Who Decides Gender of an Expert Witness? Women Up Their Game.

“Who Chooses an Expert Witness? Is Gender a Factor?

The “selectors” of expert witnesses are attorneys, both male and female. Attorneys do the choosing, but in a bench trial, judges consider Expert Witness testimony. Less data exists about juries than judges, but make no mistake, a jury without a woman is like a fish without a bicycle.

Are Decision-Makers Sexist? Maybe Not.

The focus of this article is whether the gender of the Expert Witness factors into a decision to retain her.

Trial Strategy Dictates Expert Witness Choices

The consideration of an Expert Witness usually begins with the trial attorney’s strategy whose natural conclusion is “what will the trier of fact think?”

Winning the case is the goal and the female Expert Witness may bring to the table a unique impact on the outcome if we are taking only gender into consideration. Be mindful that winning is the attorney’s goal. It is irrelevant to the actual opinion rendered by the Expert Witness of any gender.

I rely on data as much as possible in this discussion. I address both retaining party (attorneys and courts) and the Expert Witness herself. I use as an exemplar Forensic Psychiatrists and Psychologists as I found more data.

Medical Specialists

A female  physician in any specialty who is performing medical-legal work will find much to ponder here, especially regarding attorney and trier of fact gender make up.   

Are lawyers sexist towards other lawyers?

Yes. With a change on the horizon. 

According to the American Bar Association,

“82% of [senior-higher level] women have been mistaken for a lower-level employee.” Leibenberg, Scharf, et al.[1]

Gender of Lawyers, leadership and ranks. Let’s take a closer look, however, at lawyers themselves.

Bear in mind, nominations to the bench begin with a lawyer, and trends may well impact gender representation among triers of fact in the future.

Women represent 38% of lawyers (2022). (American Bar Association) [2]

23% were equity partners (the decision-makers about Expert Witnesses). [3]

Coming up the ranks:

55% of law students are women (2022)

But here’s what counts:

Trier of Fact

“…the percentage of female justices nationwide has also increased from 39 to 41 percent” [4]

Arguably, women judges are no more likely, or less likely, to apply sexist attitudes to the gender of the Expert Witness. I believe those who struggle to overcome sexist attitudes are less likely to embrace them. It is a personal opinion supported by experience and critical analysis.

Juries

Juries are not widely studied, so their attitudes towards gender in an Expert Witness is not documented. We can however speculate based on social norms. A jury pool reflects registered voters selected at random. There is no reason to suspect a random sampling of registered voters is more or less likely to hold an outlier opinion of women.

We have seen an increase in Women in many fields in the last 50 years. Clearly sexism is not stopping women from pursuing a professional goal and advancing in that profession.

Why would women be paid less than men if their gender is a “positive” (assuming credibility and expertise are appropriate)? 

About 70% of psychologists are women and 57% of psychiatrists are women. Still:

“An astonishing 80 percent of expert witnesses chosen by attorneys are male, and those male experts get paid on average 60 percent more…” (Bloomberg research. 2017)”[5]

Judge Shira Scheindlin, 22 years on the federal bench, recalls female experts, in all fields: “maybe a psychologist or two.” [6]

If sexism, internalized or externalized, is interfering with the best representation the attorney can give their client, they are breaching their highest ethical duty.

Building a Forensic Practice as a Women Expert Witness: What Can You Do?

Women who challenge attorney sexism, have a better chance of enlarging their forensic practice than those that ignore it.

You can introduce an alternate reality, perhaps a truer reality. Is gender relevant to a jury? Are there cases when a woman expert witness is preferable? Bring attorneys on board by making this point. It can help women get expert witness work, and close the money gap.

We know that humans attribute women and men with different characteristics about trustworthiness, sympathy, how we respond to a style of communication, and, yes again: credibility about the subject at hand.

Write about it, speak about it, apply it to med-legal issues. Attorneys respond when they understand how to make their cases strong.

[1] Leibenberg, Robert D. and Scharf, Stepanie. Walking Out The Door, The Facts, Figures and Future of Experienced Women Lawyers in Private Practice.  American Bar Association. Page 7. Online publication, 2019. https://www.americanbar.org/content/dam/aba/administrative/women/walking-out-the-door-4920053.pdf. 

[2] American Bar Association. “Women in the Legal Profession” (2022). “Demographics…in 2022, 38% of all lawyers were women.” https://www.abalegalprofile.com/women.php

[3] American Bar Association, Female Lawers still underrepresented, especially in partnership ranks; which law firms do best. “About 23% of equity partners in U.S. law firms are women, even though women have made up at least 40% of U.S. law students for decades, according to a Glass Ceiling Report by Law360.” https://www.abajournal.com/news/article/female-lawyers-still-underrepresented-especially-in-partnership-ranks-which-law-firms-do-best

[4] Brennan Center, “State Supreme Court Diversity – May 2022 Update” (2022) includes statistics about attorneys and justices in general in 2021 and 2022.  https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-may-2022-update

[5] Kaufman, B. Gender gap for female experts won’t be easily narrowed. Bloomberg Law (2017)  https://news.bloombergtax.com/us-law-week/gender-gap-for-female-experts-wont-be-easily-narrowed-1?context=search&index=8

[6] Kaufman, Bruce, “Attorneys Faulted for Scarcity of Female Expert Witnesses,” (2017) Online, Bloomberg Law, Litigation (August 28, 2017), https://news.bloomberglaw.com/product-liability-and-toxics-law/attorneys-faulted-for-scarcity-of-female-expert-witnesses 

Comment: Surveys that break-out forensic practice from general clinical practice barely exist, let alone the percentage by gender. Let’s speculate the unlikely: all data applies to men and women equally. In 2007, among psychologists, about 72 percent of new PhD and PsyDs entering psychology were women (APA’s Center for Psychology Workforce Analysis and Research.) This is consistent with the US Bureau of Labor Statistics finding 9 years later that 67.5% of psychologists were women (2016). Given in all professional fields requiring higher education, the population of women has consistently grown over time. This would suggest female psychologists who have acquired additional forensic training are a younger population than men in the same field. Younger generally means less experience, and therefore less desirable as experts. Less experience also implies a lower hourly rate and less income. Research (scant) isn’t incompatible with these statements.

48% of residents in Psychiatry were women in 2018. 2019 Resident/Fellow Census. American Psychiatric Association (2019) https://www.psychiatry.org/file%20library/residents-medicalstudents/residents/apa-resident-census-2019.pdf

Women pursuing Fellowship as medical-Legal trainees in Forensic Psychiatry doubled between 2007 and 2021 “58.8% of all forensic psychiatry trainees in 2020-2021 were female compared to 27.78% of women forensic psychiatry fellows in 2007-08.”  Saboor, Navid, et al. “Gender and Racial Disparity Among Forensic Psychiatry Fellows,” Psychiatric Quarterly (2022).    https://pubmed.ncbi.nlm.nih.gov/35247156/  

The American Board of Psychiatry and Neurology reports for 2021 that about 4% of Board-Certified Psychiatrists are Board Certified in Forensic Psychiatry. Oddly, the ABPN does not record the gender or race of Certified practitioners. (Roughly 2600 Board-Certified Forensic Psychiatrists vs. 68,000 Board-Certified Psychiatrists). ABPN “Facts and Statistics.