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woman expert witnessFemale attorneys know they a special challenge to being accepted as authoritative, just because they are women. Looks like things are about the same for expert witnesses who are women. A new literature review just published by Tess M.S. Neal in Behavioral Sciences and the Law offers a succinct picture of what the research has found over the years. This is an article well worth reading and we are only going to cover the main effect summary findings. There are few rays of sunshine in this research but it’s important information to know (and we bet Tess Neal will be around doing good work for some time to come).  

Neal first discusses stereotypes and gender roles and looking at the historical (and unfortunately current) reality that men are expected to be leaders and logical while women are expected to be more emotional followers. Research as recent as 2009 shows we still value what we continue to define as masculine characteristics (e.g., competence, assertion, rationality) above those characteristics defined as feminine (e.g., warmth and expressiveness).

She reviews research findings on the gender of experts, finding women experts twice as likely as men to believe gender is a factor in the selection of an expert witness. Women experts report being sometimes told explicitly that the hiring attorney thought their gender would help the case (e.g., being a female expert in a sexual harassment or sexual assault case). Another study found 55% of female attorneys but only 13% of male attorneys thought judges assigned more credibility to male experts than to female experts. A 1994 study showed women made up only 11% of experts identified in written court opinions, and testifying in 21% of cases overall. The good news was the number increased over time (and Neal points out that trend has likely continued since 1994). And then she summarizes the research on the gender of the expert witness. Here are the highlights of only the main effects findings:

Male experts are rated as more likable, believable, trustworthy, confident, and credible than female experts in a 2010 study. (Yes. 2010–aka, yesterday.)

Expert gender (when the expert was an automotive engineer) made no difference in terms of verdict in a civil case involving an auto accident. However, female experts elicited higher compensatory damages than did the male experts in a 2002 study.

A 1984 study tentatively suggested that female experts might be preferred over male experts when the testimony concerned opinions about child custody. The researchers think research participants could think (due to gender role stereotypes) that women would be better judges of what children need than would men.

There is much more covered in this article. Neal examines the importance of context (what is the gender “domain” of the case, how complex is the information the expert must convey, when is the expert giving testimony in the overall case presentation, and will the experts violate expectations for behavior of men or women). The author of the 1994 study cited earlier observed that women were more likely to be testifying in disputes that had a “human” face–like education, family court or social services. Women accounted for only 4% of experts in corporate cases and 0% of those in contract disputes (again, in 1994). However, the traditional division of labor still seems to be in force in the more recent research Neal reviews.

Finally, she makes recommendations for both experts and attorneys hiring experts, based on the findings in the literature.

Consider if the case revolves around a traditionally male or traditionally female domain. Either gender may have an edge if the conflict is in their domain.

Consider whether the testimony is complex, because jurors may grant men an advantage. When testimony is not complex, women may have an advantage.

Competence is important for both men and women witnesses, but paying attention to gender role expectations may also matter. A 2008 study showed male witnesses were seen as more credible if they maintained high levels of eye contact with the questioner (“assertive eye contact”) but women’s eye contact with the questioner did not matter in terms of their credibility.

Being likable is more important for women experts than for men (according to 2009 and 2012 findings). She recommends the use of informal speech, explaining key terms, using the Plaintiff or Defendant’s name rather than referring to them as either the plaintiff or the defendant, among other things.

Overall, Neal says there are indeed gender differences in how male and female experts are perceived but those differences tend to be relatively small and largely determined by context. So, a little good news and a fair amount of what female expert witnesses likely already knew. Times are changing, albeit slowly. What was a major obstacle documented in 1994 now appears to be a lower barrier.

Neal TMS (2014). Women as Expert Witnesses: A Review of the Literature. Behavioral Sciences & the Law PMID: 24623554



anti semiteRecently, we were doing a mock trial and came to the part of the day when jurors were discussing impressions of the witnesses. One of the female jurors mentioned a witness seemed “depressed and beat down” and that she had been surprised by his demeanor. An older white male snorted and said, “Surprised? You’ve never been to New York City. I guarantee you, one in three business men in New York City look just like him.” The woman expressed confusion, and the man expounded further, “He’s a Jew….Now I don’t mean nothin’ bad by that.” 

