Judging Expertise

Abstract

This article develops a framework for understanding the role of gender in negotiations of expert authority and tests the new approach with an analysis of legal disputes about expert witness credibility (N = 435). Content-coded data from patent infringement, civil rights, and medical malpractice lawsuits in U.S. district courts indicate that lawyers’ challenges to expert witnesses’ credibility reflect widely held cultural beliefs about gender and certain kinds of expertise: whereas women are more likely than men to be challenged as unqualified to testify, men are more likely than women to be contested as irrelevant to the case. Furthermore, although highly credentialed women and men have equal chances of overcoming credibility challenges, women with fewer credentials are substantially more likely than men to be excluded from court. Overall, findings suggest that women must clear a higher bar than men to demonstrate their credibility as expert witnesses. Moreover, this study indicates that disputes about expert witness credibility are a site where stereotypes about gender and expertise are reproduced in the justice system.

Keywords

science knowledge technology law sex and gender

For several decades, sociologists have focused on cultural beliefs about gender to understand differences in the average educational and occupational experiences of women and men (Acker 2006; Cech 2013; Correll 2001). These scholars often find that widely shared beliefs about gender and certain knowledge-intensive skills create a larger pool of men than women for careers in science, engineering, medicine, and other areas of expert work. Although women have gained a foothold in many historically masculine professions, women in these fields often experience unequal pay, promotion, and prestige (Cech 2013; Epstein 2000; Hull and Nelson 2000; Kay and Gorman 2006; Roth 2016). Although social scientists have identified numerous gender inequities associated with professional and expert work, researchers have not yet asked whether men and women are perceived differently as sources of expert knowledge. This oversight is surprising given the significance of experts in everyday life. Perceived credibility underwrites experts’ cultural authority, and if one’s gender strengthens or weakens the credibility of their claims, it would point to an important source of inequality in a society increasingly dependent on expertise. It would also suggest that credibility is a site where wider cultural beliefs about gender are maintained and reproduced.

This article examines the relationship between gender and expert authority by investigating legal disputes about expert witness credibility. I argue that widespread cultural beliefs about gender and particular knowledge-intensive competencies shape perceptions of women’s and men’s abilities to provide expert advice. I argue further that these beliefs are evident in the experiences of expert witnesses. I then analyze court cases where expert witnesses’ credibility was challenged by opposing lawyers and where judges decided to allow experts to testify or to exclude them from court. Researchers have examined judicial decisions about expert witnesses before (Harris 2008; Merlino et al. 2008), but this article describes a new approach to studying credibility in the justice system that incorporates sociological knowledge about gender and that weaves together the perspectives of lawyers and judges, who are each critical for determining the legal boundaries of expertise.

Below, I review scholarship on gender and professions to predict how expert witnesses’ gender matters in legal deliberations about their authority. I test my predictions by analyzing disputes about expert witness credibility in civil rights, patent infringement, and medical malpractice court cases in the United States (N = 435). Specifically, I ask (1) whether the credibility challenges posed to expert witnesses depend on their gender, (2) whether experts’ chances of being allowed into court depend on their gender, and if so, (3) whether advanced educational credentials, important symbols of expertise, are capable of overriding differences in how men’s and women’s credibility is challenged and decided. Although I focus primarily on credibility contests, I also examine a sample of expert witnesses whose credibility was not disputed. I find that although fewer women than men testify as expert witnesses, women experts are no more or less likely than men to encounter a challenge to their credibility. Nevertheless, gender differences in how expert credibility is disputed and decided suggest that women must be more qualified than men to be seen as equally credible. I conclude by discussing the implications of the gender-specific processes used to evaluate expert witnesses in court.

Background

Cultural Beliefs about Knowledge-intensive Competencies

Although gender frames social interaction across levels of analysis (Ridgeway 2011), this article focuses on how macrolevel cultural beliefs shape individual-level perceptions of experts. As a mutually reinforcing system, gender is among a small number of foundational frames for organizing social life. Frames such as gender provide heuristics, which create a basis for widespread beliefs about what the typical member of a gender category is like (Eagly, Wood, and Diekman 2000; Ridgeway and Correll 2004). Importantly, because culturally dominant beliefs about gender are widely known, they may influence the thoughts and actions of individuals who personally reject them.

