By Nancy Hoffman, PsyD
fpamed Forensic Psychologist

The power I exert on the court depends on the power of my arguments, not on my gender.
– Justice Sandra Day O’Connor

Historically, medicine and the law have been typically dominated by men, creating the possibility of gender bias in the courtroom. Therefore, women’s presentation style is as important as one of the underlying assumptions in gender bias that women may be perceived as having less authority than men. And the perception of an expert may influence juror decision-making.

In The Authority Gap, Mary Ann Sieghart talks about the relationship between gender norms and social roles and the way they influence our perception of how men and women should behave.  She says the “authority gap” shows how as a culture we tend to take men more seriously than women. As she writes, “Research shows that we still expect women to be less expert than men. Most of us – men and women – are still less willing to be influenced by a woman’s views. And we still resist the idea of women having authority over us. In other words, there is still an authority gap between women and men.”

So, what can women do to close that gap in the courtroom?

While knowledge of a subject is important in choosing an expert, research suggests that knowledge itself does not translate into the perception of credibility and authority for jurors. The Witness Credibility Model (WCM) by Brodsky, Griffin & Cramer (2010) is an empirically designed model that conceptualizes witness credibility on a four-factor scale: likeability, confidence, knowledge, and trustworthiness. Credibility refers to the trustworthiness and authority of the testifying witness.

Clearly, being a credible and effective expert witness is not just about credentials and experience. According to Clint Townsend PhD, a jury consultant and strategist, “Jurors rely on their opinion of the expert rather than the expert’s opinion.” So how does an expert convey credibility to the trier of fact?

Demonstrated knowledge depends on persuasive and successful communication. So one way that women can exercise authority in the courtroom is by using powerful language to foster credibility with jurors.  How an expert says something is just as important as what they are saying. According to Champagne et al (1991), jurors prefer experts who can make specialized information understandable to the layperson by communicating in simple, jargon-free language.

Alison Fragale, a professor of Organizational Behavior at UNC Kenan-Flagler, says people develop opinions about a person by the way they speak. Communication behaviors can be subtle, but powerful. Through her research, she has found that powerless speech also includes linguistic features. Examples include “tag questions” that seek buy-in from the audience, such as “Don’t you think?” or “Isn’t it?”; hedges that suggest you are not completely sure of the statement you are making, such as “sort of” or “maybe”; disclaimers such as “This may be a bad idea but…”; emphatic adjectives that overemphasize speech, such as “Fantastic!”; filler speech such as “uh…” “I was like…”; and formal addresses such as “No, sir” or “Yes, ma’am.” Hosman (1989) defined powerless language as speech that is “marked by hesitancy and tentativeness.” Hesitation language includes utterances such as “well” or “um.” Powerless speech can also be characterized by a rising intonation at the end of a statement that makes the statement sound more like a question. A powerless speech style tends to lead to the perception that the speaker is less competent or confident and is ultimately less persuasive to a jury.

Powerful speech is marked by the absence of these powerless speech patterns. Kathy Kellerman, a jury consultant, writes, “Jurors hearing the powerful speech testimony rated the witness as more believable, convincing, competent, trustworthy and intelligent as compared to the same testimony using a powerless style.” Therefore, linguistic style, or how something is said, is crucial to being a persuasive witness. Linguistic style includes factors such as rate of speech; intensity of language; complexity; and directness.

Clarity of presentation is important, so it is not surprising that the best experts are also the best teachers. The research shows that jurors find the testimony of experts to be convincing when the expert uses language that is understandable to the layperson.

Economy of language is also important. Being able to make your point succinctly and in language the layperson can understand is critical in the courtroom. Learn to use as few words as possible to make your point. It goes without saying that obscenities have no place in a courtroom. Avoiding jargon and being able to explain a complicated concept in everyday language is important in keeping the attention of the jury.

Before you testify, think about your message and the language you want to use to communicate that message clearly and credibly. Understanding your role in the courtroom and learning how to use language strategically can result in being a more persuasive expert witness, regardless of gender.

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References

Blankenship, K.L., and Holtgraves, T. (2005). The Role of Different Markers of Linguistic Powerlessness in Persuasion, in Journal of Language and Social Psychology, Vol. 24 No. 1, March 2005.

Champagne A, Shuman D, Whitaker E., (1991). An empirical examination of the use of expert witnesses in American courts. In Jurimetrics J 31:375–92.

Jones, M.A., & Neal, T. (2014). Women as Expert Witnesses, in The Jury Expert, Volume 26, Issue 2.

Kellerman, K. (2011) Retrieved online February 27, 2023: https://kkcomcon.com/OJRU/ROJR0611-2.htm

McKimmie, B. M., Schuller, R.A., Thomas, S., & Sherrel, H. (2019). The Impact of Gender-Role Congruence on the Persuasiveness of Expert Testimony, in University of Queensland Law Journal, Vol. 8, Issue 2 (2019).

Sieghart, M.A. (2021). The Authority Gap: Why Women Are Still Taken Less Seriously Than Men, and What We Can Do About It. Doubleday.