There was a silence in the room for a few seconds and the young Hispanic male seated next to the man speaking leaned back in his chair and looked at the observation mirror/window in disbelief. The older white male seemed a little confused by the silence in the room and then added less forcefully, “I’m not against the Jews.” The facilitator gently stated that while the mock juror may not “mean anything negative”, he was certainly voicing negative stereotypes. The juror seemed confused (mumbling his way out of the unintended disclosure and falling silent) and the facilitator moved on with the debriefing.

Sometimes people have no filter, so they say what they are thinking without realizing how offensive it might be to others in the room. Over the years, we have seen many examples of this. Another example that comes to mind today was when an older white female commented in a group also containing young African-American and Hispanic jurors that “those Mexicans will do whatever you tell them to do”. She was gently corrected by an older African-American male and no one else spoke up. But during the next break, the group of young mock jurors who were African-American and Hispanic lagged behind and when the rest had cleared the room, they burst out laughing. They all spoke at once: “Oh no she didn’t!” and “Can you believe that?” and “I just moved here from California and I cannot believe what some people here say out loud”. This was a gracious group of jurors.

More often, bias is spoken about in code and no one says exactly what they mean. One code we’ve learned here in Texas is that random references to people from “New York City” is code for some anti-Semitic sentiment. Bias, in many forms and guises, is crucial to discern. And oddly, it is at its most insidious when the bias is completely irrelevant to the facts of the case.



THE BIG BANG THEORYLawyers are often taken aback when they hear mock jurors discussing their case and demonstrating little understanding of what was actually presented in evidence. We tend to see that emotional reaction go hand in hand with the excess consumption of peanut M&Ms. The more distorted the mock juror’s understanding of the evidence, the more the supply of peanut M&Ms in the room dwindles and the more attorneys pace back and forth and talk with their mouths full. 

My Dad was a pilot stationed in Italy during WWII, and enjoyed telling a story about a guy in his flight group who somehow thought that if he spoke English slowly and LOUDLY, the Italians (who spoke not a word of English) would understand him. The fact that it never worked didn’t make a difference to him. He blamed the Italians for not getting it. As smart as our readers are, I’m thinking that you know where this is heading…

It’s probably a good thing that the National Science Foundation surveys the American public routinely to see what we really know. And it’s probably a good thing for you to read it and understand how to gauge the appropriate level at which to present your case.

80% of Americans say they are interested in “new scientific discoveries”: That’s quite a lot of us. We would guess that while many are “interested”, few really bother to understand or seek out specifics beyond the headlines.

It’s the internet, not TV (and certainly NOT print media although online versions of newspapers are popular): First off, most people’s information about science and technology comes from the internet (40%, up from about 33% in 2010) and then TV. We are all familiar with the ever-present use of smart phones to look up a term or clarify our understanding, or see when our favorite reality show is showing reruns. A significant proportion still get their science and technology information from TV viewing, though. So what are they watching on TV or streaming on the internet? Bill O’Reilly, Jon Stewart, the Discovery Channel, or $10M Bigfoot Bounty? It would likely be to your benefit to know.

Zoos, aquariums, and museums: The majority of Americans say they visited a zoo, aquarium or museum in 2012 but attendance is down at zoos and aquariums. Science museums tend to be visited by those with higher income and education.

Americans scored 64% on a science factual quiz in 2012: And this is similar to our scores in previous years. Surprisingly, perhaps, Europeans score at about the same level as Americans. Questions posed had to do with evolution, the big bang theory, whether the sun revolves around the Earth or the Earth revolves around the sun, and so on. Yes, there is a big faction in our country that believes the Biblical account of creation dates the Earth to about 6,000 years, but they remain familiar with more scientifically validated ‘truths’.

We can answer a little on research design but are uncertain of specifics: Most Americans could answer two multiple-choice questions about probability but had trouble describing why one would need a control group in scientific experimentation. There was also difficulty in describing what makes an activity “scientific”.

And the list goes on and on. Americans are divided on climate change. Our support for oil and nuclear energy has rebounded. We have trouble identifying just which occupations are “scientific” and we have difficulty distinguishing science from pseudoscience. We’re not particularly concerned about genetically modified food stuffs compared to other countries. We see using stem cells from human embryos in medical research as “morally acceptable”.

We have an obligation to understand what language our jurors speak. If they don’t understand you, being loud or repetitious isn’t going to help you in court any more than it helped my father’s friend in Italy. If you know the limits of their knowledge, you can present the evidence in a way that teaches, not merely in a way that  justifies argument.