Cultural beliefs about gender include assumptions about the competence of the average woman and man at work. In the United States and elsewhere, men are typically presumed to be more competent than women in activities that are either stereotypically masculine or gender neutral (Ridgeway 2009; Wagner and Berger 1997). Despite limited evidence of innate differences, mathematical and analytical abilities are often associated with masculinity (Charles and Bradley 2009; Lueptow, Garovich-Szabo, and Lueptow 2001; Nosek, Banaji, and Greenwald 2002). This association has been documented cross-nationally, statistically (Charles and Bradley 2009), ethnographically (Seymour and Hewitt 1997), at school (National Science Foundation 1994), at work (Cech 2013), and at home (Frome and Eccles 1998). In other words, the presumption that men are better suited than women for certain knowledge-intensive roles is widespread. Once established, gender attitudes can then shape evaluations of self and other such that given the same performance in a masculine-typed task, the average female may rate herself lower and may be rated lower by others compared with a male (Correll 2001; Ma and Johnson 2008).

Depending on the setting, other identities and attributes may either amplify or outweigh cultural beliefs about gender (Correll and Ridgeway 2006; Ridgeway and Smith-Lovin 1999). For example, in evaluating the quality of an expert claim, symbols of specialized knowledge such as advanced educational credentials are important indicators of legitimacy (Brown and Bills 2011; Giddens 1991; Shapin 1994). Women with advanced degrees may therefore be exempt from the stereotype that they are less capable than men as sources of certain kinds of expert knowledge. Of course, gender attitudes are not uniform and neither is their role in organizing beliefs about others. Thus, there is likely to be substantial variation in how individuals perceive experts. Nonetheless, the pervasiveness of gender stereotypes suggests that there may be measurable aggregate-level differences in how the credibility of women and men is judged in court.

Gender and Professions

As both cause and consequence of dominant gender attitudes, workplaces in the United States and elsewhere are highly gender stratified (Diekman et al. 2010; J. Williams 1999; C. Williams, Muller, and Kilanski 2012). Although women have made inroads in many masculine-typed occupations, women remain underrepresented in certain areas of science, engineering, medicine, and other kinds of knowledge-based work, particularly in the upper echelons (Ku 2011; Long 2001; National Science Board 2014). Not only are there fewer women than men in many areas of expert work but women in these fields are also often treated differently than men. For example, in the legal profession, women lawyers tend to work in less prestigious and less remunerative jobs, and, on average, are promoted more slowly and through different channels than men (Carson 2004; Epstein 2000; Gorman 2006; Hull and Nelson 2000; Sandefur 2007). Gender discrimination in the legal field also persists in the form of sexist behavior and comments (Kay, Mausch, and Curry 2014; Rhode 2001; Wilder 2007). Perhaps not surprisingly, lawyers who are women are more likely than men to perceive gender biases at work (Coontz 1995).

In summary, researchers have identified widely held stereotypes about gender and numerous inequities in expert labor associated with these beliefs. Unfortunately, however, scholars have not yet examined whether and how one’s gender shapes perceptions of their expertise. Moreover, research on gender and work is often profession-specific, and relatively little is known about how women and men are treated as sources of knowledge outside of their own organizations and fields. Thus, although case-based research has demonstrated that expert authority is constructed through interactions called “credibility contests” (Gieryn 1999), this study is poised to shed new light on broader patterns in the extent to which experts’ gender matters in negotiations of their credibility.

The Role of Cultural Beliefs in Legal Disputes about Expert Credibility

Courts are useful for investigating patterns in credibility contests because they have a standardized procedure for determining expert witness credibility. In U.S. federal courts, the process is guided by Rule 702 of the Federal Rules of Evidence and its interpretation by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 1993). Together, these standards establish that experts must be (1) qualified, (2) reliable, and (3) relevant.¹ Given culturally dominant gender attitudes, it is possible that expert witnesses’ gender informs perceptions of the strengths and weaknesses of their testimony, which may in turn shape lawyers’ strategies for attempting to exclude them from court.

Challenges to an expert’s qualifications may be the most severe indictments of an expert’s authority, because unlike reliability and relevance challenges, these argue that the witness fails even to meet the minimum threshold that distinguishes expert from lay person. Instead, reliability and relevance challenges focus on issues such as accuracy or necessity while tacitly acknowledging the witness’s standing as an expert. If challenges to expert witnesses’ credibility are framed by culturally dominant views of gender, then women may be more likely than men to be contested as unqualified. Likewise, if women are presumed to be less competent sources of expert knowledge than men, then women expert witnesses may be disproportionately targeted as unreliable. The ubiquity of dominant gender attitudes suggests that women and men lawyers may each be subject to this bias.

