COMMUNICATION || Bridging the Gender Gap

Bridging the Gender GapAuthor(s): Diane M. SumoskiSource: Litigation, Vol. 27, No. 3, COMMUNICATION (Spring 2001), pp. 31-35, 67Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760213 .

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Bridging the Gender Gap

by Diane M. Sumoski

Men and women may come from different planets. We cer?

tainly have different ways of communicating, listening, and

responding to each other. But does this affect our persuasive? ness in the courtroom and our effectiveness as advocates? Is there a gender gap that both men and women advocates must

bridge to get their points across, or is this mostly hype? At the risk of perpetuating some stereotypes and setting off

a divisive political debate about sexism, I believe there is a

gender gap in communication. Because of it, people seem to react differently depending on whether the attorney in front of them is a man or a woman. People have different expectations of male attorneys and female attorneys. Even attorneys them? selves often have different approaches to dispute resolution, depending on their gender.

My own view is based primarily on anecdotal evidence, not on scientific study or social analysis. In fact, I freely admit that I have accepted the conclusions of some studies because

they are consistent with my own experiences, anecdotes I have heard from other attorneys, and information from expe? rienced jury consultants.

With that disclaimer, I will venture to say that women gen? erally view themselves as individuals communicating within a network of relationships. Society instructs women to con? sider problems in this framework and to understand experi? ences in a contextual sense.

Consequently, female problem-solving methodology takes into account more heavily the context of the problem than for?

mal procedures and rules. By being more conscious of the

ongoing relationships of the parties, women tend to avoid

relying on a rights-based analysis. Instead, women are more

likely to negotiate for consensus.

Men, on the other hand, view themselves as individuals in a hierarchical social order. Historical and cultural male char

Diane M. Sumoski is a partner at Carrington Coleman Sloman & Blumen?

thal, L.L.P., in Dallas, Texas, and was co-chair of the Litigation Section's Woman Advocate Committee from 1998 to 2000.

acteristics include competition, aggression, and decisiveness. Men's problem-solving methodology is designed to get the

upper hand. They are trained from early childhood to be lead? ers and to be tough. From these ingrained values, men often

display a need to be right or on top. Because of men's and women's different views of the world, they can stumble in

cross-gender communications.

Further confirmation of the existence of a gender gap is found in the results of studies utilizing the Myers-Briggs Type Indicator (MBTI) test. The MBTI measures personality types by indicating people's preferences for methods of making decisions and approaching problems. For lawyers, these pref? erences most definitely impact their communication styles.

One of the preferences measured by the MBTI is "think?

ing" versus "feeling." Thinkers make decisions in a detached, objective, and logical manner. They employ syllogistic think?

ing and make a conscious effort not to let their personal pref? erences get in the way of making a right decision. Feelers, on the other hand, prefer to make decisions by using a more per? sonal, subjective, and values-based approach. Thinkers gener? ally do not take conflict personally; indeed, they tend to look forward to a good argument. Feelers are more likely to take conflict personally and seek to promote harmony.

King Solomon's solution to resolving the claims of two women to the same child might be characterized as a thinker's solution. He ruled that the child should be split in two: one half to each woman. Of course, King Solomon's seemingly cold, thinker approach had an ulterior motive?to flush out the true mother. Because of his consideration of the entire context of the situation and his belief that the true mother would readily give up her claim in order to save the life of her

child, King Solomon ultimately should be considered a feeler. He relied on his own ingrained values in supposing that the true mother would never permit such an atrocity, while a false

mother would. In this country, 60 percent of all men prefer thinking over

feeling. Only 35 percent of all women prefer thinking over

Litigation Spring 2001 Volume 27 Number 3



feeling. This gender gap carries over into the legal profession, although not as strongly as in the general population. Among more than 3,000 lawyers who took the MBTI in a 1993 sur?

vey, 81 percent of the male attorneys preferred thinking, while

only 66 percent of the women attorneys did. The Lawyer Types, 79 ABA J. 74, 76-77 (1993).