We work on a great deal of patent litigation, sometimes on software code or scientific processes that not even the lawyers for the parties truly understand. The judge doesn’t understand it. Certainly the jurors don’t. But a version of this densely scientific material can be taught. Understanding and patient testimony from an expert can reassure jurors that this witness can be trusted, and that this person will help them find their way through this strange wilderness of code, formulas, or physics.

Would trials be better if they were more like peer-review panels? Arguably, Markman hearings, rulings on motions in limine, and summary judgment decisions already get pretty close to that situation. We find that leaving the balance of the judging to actual citizen jurors usually has them finding a just verdict.

It’s worth a look at the overview of findings and the entire report itself. The results are sometimes surprising and other times disturbing. It’s information you can use to understand the level of knowledge to expect from your audience at trial.

National Science Board. 2014. Science and Engineering Indicators 2014. Arlington VA: National Science Foundation (NSB 14-01).







Amazingly, a study published in a highly respected medical journal (as opposed to, say, a Bigfoot site) found that 49% of those living in the United States believe at least one medical conspiracy theory. That’s only where it starts–18% believe in three or more. Wow. 

The researchers wondered if US residents believe the public health conspiracies that have flourished over the past 50 years (over issues such as “water fluoridation, vaccines, cell phones and alternative medicine”). A “nationally representative, online survey sample of 1,351 adults” was gathered in 2013 by a market research company (YouGov). Here are the conspiracies about which they surveyed:

The Food and Drug Administration is deliberately preventing the public from getting natural cures for cancer and other diseases because of pressure from drug companies. [63% had heard of this theory and 37% believe it.]

Health officials know that cell phones cause cancer but are doing nothing to stop it because large corporations won’t let them. [57% had heard it and 20% believe it.]

The CIA deliberately infected large numbers of African Americans with HIV under the guise of a hepatitis inoculation program. [32% had heard it and 12% believe it.]

The global dissemination of genetically modified foods by Monsanto Inc is part of a secret program, called Agenda 21, launched by the Rockefeller and Ford Foundations to shrink the world’s population. [19% had heard it and 12% believe it.]

Doctors and the government still want to vaccinate children even though they know these vaccines cause autism and other psychological disorders. [69% had heard it and 20% believe it.]

Public water fluoridation is really just a secret way for chemical companies to dump the dangerous byproducts of phosphate mines into the environment. [25% had heard it and 12% believe it.]

Overall, 49% of the nationally representative sample endorsed 1 conspiracy theory and 18% endorsed a belief in at least 3 of the proffered theories. The authors say if you believe in either 0, 1 or 2 of these conspiracies you would be considered a “low conspiracist” and if you believe in 3 or more of these conspiracies they would consider you a “high conspiracist”. Okay. We might categorize them a little differently but certainly agree that the more conspiracy theories you agree with, the more extreme your behaviors. Right?

But these skeptical citizens don’t display extreme conspiracy-nut behaviors when you consider their beliefs about public health conspiracies. “High conspiracists”, according to this research, are simply more likely to buy farm stand or organic foods and use herbal supplements, and are less likely to use sunscreen, get flu shots or have annual checkups with a medical doctor. The authors conclude we should look at people who believe in conspiracy theories as “otherwise normal”.

“Although it is common to disparage adherents of conspiracy theories as a delusional fringe of paranoid cranks, our data suggest that medical conspiracy theories are widely known, broadly endorsed, and highly predictive of many common health behaviors. Rather than viewing medical conspiracism as indicative of a psychopathological condition, we can recognize that most individuals who endorse these narratives are otherwise ‘normal’ and that conspiracism arises from common attribution processes.”

Recently we published information on how much Americans (and Europeans for that matter) really do know about science and technology. Viewed through that lens, this report about broad-based beliefs in public health conspiracies is not surprising. But knowing that in a venire of 50 prospective jurors there are, on average, 9 (18%) who are reluctant to believe government reports or studies related to life-and-death issues needs to be considered by anyone relying on government data. Your experts may be starting out in a very deep credibility hole with a lot of your finders of facts.