In contrast to qualifications and reliability disputes, relevance challenges do not question the status or veracity of an expert witness. Rather, they provide a chance to exclude qualified and reliable experts by arguing that their opinions are unrelated to litigation or unneeded to resolve the case. For example, an expert in an employment discrimination case who testifies about a methodologically sound survey of employees may still be excluded if the testimony is not clearly helpful to the fact finder (i.e., the judge or jury). If perceptions of expert witnesses are colored by a stereotype that men are more capable experts than women, then men may be more likely to be challenged as irrelevant rather than unqualified or unreliable. Thus, the following hypothesis is proposed:

Hypothesis 1: Challenges to expert witnesses’ credibility are more likely to focus on women’s qualifications or reliability and on men’s relevance.

However, when lawyers assess experts’ credibility, the value of an advanced educational credential may be heightened for witnesses whose degrees seem inconsistent with their other identities and statuses. Because of gendered educational expectations, women with medical degrees (MDs), PhDs, and other doctoral-level degrees may be assumed to be equally credible as men. If so, then highly credentialed women expert witnesses may face the same kinds of credibility challenges as men, whereas women without advanced degrees are challenged differently. Hence, the following hypothesis is proposed:

Hypothesis 2: Advanced educational credentials override gender differences in how expert witnesses’ credibility is challenged.

Cultural beliefs about gender may also affect judges’ views of expert witnesses. If so, then when faced with competing claims about expert credibility, judges may be more likely to rule in men’s favor. The pervasiveness of dominant gender attitudes suggests that, like lawyers, both women and men judges may be subject to their influence. Once again, however, women whose credentials exceed gendered expectations may be exempt from this bias, whereas those with fewer credentials are disproportionately barred from testifying. Therefore, the following hypothesis is proposed:

Hypothesis 3: Women and men expert witnesses with advanced educational credentials have equal chances of overcoming credibility challenges, whereas among experts with fewer credentials, women are more likely than men to be excluded from court.

Data, Method, and Measures

Sampling

To test these hypotheses, I examined court cases in which lawyers motioned to exclude an opposing expert witness and judges decided to either admit or exclude the expert. Data come from written judicial opinions from patent infringement, civil rights, and medical malpractice cases argued in U.S. district courts.² I collected opinions from the LexisNexis database of federal cases during 2013, focusing on opinions from 2010 and 2011 to allow a one-year lag for opinions to be added to the database. LexisNexis contains 34,412 opinions in these areas of law during 2010 and 2011, compared with 29,091 during 2008 and 2009, and 37,258 during 2012 and 2013. This growth mirrors an increase in federal courts’ caseloads (Office of the U.S. Courts 2015). However, the search string used to identify disputes about expert credibility (described below) selected between 4 and 5 percent of the opinions in the database annually between 2008 and 2013, suggesting that the share of opinions with credibility contests has been steady in recent years.

Expert testimony is critical in these three areas of law. If courts’ treatment of experts depends on their gender, it would suggest that credibility disputes are a mechanism that prevents women and men from using courts equally to provide expert advice about important sociolegal issues related to discrimination, technology and innovation, and health care. Methodologically, these areas of law are attractive because they include experts from a wide range of professions and fields including nurses, physicians, accountants, economists, scientists, engineers, and others. These cases therefore provide the variation needed to test hypotheses about the intersection of gender, credentials, and credibility. No single area of litigation is representative of the judiciary but the uniformity of federal rules for expert admissibility, and the interconnectedness of these areas of law with others, suggests that findings from this study may also apply to other kinds of cases, especially in civil courts.

To avoid missing relevant cases, I located opinions in LexisNexis using an overly broad search string that identified words such as “admitted” or “excluded” within the same paragraph as “expert.”³ The search returned 1,464 opinions, or approximately 4 percent of the opinions in these areas of law during 2010 and 2011. I read each opinion to identify those describing (1) a motion to exclude the testimony of one or more expert witness and (2) the judge’s decision to admit or exclude the expert’s testimony. A total of 276 opinions met these criteria and were coded for analysis.⁴ Opinions contained, on average, 1.58 credibility contests each, yielding a sample of 435 credibility contests, which is the unit of analysis.⁵ Although LexisNexis only contains written opinions, there is no database of judges’ oral rulings. However, controversial decisions are likely to be written to facilitate appeals, suggesting that the most contentious—and sociologically informative—debates about credibility are included. Excluding oral and unpublished decisions, this study investigates the entire population of disputes about expert credibility in U.S. district courts in these areas of law during 2010 and 2011.