Thinkers and feelers frequently encounter instances of fun? damental miscommunication. A thinker?most often a man? will arrive at a solution that is logical but may be detached from the full context of the situation. This detachment will not sit well with the feeler?most often a woman?whose solu? tion to the same problem may be so subjective and value based that it offends the logical sensibilities of the thinker. The tendency of men to prefer thinking and of women to pre? fer feeling widens the gender gap.

Although this is not an article about gender bias, it is an article about communication, and communication is a two

way street. A communication is not only what one says (or does). What the recipient of the communication perceives is a fundamental component of the process. And gender bias can exist at either end of this communication.

One of my female colleagues confronted gender bias while

talking to a prospective client about litigation over his

employment contract. The contract provided for significant severance payments if he were fired but afforded nothing if he

quit. His employer was pressuring him to quit. The client told

my colleague that he really had not gotten to know her yet, but he wanted to know if she felt that she was "tough enough" to handle the matter for him. She responded by describing her

years of experience in the substantive area. She pointed out

that, through her experience, she had learned that there are times to be tough and times to ease off, and that she had done both in the past. She told him she expected that she would handle his case in the same manner. She then asked him if he was satisfied with that level of toughness. He told her, "Works for me," and demonstrated more respect for her from that

point forward.

My colleague was convinced that this client would not have asked the same question of a male attorney. It seemed more

likely that he had a gender-biased view of how attorneys oper? ated. He did not know if a female lawyer could stand up to his

employer's aggressive tactics. My colleague took the correct

approach in responding to her client's question. Rather than

blustering that she was a bulldog?a contention that would have sounded hollow to this client's ears or like the rantings of a strident female?she responded calmly and directly to his

question. In sum, her logical and syllogistic approach was just

what this chent needed to hear. He hired her to handle the case. A woman client told me about a very different experience

she had with a male attorney. She approached him for advice

concerning an insurance company's denial of her claim under a warranty contract she had on her car. The insurance com?

pany based its denial on an exclusion in the warranty that did not appear to her to apply to the situation. Although the attor?

ney agreed that the exclusion should not apply, he said that it still would be a difficult case to win. When she asked him

why, he simply told her that this is a very technical area of the law, and he did not want to bore her with the details. Never?

theless, he said he would be pleased to handle the matter, and she should rest assured that he had won similar cases in the

past despite the difficulty involved. The woman walked away from that conversation unhappy.

She wanted to understand the full context of the situation, and this attorney had not helped her to do that. He failed to recog? nize her need to know more than that he was confident he could succeed despite the downside to the case. He apparently concluded that was all she really needed to know. From his

point of view, winning the case was the sole point of hiring a

lawyer. Many clients, however, particularly women, also want to understand how their attorney intends to proceed in han?

dling and advocating their case to obtain that victory. Effective communication is your means of obtaining, main?

taining, and developing better relationships with clients. Because the gender gap can interfere with those critical com?

munications, you need to become more aware of its existence, regardless whether you are a man or a woman.

Bias Blunders Another of my colleagues told me of an experience she had

as a young lawyer dealing with an expert witness. She was the number-two attorney on the case, while a male partner was lead counsel. As is often the situation, she did much of the leg

work in preparing the case; as part of that work, she had spent months dealing with an expert witness by telephone and send?

ing him letters to assist him in reviewing the facts of the case,

arriving at his expert conclusions, and preparing the substance of his report. When the expert's deposition was taken, the male partner handled the expert's defense, while my col?

league sat in the deposition, took notes, and participated in conferences on breaks. After the conclusion of the morning's session, the expert and the two attorneys went to lunch. Dur?

ing the small talk during lunch, the expert suggested to my colleague that she should consider going to law school. She

politely informed him, much to his embarrassment, that she




had already done that. Indeed, she had gone to a well

respected law school, passed the bar, and had been practicing law for a few years.