Oliver JE, & Wood T (2014). Medical Conspiracy Theories and Health Behaviors in the United States. JAMA internal medicine PMID: 24638266



avoid generational stereotypesWe’ve written about this a lot both here on the blog and over at The Jury Expert. So it isn’t news to us, but evidently it continues to surprise experts in other fields. Business journals are still urging differing management strategies for members of different generations in the workplace. But, as in other research, today’s authors find their data does not support this popular recommendation. So we offer this research review in the hope that someone will bring it with them to work. Here we go again…

Researchers wanted to test three generational stereotypes in the workplace to see if data would support common assumptions. Specifically, they examined:

Whether Baby Boomers change jobs less often than Gen X or Millennials (“job mobility”);

Whether Baby Boomers comply more with workplace rules than do Gen X or Millennials (“compliance with work rules”), and

Whether Gen X members are either less motivated or lazy, thus less likely to work overtime than either Baby Boomers or Millennials (“willingness to work overtime”).

These are all common stereotypes (i.e., younger employees job hop, they do not comply with rules, and are unwilling to pull their weight if it’s inconvenient) and, stereotypes often exist for a reason. Sometimes it is due to facts. Other times it is due to the holder of the viewpoint being kinda grumpy and annoyed with the subgroup in question. But, other times, stereotypes simply do not accurately describe the nuances, or even the reality of situations.

The researchers used a huge sample of 8,128 people who applied for jobs at two different hospitals located in the southeastern United States. The sample was composed of Baby Boomers (N = 1,641, 20.2%), GenXers (4,972, 61.2%), and Millennials (1,515, 18.6%). On average, Boomers were 48.5 years old, GenXers were 30.8 years old and the Millennials were 21.5 years old (these are tilted toward the younger end in all 3 groups). The group was racially heterogeneous with 301 Native Americans (3.7%), 116 Asian/Pacific Islanders (1.4%), 237 Hispanics (2.9%), 3,955 African-Americans (48.7%) and 3,211 Caucasians (39.5%). A total of 308 (3.8%) did not disclose race. The sample was 83.2% female, 15.8% male and 1% did not disclose their gender. So, although each of these demographic cells is large enough for meaningful interpretation, the profile doesn’t perfectly match the national profile or the workforce. Asian and Hispanic participants are under-represented, African-Americans are over-represented, and it is a much more a female sample than a male sample. But with that said, a study this big allows for skewing like that without sacrificing validity.

As part of their application process, participants were required to complete a questionnaire on their historical workplace behaviors, and researchers used this data to identify their findings.

This research, unlike most prior research on generations at work, focused on historical job behaviors self-reported by the applicants (as opposed to a self-report of individual attitudes and values). While there were differences in the three areas assessed, the differences were small. The authors caution readers to understand that the typical recommendation to apply different management strategies to each separate generation in your workplace is likely not a good use of funds for improving your particular workplace. In other words, this study (of more than 8,000 people) did not support the idea that you should practice different management strategies for employees from different generations–the differences found were just too small statistically.

Here is what the researchers found about the common generalizations held about the various generations in the workplace.

Job mobility: Boomers actually do stay in jobs longer than GenXers and Millennials and it isn’t just that they are older and no longer moving about for their careers. On average, Boomers stayed at a job a bit more than 2 years longer than GenXers, and 4 years longer than Millennials.

Compliance with workplace rules: Older employees do have a slight tendency to adhere more to workplace rules concerning attendance and appearance. They also have less experience with having been fired (or quitting in lieu of being fired). However, this difference was not so much about generation per se as it was about age since individuals in all generations tended to comply more with workplace rules as they get older (and presumably matured).

GenXers will work less overtime: This one is also actually true (and we’ve written about how GenXers are actually living out their values). GenXers were less likely to work overtime than Boomers and Millennials. (There was no difference between the Boomers and Millennials in terms of a history of working overtime hours.)

The researchers emphasize that the differences in the target workplace behaviors don’t warrant different management strategies for different age groups. The differences are simply too small statistically. Instead, the researchers recommend that HR representatives build in flexibility to HR practices and strategies to address the needs of all employees rather than a single generational group. It’s what consultants often say when they are training managers about the Americans with Disabilities Act (ADA). Good management is good management. You don’t tailor based on generation. You manage based on the individual and the demands of the job.

It bears repeating: Good management is good management. Stereotypes are not good management, even when well-intentioned.

Becton, J., Walker, H., & Jones-Farmer, A. (2014). Generational differences in workplace behavior Journal of Applied Social Psychology, 44 (3), 175-189 DOI: 10.1111/jasp.12208