Analytic Technique

Through multiple rounds of reading, I content-coded opinions for characteristics of lawyers’ credibility challenges and judges’ decisions to admit or exclude experts. Based on content-coded opinions, I created variables for a statistical analysis, which I conducted using Stata 13 software. I estimated binary logistic regression models to test for gender differences, and I computed predicted probabilities and delta-method standard errors to test for interaction effects and to interpret results (Long 2009). I clustered standard errors in regressions by judges because some authored multiple opinions in the data set. In supplemental analyses, I clustered standard errors by opinion, district, state, and area of litigation, and found similar results. This indicates that results are not substantially affected by the data’s nesting structure.

Coding

I coded experts individually in opinions with more than one expert. I coded experts appearing in more than one contest separately in each. I combined data from judicial opinions with information on expert witnesses’ educational backgrounds, which I gathered from online sources such as Proquest and Healthgrades. I used experts’ personal and professional Web sites to supplement and corroborate this information. To verify the data’s reliability, a research assistant recoded a random subsample of cases. There was 92 percent agreement between the coding and recoding of the data. Cohen’s kappa statistic, which accounts for chance agreement among coders, was .78, indicating high interrater reliability.

Credibility challenges

I used nonexclusive binary variables to signify challenges aimed at experts’ (1) qualifications (21 percent), (2) reliability (41 percent), and (3) relevance (35 percent).⁶ These and other variables in the analysis are summarized in Table 1. A passage from a patent infringement case illustrates how qualifications challenges were often described in judicial opinions: “Plaintiff argues that [defendant’s expert] Ms. Cronan is not qualified to testify as an expert witness in this matter, contending that she lacks the requisite academic and professional experience to support expert opinion testimony . . .”⁷ Similarly, in a gender discrimination lawsuit, the defendant argued that the plaintiff’s expert “should be excluded because she is unqualified to offer an expert opinion regarding gender stereotyping . . .”⁸ In a medical malpractice case, the defendant challenged the plaintiff’s expert, arguing that the witness “is retired and stopped performing surgeries in 2001 or 2002, a year or two before the surgeries at issue in the present cases, [and therefore] is not qualified to testify as an expert at trial.”⁹

Table 1.

Descriptive Statistics for Variables of Interest.

Variable	Combined (N = 435)	Women (n = 55)	Men (n = 380)
Dependent variables
Basis of credibility challenge
Expert is unqualified	0.21	0.36	0.19
Expert is unreliable	0.41	0.31	0.42
Expert is irrelevant	0.35	0.25	0.36
Judicial decisions about expert
Expert is admitted	0.51	0.45	0.52
Characteristics of experts
Expert is a woman	0.13	—	—
Expert has a doctorate	0.68	0.56	0.70
Experts’ specialization
Medical/health care	0.29	0.31	0.29
Social science	0.26	0.38	0.24
Science/engineering	0.21	0.02	0.24
Business	0.14	0.20	0.13
Law	0.07	0.05	0.07
Other	0.03	0.04	0.03
Experts’ professional age
Early career (10 or fewer years since highest degree)	0.05	0.07	0.05
Middle career (11 to 39 years since highest degree)	0.63	0.67	0.62
Late career (40 or more years since highest degree)	0.14	0.02	0.16
Professional age missing	0.18	0.24	0.17
Characteristics of court cases
Experience-based testimony	0.35	0.51	0.33
Alleged procedural violation	0.38	0.33	0.39
Patent infringement case	0.43	0.20	0.46
Discrimination case	0.35	0.62	0.31
Medical malpractice case	0.22	0.18	0.23
Plaintiff is an individual	0.50	0.67	0.48
Defendant is an individual	0.25	0.35	0.24
Judge is a woman	0.29	0.31	0.29

Note. Data are from civil rights, patent infringement, and medical malpractice cases in U.S. district courts (2010–2011). Statistics in the table are proportions. All variables are measured dichotomously. Proportions may not sum to one due to rounding or nonexclusivity (credibility challenges are not mutually exclusive).

Other credibility challenges centered on experts’ reliability. For example, in a medical malpractice lawsuit, the defendant “assail[ed] the reliability of [plaintiff’s expert] Dr. Suen’s opinion because he did not adequately take into account other possible causes of Douglas’s respiratory problems . . .”¹⁰ In a disability discrimination case, an expert for the plaintiff presented testimony that was attacked as “unreliable because [defendant] National Conference of Bar Examiners (NCBE) says it is based ‘in large part’ on repetition of [plaintiff] Ms. Enyart’s own opinions and statements about her prior use of accommodations . . .”¹¹ In a patent infringement lawsuit, the defendants argued that the plaintiff’s expert was unreliable because he “used the wrong analysis to determine the plaintiff’s damages, and also relied on incorrect data, and flawed, unsupported assumptions.”¹²