One might try to excuse this expert's error by attributing it to my colleague's youthful appearance. However, she had sus? tained an intensive ongoing substantive contact with this wit? ness regarding the legal issues pertinent to the case, and this

just happened to be the first time they had met. His conclusion that she was anything other than a lawyer is difficult to attribute to anything other than gender bias.

Being aware of gender bias is essential if you expect to overcome it. You want your audience to hear your message despite any inherent biases they may have. The key to being a

persuasive communicator is to be credible. Credibility is

premised on at least two characteristics: perceived compe? tence and trustworthiness. Jurors, clients, and sometimes other attorneys, however, seem to perceive the competence and trustworthiness of an attorney's presentation through a fil? ter based on the attorney's gender.

Studies of potential jurors' perceptions of male and female attorneys have shown that both men and women tend to rate a man's performance more favorably than a woman's

performance when their performance is identical. Women are generally viewed, however, as more competent in areas

perceived as women's expertise, such as child rearing, domestic tasks, and tasks that focus on feelings. Thus, in the

litigation setting, women are viewed as more competent in

litigation involving family issues, while men are perceived more favorably in technical, abstract, or complicated trans actional matters.

Researchers also have noted that there is a contrast effect that can occur to a woman attorney's benefit. If a woman per? forms well in an area that a jury or client may perceive as male oriented and outside a woman's competence, the observer

perceives her competence to be even greater than it is. Because of reduced expectations, a good performance can receive (perhaps undeserved) rave reviews.

Due to the presumption of superior competence that male

attorneys enjoy, women attorneys must make special efforts to demonstrate their competence, especially in a case involving more technical issues. Mispronunciation or shyness regarding technical terminology can be a real blow to the woman attor?

ney's ability to persuade. She should practice, practice, prac? tice speaking the language so that she can talk comfortably to the jury and the witnesses about time division multiplexing, mesothelioma, or whatever the issue may be. Getting approval of her performance by someone in a more powerful position (the judge) or an expert witness will buttress her efforts. For instance, if her expert witness answers a complicated question

with "You are absolutely correct in the way you describe that

component's function, Ms. Smith," that response will go a

long way toward confirming, supporting, and enhancing her

credibility and persuasiveness. Likewise, in a family-oriented case, a male attorney will

need to strive to demonstrate his competence in this perceived female domain. In a child custody case, it would be helpful for the male attorney to refer during voir dire to his involvement with and care of his own children so that the jurors can see that he has a heightened level of competence with the issues. Later in the case, when he asks a witness about the child's needs, the

jury will see him as qualified to ask that question. In his clos?

ing, his summation of what is in the best interest of the child

will be much more credible because of his demonstrated com?

petence to talk about such matters. I have found in my own practice that perceived competence

can be the turning point in communicating across the gender gap. At the outset of a misappropriation of trade secrets case that I recently handled, I knew nothing about the technology or even about what electrical engineers?the main wit?

nesses?really did. When I spoke with my client's engineer? ing employees about the technology, they practically dis?

missed my ability ever to comprehend their work or the

complexities of the product. Their explanations were uninfor? mative and lazy; they figured I would never understand any? way. Although they were relatively liberated men, the fact is that they had not encountered many women in their profes? sion, and they were somewhat dismayed at having a woman

lawyer handle this important case for their company. I noticed that they were more forthcoming with the male attorneys working under me, even though their technical background was as nonexistent as my own.

Nevertheless, I persevered. I studied the information. I talked with our expert. I dragged information out of the engineers.

Perceived competence can be the turning point in communicating across the gender gap.

