation, from Category-Based to Individuating Processes: Influences of Information and Motivation on Attention and Interpretation, in 23 Advances in Experimental Social Psychology 1, 4 (Mark P. Zanna ed., 1990).

8. Kang et al., supra note 6, at 1130–31.

9. Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. Personality & Soc. Psychol. 1464, 1464–66 (1998).

10. See Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. Personality & Soc. Psychol. 597 (2006).

11. Nancy M. Carter & Harvey M. Wagner, Catalyst Inc., The Bottom Line: Corporate Performance and Women’s Representation on Boards (2004–2008) (2011), available at www.catalyst.org/knowledge/bottom-line-corporate-performance-and-womens-representation-boards.

12. Lois Joy et al., The Bottom Line: Corporate Performance and Women’s Representation on Boards (2007), available at www.catalyst.org/knowledge/bottom-line-corporate-performance-and-womens-representation-boards.

13. See, e.g., Frederick A. Miller & Judith H. Katz, The Inclusion Breakthrough: Unleashing the Real Power of Diversity (2002); Scott E. Page, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies (2007); Joe Watson, Without Excuses: Unleash the Power of Diversity to Build Your Business (2006).

14. Samuel R. Sommers & Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions, 26 Personality & Soc. Psychol. Bull. 1367 (2000).

15. Helen Turnbull, The Affinity Bias Conundrum: The Illusion of Inclusion, Part III, Profiles in Diversity J., May 20, 2014.

16. Mark R. Phillips, Jurors’ Perceptions of Ethnic Minority Attorneys: Are We in a Post-Racial Era?, 8 Minority Trial Law., Spring 2010, at 1.

17. DecisionQuest, A Study of Attitudes Toward Race and Gender (2011) (unpublished in-house study) (summary on file with author).

18. L. A. Rudman & S. A. Goodman, Gender Differences in Automatic In-Group Bias: Why Do Women Like Women More Than Men Like Men?, 87 J. Personality & Soc. Psychol. 494–509 (2004).

19. Jessica Baer, Jurors’ Opinions of Female Attorneys: Key Research Findings, Litig. Insights, 2015.

20. Phillips, supra note 16, at 10–11.

21. Ellen Brickman, Does Attorney Gender Matter to Jurors?, DOAR.com (Mar. 29, 2016), www.doar.com/company-news/blog-post/does-attorney-gender-matter-to-jurors/.

22. Id. For more information on the Implicit Association Test, see Project Implicit, https://implicit.harvard.edu/implicit/ (last visited November 30, 2018).

23. Brickman, supra note 21.

24. Id.

25. Rudman & Goodman, supra note 18.

26. Leah R. Warner & Stephanie A. Shields, The Perception of Crying in Women and Men: Angry Tears, Sad Tears, and the “Right Way” to Cry, in Group Dynamics and Emotional Expression 92 (Ursula Hess & Pierre Philippot eds., 2010).

27. William M. O’Barr & John M. Conley, When a Juror Watches a Lawyer, 3 Barrister 8 (1976).

28. See Linda L. Carli, Gender, Language, and Influence, 59 J. Personality & Soc. Psychol. 941 (1990); Peter W. Hahn & Susan D. Clayton, The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decisions, 20 L. & Hum. Behav. 533 (1996).

29. DecisionQuest, supra note 17.

30. Roger G. Oatley, Addressing the Jury: Achieving Fair Verdicts in Personal Injury Cases 1–358 (2d ed. 2006).

31. See Stanley L. Brodsky et al., Credibility in the Courtroom: How Likeable Should an Expert Witness Be?, 37 J. Am. Acad. Psychiatry & L. 525 (2009); Tess M. S. Neal et al., Warmth and Competence on the Witness Stand: Implications for Credibility for Male and Female Expert Witnesses, 40 J. Am. Acad. Psychiatry & L. 488 (2012).

32. Tess M. S. Neal, Expert Witness Preparation: What Does the Literature Tell Us?, 21 Jury Expert (Am. Soc’y of Trial Consultants), Mar. 2009, at 44.

33. Baer, supra note 19.

34. William O’Barr, Linguistic Evidence: Language, Power, and Strategy in the Courtroom (Academic Press 1982).

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By Ann T. Greeley and Karen Hirschman Larsen

Ann T. Greeley is a psychologist and national jury consultant with DecisionQuest. Karen Hirschman Larsen is an experienced litigator and now serves as an arbitrator in large commercial cases. They may be reached, respectively, at [email protected] and [email protected].