Bias on the Bench: Sex, Judges, and Mock Trial Simulations

Given substantial evidence of sex discrimination in the legal profession and the role of attorneys and judges in perpetuating gender stereotypes, educators have an obligation to prepare female students for the challenges they will face, educate students of both sexes about the role of bias in litigation, and seek to mitigate the influence of stereotyping in professional life. As pre-law advisors and instructors who employ trial simulations to develop a variety of skills, we hope to provide experiences that prepare our students for the dilemmas they will confront in their professional lives, without reinforcing patriarchal norms or encouraging students to assimilate to them. Statistics on the barriers facing female attorneys suggest that our female pre-law students must be prepared to face significant sex discrimination and gender stereotyping once they enter the profession.

Sex discrimination is evident at every level in the legal profession. Perpetuation of the masculinist hierarchy of the legal community begins before a student steps into her/his first law school lecture hall (Kennedy). As law school applicants, prelaw students face the strict hierarchy of law school rankings and the inflexibility of an admissions system based almost entirely on grade point averages and standardized test scores. While other graduate and professional programs increasingly emphasize holistic reviews of applications, law schools continue to rely upon rigid and ostensibly objective criteria, giving little weight to other aspects of the student’s experience and skills. When deciding where to apply for law school, pre-law students quickly realize that their prospects hinge on their ability to navigate a rigid, homogenous, and unforgiving process and to enroll at the most prestigious institution possible. Once students enter law school, they must assimilate into the highly competitive, adversarial, zero-sum system that characterizes legal education, where class rank determines employability and status (Kennedy). Although Duncan Kennedy’s defining piece on the perpetuation of existing power structures in legal education is almost thirty years old, his arguments remain accurate and reflect the experiences of the women who serve as evaluators in mock trial competitions. Law is an inherently conservative institution, for multiple reasons. It values tradition and precedent over innovation and prioritizes consistency over identifying the best outcome in particular contexts. The traditionalist and inflexible nature of the profession may explain why women have not made greater progress in reaching the top levels of the profession, despite reaching parity in law school enrollments.

Numerous surveys have identified discrepancies in male and female attorney hiring, promotion, and compensation. The percentage of women in law school entering classes has held steady at approximately 50 percent for the last fifteen years, but studies analyzing career goals and compensation after law school demonstrate a continuing trend of sex discrimination in the field (Kaye and Reddy; American Bar Association). This is particularly evident in the upper ranks of the legal profession, where practicing attorneys are performing the evaluations. Although women have reached parity in terms of law school enrollment, women lawyers continue to hold significantly fewer leadership roles in firms. In 2007, women accounted for only 16 percent of equity partners, 26 percent of non-equity partners, and 30 percent of “of counsel” lawyers despite comprising nearly half of entry-level associate classes (National Association of Women Lawyers). Given the length of time since women reached the 50 percent mark in law-school matriculation figures, these sex-based differences cannot be dismissed as a “pipeline” problem that will be resolved once a sufficient number of women attorneys have reached mid-career status. As one recent study notes, “Yet the ‘pipeline has been gushing for about two decades and partnership disparity remains.’ Studies have found evidence of ‘both horizontal and vertical gender segregation within the practice of law despite women’s rapid numerical integration into the profession since the early 1970s’” (Ali 189).

Compensation levels for female attorneys also continue to reflect a disturbing disparity in the upper tiers of the profession. A recent survey of law firms reported that the median compensation of male equity partners was almost $90,000 higher than...