Once I moved up the learning curve, I was able to ask intelli?

gent (or at least semi-intelligent) questions of these same engi? neers. Judging from the impressed looks on their faces, I defi?

nitely was benefiting at that point from the contrast effect. They believed I knew more than I really did; of course, I did nothing to disabuse them of that belief. They more readily explained things to me in greater detail?which, in turn, substantially increased my understanding. They began to have real confi? dence in me, our case, and our chances of success. One of the

engineers even said he would like to hire me to work on his

engineering staff (somewhat tongue in cheek). To sway a jury to your side, you must demonstrate not only

that you are competent but that you are trustworthy, too. Studies have shown that jurors are more likely to find trust?

worthy a lawyer whom they like. What jurors like in a male

attorney is usually different from what they like in a female

attorney. Jurors seem to require more niceness from a woman. As a result, women trial lawyers are more restricted in the techniques of persuasion they may effectively use in the courtroom. While juries may accept?and even expect?

male trial lawyers to use attention-getting techniques such as

staging dramatic moments, shouting, or using sarcasm, this same behavior is frowned upon in women litigators. If women litigators use these techniques, they are branded as strident or, worse yet, labeled with "the b word." Yet, if women are not aggressive enough, they risk appearing under confident or not forceful as advocates. Women lawyers have a fine line to tread.




Moreover, women jurors do not necessarily gravitate toward or like women lawyers?in fact, women jurors more often will have a negative reaction toward women lawyers. A mock trial in which I was involved presents an interesting illustration of this unfortunate fact. This was a products lia?

bility case that involved very technical issues relating to how the product in issue functioned mechanically. One of the trial teams was composed of a male attorney and a female attorney. The female attorney carefully and articulately described how the product functioned, using analogies of everyday items that

would clarify how the product worked and that would ulti?

mately demonstrate why a particular aspect of the product had failed. The male attorney simply referred to the ultimate rea? son that the product had failed.

A woman juror was elected foreperson in the mock jury room. When the jury began deliberating the case, the

foreperson showed a palpable dislike for the female attor?

ney. One of her complaints regarded how the female attor?

ney had talked down to the jury by painstakingly describing the process by which the product operated. Although she

approvingly discussed the male attorney's argument refer?

ring to the product malfunction, when another juror ques? tioned how he had arrived at the conclusion, the foreperson actually adopted one of the examples that the female attor?

ney had used in her presentation (without giving the female

attorney credit for the example).

Dealing with Resentment This vignette is very interesting in terms of the gender gap.

The foreperson's complaint about being talked down to in connection with a detailed description designed to clarify a rather technical matter was a somewhat unusual complaint for a female juror. Communication principles counsel that women appreciate such a contextual discussion of an issue. Given that imitation is the sincerest form of flattery, this juror did in fact appreciate the manner in which the woman attor?

ney explained this technical issue; the juror adopted a portion of that explanation as her own. Rather than being perturbed by the way that the female attorney communicated her point, the

foreperson was more likely perturbed by the female attorney herself. The juror profile submitted prior to the mock trial exercise indicated that this woman held a rather low-level

managerial job seemingly without much hope of advance? ment. Seeing a powerful female attorney before her made her react negatively. Why should the attorney have all the power and be able to act so smart when the juror is just as smart but is stuck in a go-nowhere situation?

Fortunately for the female attorney in the above example, her ability to communicate effectively on the issue cut

through the foreperson's dislike for her personally. We may not all be so lucky. Although being likable is also an issue for men, women seem to have a harder row to hoe on this one,

especially with female jurors. One way a woman lawyer can

attempt to ensure that women jurors like her more than a male

attorney opponent is by attempting to ensure that such jurors perceive similarities between the lawyer and themselves? similarities of attitudes, beliefs, and values. The best way to

get a leg up on this process is during voir dire. After studying the information that you have on each of the jurors, especially the women, be sure to ask them questions that show that you identify with their values and lives. If you are questioning a

stay-at-home mom, ask her about things that demonstrate that

you value work inside the home and a family-oriented lifestyle. For instance, you might say, "Mrs. Jones, you will hear that at the time of the incident my client was trying to do two things at once. With three small children and a household to run, I'm sure you appreciate the necessity of multitasking, correct?" If that stay-at-home mom ends up on your jury, use

examples in questions and argument relating to parenting and children. The same strategy would assist a male attorney in

endearing himself to this hypothetical juror as well. Communication is a means to an end. The end for the lit?