Still other challenges focused on the relevance of experts’ testimony. For example, in a medical malpractice case,

The [defendant] government also argues that because [plaintiff’s expert] Dr. Super’s proposed testimony reflects only his personal custom and practice, it is irrelevant, as it will not assist the trier of fact in determining whether there was a violation of the standard of care, as required in a medical malpractice case.¹³

An excerpt from a patent case describing a challenge to several experts illustrated a similar dispute: “[plaintiff] Aviva does not challenge the experts’ qualifications. Instead, Aviva asserts that the experts’ opinions are speculative and irrelevant.”¹⁴ An expert in an employment discrimination case was also challenged based on the necessity of his testimony: “[defendant] Shaw argues that [plaintiff’s expert] Kleiner’s opinions are irrelevant . . . Shaw maintains that whether it followed standards outlined in a human resources text has no bearing on whether [plaintiff] Blakeslee’s termination was discriminatory or retaliatory.”¹⁵

Many plaintiffs and defendants in these cases were represented by multiple lawyers. These legal teams often included both women and men. However, lawyers’ gender is not included in the analysis because of inconsistencies in whether and how lawyers were identified in judicial opinions. For example, some opinions did not name the lawyers arguing the case and others only included lawyers’ last names. When lawyers’ names were provided, status hierarchies within legal teams were not usually identified, and neither were the elements of the case handled by each lawyer, making it difficult to connect individual lawyers to credibility challenges when a party was represented by multiple lawyers. Although this article focuses on experts’ gender, the role of lawyers’ gender in disputes about expert credibility may be a promising area for future research.

Judicial decisions

I measured judges’ decisions to admit or exclude experts’ testimony with a binary variable (51 percent admitted). For example, in a patent infringement case where an expert was challenged as unqualified, the judge held that the expert’s opinions were admissible:

The Court has fully considered [plaintiff] Iguana’s motion to exclude [defendant’s expert] Hewitt’s testimony and finds that Hewitt is qualified to render an expert opinion on these issues . . . Therefore, Iguana’s motion to exclude Hewitt’s testimony is denied.¹⁶

However, not all experts were as fortunate. For example, in a gender discrimination lawsuit, a judge excluded an expert as irrelevant, ruling that “[plaintiff’s expert] Dr. Sandler’s opinion, therefore, would not assist the trier of fact in determining whether the [defendant] University intentionally discriminated against [plaintiff] Blessing on the basis of her gender and is, in this case at least, inadmissible.”¹⁷

Characteristics of experts and court cases

I inferred experts’ gender from their names and the pronouns used to describe them in judicial opinions. Women comprised 13 percent of the sample and were better represented in civil rights (23 percent) compared with medical malpractice (10 percent) and patent infringement cases (6 percent). This may reflect the persistent scarcity of women in fields related to patent and medical malpractice law, such as physical science, engineering, and medicine. In contrast, women are relatively well-represented in social sciences (National Science Board 2014), which may be more applicable to civil rights litigation and which may account for the somewhat higher proportion of women in these cases.

The small number of women in these data may correspond to an underrepresentation of women in the population of expert witnesses, which would be commensurate with gender imbalances in many areas of professional work. Or, the uneven gender distribution in these cases may mean that women are contested at a lower rate than men, perhaps because women must clear a higher bar than men to be hired as expert witnesses in the first place. To adjudicate between these possibilities, I conducted a supplemental analysis of 270 expert witnesses that included both disputed (n = 81) and undisputed experts (n = 189). These experts were sampled from civil rights cases in 2010 using the same procedure described earlier except that the search was no longer restricted to credibility contests. Women comprised 17 percent (n = 14) of the disputed experts in these cases as well as 17 percent (n = 32) of the undisputed experts. Moreover, of the combined 46 women in these cases (i.e., disputed and undisputed), 30 percent (n = 14) faced a credibility challenge, as did 30 percent (n = 67) of the combined 224 men. This suggests that although women are sharply underrepresented as expert witnesses, once they are hired, they are no more or less likely than men to encounter a credibility challenge. However, as the next section reveals, differences in the kinds of challenges posed to women and men indicate that there are gender-specific obstacles to being recognized as credible sources of expert knowledge in court.

