Does it matter to the legal profession and pedagogy that men and women didn’t write differently?

3 Nov

I gave a talk this week at a law school regarding my article in Written Communication from October 2016, “Gender/Genre: The lack of gendered register in texts requiring genre knowledge.” The article reports the results of an empirical study, but it does so with reference to theories from corpus linguistics and relevance-theoretic pragmatics, not the sort of thing that most law faculty are interested in. Instead, I wanted to emphasize for them the implications of my study in the legal profession and pedagogy and to situate it within a conversation about gender differences more broadly.

The article is one voice in a cultural and scholarly discussion about gender difference in communication. The conversation about gender differences has a folk component and a scholarly component. My article cites just three news stories—from The Boston Globe, CBS News, and The New Republic—but Google “gender difference” in Google news entries for a plethora.

Despite frequent studies that seem to show gender differences, my study showed that where men and women received similar training for a less than a year and set to a similar writing task in a profession to which they are socializing, their writing was statistically and practically indistinguishable.

This is important because difference discourse enables deficiency discourse. In other words, folks who talk of gender differences often end up talking about how some task may be more suited to men than to women. While there is evidence that women communicate differently than men in some contexts, particularly ones like social media without the constraints of professional conventions, there is not so much about the professional context and even less about professional writing.

Destabilizing folk beliefs about gender differences serves an important purpose in the legal profession, because we don’t want those folk beliefs to affect the confidence placed in female attorneys. In other words, we want to prevent gender discrimination in the legal workplace.

I used Biber’s involved/informational dimension[1] to identify variables to look for in a corpus of nearly 200 law-student papers. Several studies of gender differences in writing have used the involved—informational dimension. (See the article for discussion and citations. I won’t repeat that discussion here.)

The involved end of the dimension is frequently associated with women’s writing and the informational end with mens’. For example, Biber and colleagues examined a 123,000-word corpus of letters written by men (n = 187) and women (n = 51) between the 17th and 20th centuries.[2] Using the involved–informational dimension, they concluded that letters women wrote showed higher prevalence of involved characteristics than those men wrote. They also concluded that letters women wrote to other women were more involved than those they wrote to men, and letters men wrote to men were more informational than those they wrote to women (pp. 219-220).

Note that this suggests there is a sensitivity in the writers to the gender, and perhaps the discursive expectations of the audience. Thus, though men wrote more informationally than women, they did so to a lesser extent when writing TO women.

So, I wondered if men and women would abandon habitual, gendered communication practices when they wrote for an audience with more specific expectations for the writing in question. I collected students’ responses and final writing projects from their first-year legal writing course at two law schools in the Midwest. There were 197 participants of whom 193 indicated their gender. I asked students to indicate their gender in a free-form field, for reasons set out in the article and in some forthcoming work of mine. Based on their responses, I classed them into two gender categories, Gender M and Gender F.

None of the informational features varied significantly (p<0.05) with the gender of the author. Three of the involved features varied statistically significantly, but even they did not confirm an association between Gender F writers and the involved style, as the gender using these three involved features more frequently was Gender M, which tends to disconfirm a correlation between involved register and female authors in this sample.

Here, all three significant differences also had small effect sizes. (See the article for a discussion of this concept.) Two other features had small effect sizes, and all the rest had negligible effect sizes (none with r>.10). In short, it would be nearly impossible for a human reader to detect any differences based on author gender, consciously or unconsciously.

So in this study, linguistic register did not vary with gender where novice legal writers, after receiving less than a year of professional training, wrote in a form they understood to be convention-bound.

So what? The article makes its own arguments about its theoretical significance. What about significance to the legal profession and pedagogy?

The significance of my findings for the legal profession is simple: Law firms should expect men and women to communicate similarly, at least in writing. My study is one piece of evidence that women adapt to one genre of legal communication very similarly to men. Further research may reveal others.

None of this, however, means that judges or law-firm hiring partners, even female ones, are judging female associates according to the same standards as male ones. For example, in another recent voice in the scholarly debate, Professor Michael Higdon discussed the public distress over the use by women of “vocal fry,” a low tone of the voice that results in a gravelly sort of sound.[3] Apparently, it’s commonly used by the Kardashians, and many folks consider it an abomination in women’s speech. But I noted in a recent review of prize-winning Three-Minute Thesis presentations that male presenters make frequent use of vocal fry. I don’t know if anyone was complaining, but the speakers did after all win prizes for their performances.[4]

The bind, of course, is that women are told they should lower their voices to sound more authoritative. Their different—i.e., non-masculine—voices are seen as deficient, and the remedy is to make them sound more masculine. But they have to be careful not to go too far. This is similar to the bind where women, told to be more assertive like male counterparts are judged when they do so to be bossy or bitchy.

The significance of the conversation for legal educators is more complex. It fits into a broader conversation about women, communication, and the law. My study showed that men and women did not communicate distinguishably on the involved/informational dimension in first-year legal writing. I suspect that other characteristics, like vocal fry, are plenty common among men and disfavored mostly when women use them. With such characteristics, we need to let our female students know when they are doing it and that some folks find it annoying. The choice whether to use it or not must be theirs, and we should respect that choice.

We need to let ALL our students know first that many folk beliefs about gender differences in communication are ungrounded, and even some studies that purport to measure them are flawed (because, for example, they look at texts where men and women are not writing for the same purposes or with the same training); and second that some judgments are applied disproportionately to women.

Finally, we need to model the kind of leadership for them that we expect them to take up in the profession. When they become the hiring partners and judges of the future, they should not assume that a woman using vocal fry is a “valley girl” or “Kardashian wannabe”—in other words, they should withhold judgment about the person based on this superficial characteristic. But as good mentors, they may want to alert a female colleague to the rhetorical implications of her speech patterns, just as we as good teachers might do.

One professor in my audience noted that the first half of my pedagogical treatment puts a special burden on female students. Telling them that vocal fry represents a rhetorical danger requires them to add another thing to their checklist of things to do or not do based on gender. I acknowledge that is true. But until the second half of my pedagogical treatment is widely practiced and a new generation of decision-makers takes power in the profession, women will be subject to these kinds of judgments, and they deserve to know the risks so they can make their own choices.

[1] Douglas Biber, Variation across speech and writing 105 (1988).

[2] Douglas Biber, Susan Conrad & Randi Reppen, Corpus linguistics: Investigating language structure and use (1998).

[3] Michael J. Higdon, Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion, 13 Legal Comm’n & Rhetoric: JALWD 1 (2015).

[4] I’m grateful to have taken part in a Facebook discussion of Prof. Higdon’s work hosted by JALWD on October 18. It helped me refine my thoughts on pedagogy relating to this topic.

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