igator is to get the best result for his or her client. Whether that end is achieved from an aggressive, hierarchical means of communication or from a more consensus-oriented rela?

tionship-based method really does not matter. What does matter is being able to recognize how your means of com? munication may be impacting someone of the opposite sex, whether the listener is your opposing counsel, a juror, or a client. You should consider how the listener hears your words because being heard and understood is what makes you effective. Using techniques that bridge the gender gap will help make you a persuasive communicator.

What does this mean in the highly charged atmosphere of the courtroom, in which the lawyers' communications are constrained by procedures, professional codes, and other restrictions imposed by the law? After all, there is a profes? sional language that lawyers use, male or female, right?

Yes and no. Although the courtroom is not a setting in which conversation occurs, it is a setting where we seek, above all, to persuade. As men and women, we seek to per? suade the men and women of the jury as well as the man or woman in the black robe. "Know your audience" is long? standing advice to any orator. In the courtroom, your audi? ence members come with the communication biases that are

peculiar to their sex. To persuade those fact-finders, you will want to use every tool at your disposal, including the most effective communication techniques that take gender into consideration.

Awareness of the gender gap in communication styles allows you to consider and plan your method of communi?

cating your case to male and female jurors?who are listen?

ing to you as a male or female communicator. Moreover, understanding the likely communication styles of your jurors helps you to provide them with the information and

arguments they need in the jury room to sway any dissenters to your side of the case.

My colleagues and I were called upon to navigate these issues in representing the individual defendant in a sexual harassment case. Sexual harassment cases are often he

said/she said situations; they boil down to the plaintiff's word

against the defendant's word. This was just such a case. In

preparing our client for his deposition, we were discussing the inherent swearing match involved in the case and exploring

what circumstantial evidence existed to buttress our client's version of the facts.

Our client said, "You know, you haven't had the chance to see her yet. I don't mean to sound conceited, but when you look at me and then get a look at her, it is clear that I would never make a move on her." Indeed, this client was not an

overtly conceited person, and he made this suggestion in all seriousness. To him it seemed perfectly logical to argue that

he, an attractive male, would not have any need or desire to seek sexual favors from an unattractive female, the plaintiff.




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This type of logic would never fly with the women on a

jury?although it is possible that it would persuade certain men on the jury. I do not say out of idle surmise that certain men would accept this reasoning; to the contrary, I have had actual experience with other male defendants who have posed this same defense and male witnesses who have concurred with this precise reasoning. Even if this theory were to work as a way of communicating to certain men the innocence of the defendant, it would undoubtedly fail to convince, and would likely offend, the women on the jury. Consequently, we

explained to our client that it would be an enormous mistake to make this argument in the courtroom.

Despite our attempts to explain why this would not work, our client again raised this theory as a legitimate approach several times as the case progressed. We finally were able to

satisfy our client by pointing out that if there were people on the jury who would buy into this reasoning, they would likely arrive at it themselves by observing the plaintiff and him on the stand. We did not need to articulate this reasoning out loud in the courtroom.

Because sexual harassment cases are by their very nature

all about relations between the sexes, this example is infused with gender-related issues in addition to the communication

gap. Nevertheless, the incident most certainly also illustrates the male approach to solving a problem. Our client applied distanced logic and hierarchical reasoning. His superior level of attractiveness indicated he had nothing to gain by pursuing a woman who was lower on the attractiveness scale. More? over, there is some logic to the notion that sexual advances and physical attractiveness (or lack thereof) are related.

