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Sex in Court
The Advantage: 12.07: V.4, 3rd edition
Pants or dresses? Navy or gray? Heels or flats? Is this diamond too big? Too small? These questions skirt the issue, so to speak. What’s really being asked is “How can a woman lawyer best represent her client in a context that has been dominated by men for thousands of years?” Our answer, not surprisingly, is that effective communication skills matter most. Whether you win or lose depends not only on the facts, but on how the message of your case is received by the jury, judge, mediator, or the arbitrator. There are teachable/learnable verbal and nonverbal elements of presentation that drive credibility, and a lawyer’s credibility is a key component in persuading the trier of fact. Women win in court every day; this article is about how they do it.
Let’s not kid ourselves, there is some truth to the “Men are from Mars, and women are from Venus” cliché. Gender doesn’t simply influence how the sexes talk to each other – it shapes the stereotypes audiences have about how men and women ought to talk to each other. Girls are socialized to use communication to create and maintain relationships; boys are socialized to use communication to win the games they play. That doesn’t stop or change when we become adults – men tend to be goal-oriented and women tend to be relationship-oriented. Of course, this is not true of all women and all men. In fact, most female litigators have or adopt a more masculine communication style.
Communication scholars have long relied on a continuum of presentational attributes ranging from “feminine” to “masculine.” This should not suggest that one end of the continuum is better than the other. However, right or wrong, many masculine communication traits have become associated with power and credibility because men have traditionally held positions of authority and played more dominate roles in society. Communication studies have focused on uncovering those behaviors that increase perceptions of credibility and discovered that they are not simply those found at one particular end of the spectrum. Still, the balance is definitely tipped and audiences’ expectations of credibility are mainly based on the masculine style.
It’s helpful to explore these verbal and nonverbal markers as a first step in developing your best style of advocacy.
Verbal Communication
Verbal communication embraces both the content and the context present during communication. Generally, women tend to communicate to understand each other, encourage ongoing dialogue, and build relationships. Because women’s discussions tend to involve feelings, they typically use language that expresses sympathy and empathy – “I’ve felt like that myself,” “The same thing happened to me,” “I can imagine how you must have felt.” This kind of communication is important when building trust with a client or a jury and can also be advantageous during some aspects of negotiations. It becomes a hindrance, however, when one needs to appear strong, decisive, and in charge.
For men, conversation tends to be competitive and task-oriented – “The point is…” “What we need to do is…” “Listen to me…” Because of this adversarial style, men typically interrupt more frequently and seek to dominate or control conversations. This kind of communication is effective for pushing through one’s personal agenda and getting things done quickly, but it comes at a cost that can be the destruction of trust, respect, or a team atmosphere.
Women are often inclined to ask questions that invite the other person to share information – “How did you feel about that?” “What did you do next?” This communication trait has obvious advantages when taking depositions and conducting voir dire. Men tend to make statements and then ask for simple affirmation or denial --“And, then you signed the contract, correct?” In the context of examinations, this is effective if you want to make sure a specific detail is included or the witness it not given much leeway, but it can be ineffective if you are trying to get the witness to tell the story in their own words.
Feminine style also tends to be more verbose, including more filler words, qualifiers, and descriptives -- “I think,” “I mean,” “very,” or “well…” Masculine structure tends to be brief, concise, and uses few descriptive words. A problem for women is that credibility is attained with certainty, not with hedges and qualifiers.
Nonverbal Communication
Men and women display very different nonverbal cues, some of which are controlled more by our biology (e.g., tone and pitch of our voice) than by our socialization. It is important to recognize the credibility assessments people make about you are based on your nonverbal cues. You should make every effort to change those that invite low credibility ratings. Select examples are:
Eye contact: One of the best indicators of credibility is eye contact. When delivering an opening statement or closing argument, making eye contact with every member of the jury will enhance your credibility more dramatically than if you simply scanned the jury box. Typically, women anchor their gaze more on people’s faces then men, but women are also more likely to break eye contact when confronted. If your objective is to build rapport, then the key is to look people in the eye, but not so long as to make them uncomfortable or appear confrontational. If your object is to inconspicuously make a witness uncomfortable, then you should make repeated and unwavering eye contact.
Space: People who take up more space are judged as more credible. Men tend to take up more space then women, not just because men are bigger in stature, but also because of the way they stand or sit, and because of the way they gesture. Picture how both use a podium. A man will typically stand tall, with arms stretched to either side or he may stand to the side, perhaps with one hand resting on the side. A woman will stand with her arms, which are usually below and hidden by the podium, closer to her torso. The closed position behind the podium sends a message of passivity and timidity.
Body position: Because women’s body position show interest – head nodding, forward leans, and mirroring postures – she may be perceived as more polite than a man in the courtroom. These behaviors also encourage one to speak more freely. During more assertive cross-examinations, female attorneys may more easily avoid some of the negative feedback we hear from jurors about the unnecessarily aggressive male attorney.
Head position: The nonverbal behavior that is almost uniquely characteristic of women is the head tilt. What’s important is that the head tilt, along with averted eye contact, is the most commonly associated trait with low credibility since it tends to signal childlike curiosity or bewilderment.
Voice: Men have the biological advantage of having voices that fill courtrooms. They also have lower pitch. When some women try to increase their volume, their pitch often becomes higher and the rate faster. The volume and pitch factor may explain why judges and opposing counsel interrupt women much more often than men.
While this is a very brief analysis into a much researched and debated topic, the bottom line is that men and women alike can enhance their communication effectiveness by adopting the traits and behaviors associated with higher credibility. Additionally,
one should consider who is being communicated with (client, judge, jury, arbitrator, mediator, colleagues, etc.) and the context of the message (deposition, settlement negotiations, voir dire, examination, etc.) to understand if there is a masculine or feminine trait that could increase the effectiveness of the presentation. A seminar on this topic is available by calling Tsongas at (503) 225-0321 or (206) 382-2121.
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