Differences in how expert witnesses’ credibility is negotiated may result from differences in the educational credentials held by experts. The analysis therefore included a binary variable to indicate whether or not experts held a doctoral-level credential such as an MD or a doctorate of philosophy (PhD), education (EdD), or another field (68 percent).¹⁸ In credibility contests, a smaller share of women than men held a doctorate or MD—56 compared with 70 percent. However, the pattern is reversed among uncontested experts where 84 percent of women compared with 76 percent of men held a doctoral-level degree. This suggests that a doctoral credential is even more valuable for women than for men, which is consistent with this article’s argument that women must be more qualified than men to be seen as equally credible.

Scientific disciplines are another source of variation in expert authority (Gieryn 1999), and if credibility contests unfold differently for women and men, it may reflect differences in their areas of specialization. Experts’ specializations were therefore examined using a set of mutually exclusive binary variables that signify whether experts’ highest degrees were in medicine/health care (29 percent), social science (26 percent), science/engineering (22 percent), business (14 percent), law (7 percent), or another field (3 percent). Similar to wider disparities in scientific disciplines, women were overrepresented in social science, and underrepresented in science and engineering. Women in masculine-typed disciplines may experience gains in credibility similar to those of women whose credentials exceed gendered expectations. Unfortunately, the small number of women in these data trained in male-dominated fields such as science and engineering (n = 1), law (n = 3), and business (n = 11) limit a more detailed analysis of how credentials, disciplines, and gender intersect in credibility contests. A potentially fruitful line of research may be to pursue this next level of analysis.

Experts’ level of professional experience may also factor into perceptions of their credibility. Experts’ professional age was therefore included in the analysis using binary variables for those in their earliest (10 or fewer years since highest degree; 5 percent), middle (11 to 39 years since degree; 63 percent), and most senior career years (40 or more years since highest degree; 14 percent).¹⁹ Due to substantial missing data for this item, regressions included a binary variable for experts whose professional age was unavailable (18 percent).²⁰ Consistent with the age structure of the scientific workforce, women in the sample were younger than men (National Science Board 2014).

Some legal scholars criticize experience-based expert testimony for blurring the boundary between expert and lay opinion testimony (Poulin 2013; Reese 2013). Regressions therefore included a binary control for expert testimony characterized by judges as experience-based (35 percent).²¹ For example, in a medical malpractice lawsuit filed by a jail inmate, an expert witness used his “hands-on experience” as a former jail administrator to testify about medical care at correctional facilities.²² In a patent infringement lawsuit about health care technology, an expert based his testimony on his “first-hand experience as [defendant] Spinal Kinetics Senior Director of Engineering.”²³ In a lawsuit concerning gender discrimination in extracurricular opportunities for students, an expert testified “based on her experience in coaching high school softball in Texas.”²⁴

To determine whether credibility contests varied across areas of litigation, regression models controlled for litigation type with binary variables for civil rights (35 percent) and medical malpractice cases (22 percent). Patent infringement cases (43 percent) were the referent. I controlled for the resources available to litigants with binary variables for cases where the plaintiff was an individual (50 percent) and cases where the defendant was an individual (25 percent). Finally, given the potential importance of judges’ gender in this context, regressions included a binary measure to indicate whether the judge deciding the case was a woman (29 percent).

Results

Lawyers’ Challenges to Experts

Overall, challenges to expert witnesses’ credibility were consistent with culturally dominant beliefs about gender and suggest that women must meet a higher standard than men to demonstrate their expertise in court. Specifically, Table 1 indicates that a larger proportion of women than men were challenged as unqualified, whereas a greater share of men than women was challenged as irrelevant. Binary logistic regressions in Table 2 show that these differences were statistically significant.²⁵ For example, Model 1 indicates that women were nearly twice as likely as men to face a challenge to their qualifications, net of other differences among courts and experts including their educational credentials, areas of specialization, and professional age (e^b = 1.98, p < .05). In other words, women were more likely than men to be challenged as unqualified even after controlling for key indicators of their qualifications.

Table 2.

Odds Ratios from Binary Logistic Regressions of Credibility Challenges on Experts’ Gender and Controls.

