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An astonishing 80 percent of expert witnesses chosen by attorneys are male, and those male experts get paid on average 60 percent more than their female counterparts, according to data from The Expert Institute in New York, a leading provider of expert witnesses.
Some of the predominantly male attorneys hiring these experts may be biased.
Others may believe that hiring female experts will put them at a competitive disadvantage when they appear before jurors with outdated views on gender roles, according to judges, attorneys, service providers, and professors interviewed by Bloomberg BNA.
Either way, the problem is serious and the path forward is rife with uncertainty.
Educating attorneys and jurors on their conscious and subconscious biases against female experts may help at least partly offset this profound gender bias in U.S. courtrooms, interviewees say.
But others say these attempts at gender-bias education could backfire, especially with jurors, as no one wants to be told they are biased.
Because no one thinks remedying the problem will be easy, or take place anytime soon, attorneys should also consider coaching female experts on how to get around gender-based stereotyping by jurors.
Part 1 of this two-part series explored the scope of, and reasons behind, the gender gap for expert witnesses. Part 2, here, looks at possible solutions.
Gender biases are built into our culture, and are just as likely to affect attorneys’ perceptions and decisions as they are to affect those of jurors, Tess Neal, a psychological scientist told Bloomberg BNA.
But gender bias can be overcome by calling it to attorneys’ attention, said Neal, an assistant professor of psychology in Arizona State University’s College of Interdisciplinary Arts & Sciences in Phoenix and a founding member of ASU’s Program on Law and Behavioral Sciences.
If attorneys “are motivated to overcome the bias, they are likely to correct for it in both their own expert retention decisions and in their preparation for the case by building in correction strategies for triers to hear too,” Neal said.
Longtime trial consultant Katherine James is frustrated by attorneys’ biases when it come to hiring female experts, and their reticence to change.
“It is a really old, tired, and false argument to say ‘I just couldn’t justify hiring her because I needed to consider the needs of my client,’” she said.
“Most attorneys use that as an excuse/reasoning/justification to do what they’ve always done rather than what is best for this case,” James said.
We have a generation of women who are in “non-traditional” careers and therefore ripe to be expert witnesses, she said.
Attorneys need to start by hiring more women as experts, James said.
And spend time working with female experts “so that the rapport that the lawyer has with the woman is as good as the rapport he (it is almost always a ‘he’ making choices) has with his male experts,” she said.
As for jurors, attorneys may be able to compensate for juror gender bias by highlighting, or asking the expert witness to briefly describe to the jury, the literature about the double standard that women experts face, Neal said.
“It has the potential to mitigate the gender effects,” she said.
Brooke Coleman, a professor at Seattle University School of Law focusing on procedural justice, agreed. But Coleman said judges, not attorneys, should have the leading role in mitigating bias among jurors.
“To have that education come from an attorney on one side of a case or the other distracts from the message because it looks self-serving,” Coleman told Bloomberg BNA.
Instead, judges should educate jurors on gender bias just as they educate them about the law, she said.
Some judges already do this, according to Coleman. Judge Mark W. Bennett of the Northern District of Iowa requires his juries to watch a video about implicit bias, she noted.
Though Bennett’s video tends to focus on race, there is no reason that judges could not also educate juries about gender bias, Coleman said.
But Peter Glick, a professor of social sciences at Lawrence University in Appleton, Wis., and an expert on sex discrimination, disagreed with suggestions that jurors can be educated by telling them the reasons why “you might be prejudiced against this female expert.”
That approach would likely be counterproductive because “people don’t like to be told they are prejudiced,” he said.
In addition to educating attorneys and jurors on gender bias, more coaching of female experts themselves might help navigate around perceived gender-based stereotyping by jurors.
Some coaching along these lines is already underway.
“These conversations certainly do take place,” Michael Talve, CEO of The Expert Institute, said.
“This could conceivably be an area of focus if the attorney determines that a male or female expert may be at a disadvantage” before a jury, he said.
It’s “absolutely reasonable” for attorneys to ask female experts to tailor their planned testimony to mitigate gender-based stereotyping by jurors, “though I anticipate some women might be offended by this suggestion,” Neal said.
If Glick were presenting a female expert at trial, he would emphasize her credentials to establish credibility, he said.
“It would also make sense to coach female experts to present themselves in a warm as well as competent manner (cold but competent can elicit backlash),” he said.
This advice is directed at counteracting what Neal described as a “double standard of sorts” in jury pools, “in which jurors expect women expert witnesses to uphold both their gender role and their occupational role.”
To be perceived as credible and persuasive by jurors, Neal said, “women experts must come across as both competent and knowledgeable (i.e., upholding their occupational role as an expert witness), but also warm and likeable (i.e., upholding their gender role).”
Glick also suggested coaching the expert on ways to “avoid being victimized by juror biases.”
But Laura Shamp, a trial attorney for 20 years, doesn’t believe the gender of an expert witness affects juror perceptions. Nor does she ask female experts to tailor their testimony around possible gender bias.
“I ask all experts to behave in the same way, professional, courteous, sincere—male or female,” Shamp, a partner at Shamp, Speed, Jordan & Woodward in Atlanta, said.
James, the long-time trial consultant, said the problem of gender bias against experts is real, but jurors shouldn’t be blamed.
The best approach, James said, is for attorneys to coach experts, male and female, to connect with jurors by using “human based criteria” in their testimony.
For example, the distance a car travels might be the length of a football field. It might also be the distance between J.C. Penney’s and Best Buy at The Westfield Mall, she said.
“Men can use them as well as women and it makes them human in the eyes of the jurors,” she said.
Former federal district court Judge Shira Scheindlin, now with Stroock & Stroock & Lavin in New York, said clients will always want to win their cases.
But their lawyers need to convince them that the gender of the expert will not diminish their chance of winning.
“Indeed, it just might enhance it,” Scheindlin said.
To contact the reporter on this story: Bruce Kaufman in Washington at firstname.lastname@example.org
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Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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