Rather than focusing on the hierarchy of physical attrac?

tiveness, women would likely key in subjectively on the sit? uation as a whole. They would see a man and a woman

working long hours without much other companionship. They would view the accusations in the context of the soci?

ety at large. They would consider this one instance of a per? sistent problem that needs to be stopped. For them, the case could thus reach well beyond this defendant and this plain? tiff. The female would think, "Who cares how attractive each party may or may not be," and would view the presen? tation of such circumstantial evidence as an irrelevant and

(Please turn to page 67)




client's case in the eyes of the jury, or whether to move for a mistrial if an

objection is sustained. If you decide not to object, and later think you should have, at the very least file a motion for a new trial (if that is what you want). As

always, know the law in your jurisdic? tion, and know your judge.

In either case?to prepare to try your own case effectively and ethi?

cally, and to prevent your opponent from trampling on your client's

rights?you must learn the rules about what trial counsel may not say to the

jury. If your client should win on the evidence, you should not risk a loss based on matters outside the record that you drag into the case or that you let your opponent get past you. 10

Bridging

Gender Gap (Continued from page 35)

arrogant diversion. The impact of these disparate per?

spectives can be observed most readily in the context of settlement negotia? tions. Women have natural skills that are useful in negotiation. They tend to be effective listeners, are less concerned with who gets the credit in a cooperative resolution, and (contrary to some con? ventional wisdom) can keep their cool when being baited. Thus, these findings counsel, and experience confirms, that women negotiating with women adopt a

cooperative problem-solving approach to the issues. Men have a more dominating ap?

proach to negotiations. They tend to

jockey for position; they refer to win?

ning a mediation. When negotiating with a woman, contrary to the myth that women talk too much, men actu?

ally do more of the talking. They will

interrupt women, in the sense of seiz?

ing the floor, more often than women will interrupt them. Moreover, men often succeed in focusing the conver? sation on topics they introduce.

Some mediators have said that when women negotiate with men, they take a more competitive approach than they would in negotiating with other women. In order to engage their male adversary, they seem to adopt his style of commu? nication. Likewise, men's negotiation styles change when they are negotiating with women. Men understand that women typically prefer cooperation. Men trade on that characteristic to gain an advantage and will often talk down to the woman in an attempt to get her to submit. Women, in turn, can capitalize on a man's need to score points by con?

ceding on issues that really are not

important to the client. All in all, negotiations between a

man and a woman can result in an

interesting dance. The participants would trample less on each other's feet if they focused more on their counter?

part's communication style while

engaging in the process. Regardless of your position on the

issue of gender's relationship to power, you would be well served to reflect on communication successes and gaffes that may have been caused, at least in

part, by gender. Knowledge is power; using what you know and can learn about gender's effect on communica? tion should make you a more effective advocate. 10

Trial

Notebook

(Continued from page 54) ? Subsequent Remedial Measures

Like insurance, subsequent reme? dial measures are not admissible to show culpable conduct. But they are admissible to show ownership, con?

trol, or the feasibility of remedial mea? sures?if controverted?or to impeach a witness.

? Offers to Compromise Offers to compromise are generally

not admissible to prove liability. But

they are admissible to show bias or prej? udice of a witness or to rebut a claim of undue delay.

? Join Another Party

Adding parties to the case turns what

they said or did into admissions when the parties are adverse to the proponent of the evidence at trial. Of course these admissions are typically not admissible

against the other parties, a problem that is cured with the miracle of the limiting instruction.

? Change the Case

Sue a trucking company for its

employee's reckless driving, and the truck driver's bad driving record is inad?

missible to show he was negligent. But, sue the trucking company for entrusting the driver with a dangerous instrumen?

tality?that big truck he drove into the

plaintiff?and the driver's record is admissible to show what the employer knew or should have known about its

employee. ? Evidence That Refreshed Recollection

Always ask to see whatever was used to refresh a witness's recollection. If it




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COMMUNICATION || Bridging the Gender Gap