Variable	Model 1: Qualifications challenge (main effects)	Model 2: Qualifications challenge (interaction)	Model 3: Reliability challenge (main effects)	Model 4: Reliability challenge (interaction)	Model 5: Relevance challenge (main effects)	Model 6: Relevance challenge (interaction)
Expert is a woman	1.98* (0.67)	2.48^† (1.32)	0.66 (0.24)	0.82 (0.39)	0.51* (0.17)	0.41 (0.23)
Expert has a doctorate	1.05 (0.49)	1.15 (0.59)	1.30 (0.45)	1.37 (0.49)	2.08* (0.76)	1.99^† (0.77)
Woman × Doctorate	—	0.67 (0.40)	—	0.68 (0.41)	—	1.37 (0.90)
Experts’ specialization
Social science (vs. medical/health care)	0.56 (0.23)	0.58 (0.24)	1.61 (0.63)	1.63 (0.65)	0.82 (0.30)	0.81 (0.29)
Science/engineering (vs. medical/health care)	0.38* (0.18)	0.38* (0.18)	1.02 (0.47)	1.02 (0.47)	0.62 (0.24)	0.62 (0.24)
Business (vs. medical/health care)	0.93 (0.51)	0.95 (0.53)	2.75* (1.34)	2.76* (1.33)	1.22 (0.57)	1.20 (0.56)
Law (vs. medical/health care)	0.81 (0.49)	0.85 (0.53)	1.53 (0.87)	1.56 (0.89)	2.95^† (1.65)	2.89^† (1.64)
Other (vs. medical/health care)	0.93 (0.64)	0.95 (0.66)	0.95 (0.77)	0.95 (0.76)	0.66 (0.48)	0.66 (0.48)
Experts’ professional age
Early career (vs. mid-career)	2.61 (1.57)	2.63 (1.57)	1.25 (0.62)	1.26 (0.62)	0.67 (0.32)	0.67 (0.32)
Late career (vs. mid-career)	1.13 (0.48)	1.12 (0.48)	1.41 (0.41)	1.40 (0.41)	1.05 (0.29)	1.06 (0.30)
Professional age missing (vs. mid-career)	1.37 (0.48)	1.35 (0.48)	0.91 (0.27)	0.90 (0.27)	0.80 (0.24)	0.81 (0.24)
Characteristics of court cases
Experience-based testimony	4.57*** (1.33)	4.55*** (1.32)	1.29 (0.32)	1.28 (0.32)	1.60^† (0.40)	1.60^† (0.40)
Discrimination case (vs. patent infringement)	0.48 (0.29)	0.48 (0.29)	0.96 (0.40)	0.97 (0.41)	1.31 (0.55)	1.31 (0.55)
Medical malpractice case (vs. patent infringement)	0.28* (0.18)	0.28* (0.18)	1.28 (0.68)	1.25 (0.67)	0.44 (0.24)	0.45 (0.25)
Plaintiff is an individual	1.38 (0.70)	1.37 (0.70)	0.45* (0.16)	0.44* (0.16)	1.00 (0.33)	1.00 (0.33)
Defendant is an individual	1.26 (0.43)	1.27 (0.44)	0.90 (0.30)	0.91 (0.30)	0.67 (0.23)	0.67 (0.23)
Judge is a woman	0.77 (0.23)	0.76 (0.23)	0.80 (0.22)	0.79 (0.22)	1.16 (0.36)	1.17 (0.36)
Constant	0.21	0.19	0.61	0.59	0.37	0.38
Log-likelihood	−192.04	−191.89	−279.98	−279.82	−264.48	−264.39
Bayesian information criterion	487.36	493.14	663.25	669.00	632.24	638.13
N	435	435	435	435	435	435

Note. Data are from civil rights, patent infringement, and medical malpractice cases in U.S. district courts (2010–2011). Robust standard errors are in parentheses.

†

p < .10. *p < .05. ***p < .001 (two-tailed tests).

Hypothesis 2 predicted that educational credentials moderate the relationship between experts’ gender and their perceived credibility such that women with advanced degrees experience the same kinds of credibility challenges as men, whereas women with fewer credentials are more likely to be challenged as unqualified. Model 2 in Table 3 tested for this possibility by including an interaction between experts’ gender and educational credentials. However, the interaction was not significant, indicating that women with advanced degrees were no less likely than those without to be disputed as unqualified. This suggests that a doctoral credential is not enough to outweigh women’s greater likelihood of having to defend their qualifications to testify as experts.

Table 3.

Odds Ratios from Binary Logistic Regressions of Judges’ Decisions to Admit or Exclude Experts on Experts’ Gender and Controls.

