Women Lawyers, Juries, – And Stress?

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At a litigation low point many years ago, my frustrated client stammered around for awhile and finally sighed, "I can't help wondering if this would be going better if you were wearing pants." He meant if I were a man; women lawyers wore skirt suits all the time in those days. I forget my exact response, but I'm pretty sure it wasn't the one that was really in my mind, which was "Sometimes I wonder that too."

In a year when every possible facet of the Gender Issue is being played out in the nightly political headlines, we know the question is still valid. It's so loudly and omnipresently valid, in fact, that it's easy to tune it out sometimes. That must be why the article that most recently caught my attention about gender didn't have anything to do with the presidential election. It was a psychological study about gender in the workplace. Both male and female employees reported more stress — more headaches, more fatigue, more "psychological stress" — when they were supervised by a woman than when they were supervised by a man.

Women especially

I don't mean to be depressing. I really don't; there's plenty else to be depressed about these days. And I'll admit there's a small ray of light in the study's finding that for male employees, the stress difference disappeared when they only had one boss. But female employees were consistently more stressed when they worked for other women. Here are the overall findings, from the study's press release:

Scott Schieman and Taralyn McMullen of the University of Toronto reviewed the psychological distress levels and physical symptoms (e.g., headaches, fatigue) of workers who were managed by either two supervisors (one male, one female), one same-sex supervisor or one supervisor of a different sex.

The findings revealed that women working under a lone female supervisor reported more distress and physical symptoms than did women working for a male supervisor. Women who reported to a mixed-gender pair of supervisors indicated a higher level of distress and physical symptoms than their counterparts with one male manager.

The researchers also found that men working under a single supervisor had similar levels of distress regardless of their boss’ gender. When supervised by two managers, one male and one female, men reported lower distress levels and fewer physical symptoms than men who worked for a lone male supervisor.

Do jurors feel the same?

Is this relevant to female trial lawyers? It sure feels that way. Although some research goes the other way, there are plenty of studies suggesting that all other things equal, juries respond better to male lawyers than to women. (See the notes below for links to a few, and note well the caveat in the next paragraph.) If it's true that people literally experience stress when they take direction from — or, by analogy, listen to arguments and cross-examination by — a woman, well, that could explain a lot.

Of course, that doesn't mean that women lawyers are always, or even ever, at a disadvantage in the real courtroom. Most obviously, all things aren't equal in real trials.

Strength of evidence is by far the strongest factor in predicting jury verdicts, and then there are all the other moving parts: the lawyer's skill, her personal qualities, the impression her opponent makes, the individual jurors, the issues in the case, and so on.

The contrast effect

In addition, a woman lawyer who performs better than jurors expected her to may actually have an advantage. The jury consultant Reiko Hasuike explained this "contrast effect" in a 2000 article in The Practical Litigator, "Credibility and Gender in the Courtroom:" "[I]f a woman advocate is seen as being more competent than expected, she will also be considered more competent than she actually is, because her perceived competence is outside of the expected range." (I don't think there's a free link to the article, but it's on Westlaw.)

With the vice-presidential debate scheduled for tomorrow, I don't think I'm the only one thinking about the contrast effect tonight.