What gender is your expert witness?To many attorneys, it may seem self-evident that a good expert witness, whether male or female, will be well-received by courts and juries, regardless of sex or gender.  Certainly, in this new year and century, that is the hope.  However, many studies, both anecdotal and statistical, have found that female expert witnesses, who are not coached to prepare themselves for gender biases, may have difficulties on the stand.  Thus, it becomes imperative for attorneys to be aware of these biases, to train their experts appropriately, and to effectively counteract those predispositions, ultimately making their credible female experts even more effective in testimony.  Moreover, there are strategies to help attorneys utilize their female experts in a way that makes them perceptually more likable than their male counterparts, so the techniques discussed herein apply to all attorneys and to coaching men and women, in distinct ways that will sway jurors and deter intrusive cross-examination.

Background:

Unfortunately, gender biases in favor of male experts, though by no means consistent, have been an issue for decades.  As early as 1984, court, juror, and opposing counsel’s behavior has been shown to change markedly, with gender as a distinct variable.  See, e.g., Riggio, “The role of nonverbal cues and physical attractiveness in the selection of dating partners,” J. Soc. Pers. Relat. 1:347–57 (1984); See also Tess McNeal, “Women as Expert Witnesses: A Review of the Empirical Literature, Amer. Psych. Law Society (AP-LS), Symposium (2013), (retrieved Apr. 15, 2013).  Studies also indicate, however, that under certain conditions, female experts out-perform their male counterparts, if they are coached properly by the attorneys who retain them.  This article addresses the techniques every attorney should utilize, to make the most of their expert witnesses, regardless of gender.

Part I: How to Prepare Female Experts for Intrusive Cross-Examination:

The literature suggests that, “female expert witnesses are more likely than male experts to be asked personally intrusive questions (e.g., “Have you ever been raped?” or “Are you sexually attracted to the defendant?”).” Tess McNeal, “Expert Witness Preparation: What does the Literature tell us?”, Vol. 21 The Jury Expert No. 2(Mar. 2009).  Fortunately for attorneys, it is a simple matter of preparation and, if done correctly, opposing counsel, not your expert, will appear to be at fault and lose credibility.  Female experts who respond assertively to intrusive questions will, quite frequently, tilt a jury in their favor, and opposing counsel will be viewed as using bullying tactics.  See id. Attorneys need to be ready to object to these lines of questions, both assertively and in a friendly manner, as though it were self-evident how irrelevant and disrespectful these types of questions are.  In turn, litigators must prepare female experts for potentially invasive cross-examination.  This preparation should not merely consist of making their experts aware of what to expect, but should also include tactics to help the witness come out ahead in the court and jury’s eyes.  As one scholar and continuing legal education attorney expresses, “Assertive responses include…pointing out the inappropriateness of the questions, that the questions were intruding unnecessarily into the privacy of the expert, and that such questions targeted personal opinions or experiences and had nothing to do with the professional conclusions the expert was offering to the court.”  Id. These responses must be made by both the attorney and their female expert, to maximize the expert’s credibility in court. So long as attorneys teach their female experts to be assertive, rather than defensive or passive, and to make eye-contact with the jurors, it is likely that the jurors themselves will not only understand the inappropriate nature of the cross-examination but will appreciate the manner in which both attorneys and their female witnesses handled it.  See, e.g., id. This strategy will likely “turn the tables,”  making opposing counsel lose credibility, while gaining a connection and a boost in effectiveness with judges and juries.

Part II:  How to Make a Judge & Jury Love your Female Experts:

Aside from intrusive cross-examination, female experts should both be made aware of and prepared for the fact that many judges and juries may initially view them with skepticism.  See, e.g., Jacklyn Nagle, Stanley Brodsky, & Kaycee Lee Weeter, “Smiling Behaviors and Credibility in Actual Trials: Naturalistic Observations of Witnesses,” AP-LS, Symposium (2013), (retrieved Apr. 15, 2013).  There are many ways to counteract these initial prejudices.  Jurors appreciate witnesses who smile and have friendly non-verbal postures towards them.

Although a study of eleven trials, with thirty-two male and female witnesses revealed that, “male witnesses were seen as more trustworthy than female witnesses,” this trend can be counteracted by the techniques and strategies discussed above.  Id. Potentially damaging perceptions that appear most prevalent, with respect to female witnesses include: appearance, age, dress, and how female witnesses interact with trial court judges.  Denise Mumley & Dawn M. Peuschold, “Testifying Effectively: Advice from “the Trenches” for Female Expert Witnesses,” AP-LS, Symposium (2013), (retrieved Apr. 15, 2013).  Accordingly, attorneys should prepare their female experts to dress professionally (business suits are the most appropriate attire), be well-groomed, and form amicable, friendly relationships with the judge who is trying the case.

Conclusion

Both male and female experts should be retained by attorneys, and neither gender should frighten a litigator.  Most studies show that if the strategies discussed are utilized by attorneys and their experts, courts and jurors will not focus on the gender of the witness but rather, on the substance of what he or she is explaining.  There is no disadvantage to hiring either gender; women experts who acknowledge and are coached to know that gender matters but address juries as though it is not relevant to their credibility are seen very favorably.  Likewise, male experts can be viewed, at times, to be more or less likable and knowledgeable than their female counterparts.  The bottom line for attorneys is this:  Be aware that sexism still exists with respect to experts, but be prepared (and prepare your witnesses) to expect it but act as though their individual and professional relationship with the court and jury is what is important, not their gender.  Attorneys who train their female experts to testify accordingly will reap great benefits, as quantitative data suggests that women can, under the right circumstances, be seen as even more credible than men, as long as the techniques herein are deployed.  No matter who your witnesses are, prepare them for what they should expect, as an individual, and juries will respond with enthusiasm and acclaim.

By: Kat Hatziavramidis, Attorney-at-Law