Variable	Model 1: Expert admitted (main effects)	Model 2: Expert admitted (interaction)
Expert is a woman	0.88 (0.26)	0.37* (0.18)
Expert has a doctorate	1.19 (0.36)	0.96 (0.29)
Woman × Doctorate	—	4.15* (2.56)
Experts’ specialization
Social science (vs. medical/health care)	0.95 (0.35)	0.89 (0.34)
Science/engineering (vs. medical/health care)	1.19 (0.52)	1.22 (0.55)
Business (vs. medical/health care)	0.76 (0.34)	0.75 (0.34)
Law (vs. medical/health care)	0.78 (0.42)	0.72 (0.39)
Other (vs. medical/health care)	0.98 (0.68)	1.00 (0.69)
Experts’ professional age
Early career (vs. mid-career)	0.43* (0.17)	0.42* (0.17)
Later career (vs. mid-career)	0.77 (0.25)	0.78 (0.25)
Age missing (vs. mid-career)	0.67 (0.19)	0.68 (0.20)
Characteristics of court cases
Expert challenged as unreliable (vs. unqualified)	1.30 (0.33)	1.32 (0.34)
Expert challenged as irrelevant (vs. unqualified)	0.52** (0.12)	0.51** (0.12)
Alleged procedural violation (vs. unqualified)	0.59* (0.15)	0.58* (0.15)
Experience-based testimony	0.55* (0.15)	0.55* (0.15)
Civil rights case (vs. patent infringement)	0.91 (0.35)	0.91 (0.35)
Medical malpractice case (vs. patent infringement)	1.31 (0.76)	1.43 (0.82)
Plaintiff is an individual	1.39 (0.47)	1.40 (0.47)
Defendant is an individual	0.48* (0.14)	0.45** (0.14)
Judge is a woman	1.49 (0.38)	1.58^† (0.40)
Constant	1.73	2.00
Log-likelihood	−280.26	−277.97
Bayesian information criterion	682.03	683.53
N	435	435

Note. Data are from civil rights, patent infringement, and medical malpractice cases in U.S. district courts (2010–2011). Robust standard errors are in parentheses.

†

p < .10. *p < .05. **p < .01 (two-tailed tests).

Gender differences in reliability challenges in Models 3 (main effects) and 4 (gender and credential interaction) were not statistically significant. However, Model 5 indicates that women were roughly half as likely as men to be contested as irrelevant, all else equal (e^b = .51, p < .05). Once again, the gender and credential interaction in Model 6 was not statistically significant, indicating that credentials do not moderate the relationship between experts’ gender and their chances of facing a relevance challenge. Thus, results from Table 2 largely support Hypothesis 1, and suggest that lawyers’ greater likelihood of challenging men’s relevance and women’s qualifications were independent of experts’ educational credentials.

Judges’ Decisions about Experts

Judges’ decisions about contested experts also suggest that women must clear a higher bar than men to be recognized as credible expert witnesses. Although men were slightly more likely than women to overcome credibility challenges, Model 1 in Table 3 indicates that the overall gender difference was not statistically significant. However, after accounting for the moderating effect of experts’ credentials in Model 2, results fall into line with Hypothesis 3. Specifically, women without a doctoral-level credential were 63 percent less likely than similarly credentialed men to be admitted into court, all else equal (e^b = 0.37, p < .05). Furthermore, doctoral-level degrees increased women’s but not men’s chances of winning credibility contests (e^b = 4.15 p < .05). These patterns align with other research on cultural beliefs about gender and suggest that gender stereotypes lead to a devaluation of women’s expertise unless it is independently corroborated by an advanced educational degree.

To provide a more concrete interpretation of these results, Figure 1 illustrates differences in the predicted probabilities of being admitted into court for men and women with and without doctoral-level credentials. Predictions were adjusted to reflect gender and credential differences when other independent variables were at their mean levels. The first bar in the figure depicts the premium in credibility for women with advanced degrees. For the average woman with a doctoral-level credential, the probability of being admitted into court was 30 points higher than it was for the average woman without a doctorate. The difference in probabilities was statistically significant (p < .05). The figure also shows that highly credentialed women and men had similar probabilities of overcoming credibility challenges, and that advanced credentials did not have the same positive effect for men as they did for women. The final bar in the figure shows that among experts without doctoral-level degrees, the average woman’s probability of being admitted into court was 21 points lower than the average man’s (p < .05). Thus, while MDs and other doctorates substantially enhanced women’s odds of success, women without these credentials were much less likely than similarly situated men to overcome credibility challenges. This suggests once again that the benchmark of credibility is higher for women expert witnesses than it is for men.

Figure 1.

Adjusted gender and credential differences in predicted probabilities experts are admitted.

Two other findings from Model 2 in Table 3 merit attention. First, experts who were disputed as irrelevant were 49 percent less likely than those challenged as unqualified to win credibility contests (e^b = .51, p < .01). This is noteworthy because despite having lower odds of facing a relevance challenge, women without doctoral-level credentials were more likely than men to be excluded from court. In other words, gender differences in judicial decisions about experts cannot be attributed to differences in how experts’ credibility was challenged. This further underscores the importance of experts’ gender relative to characteristics of court cases for understanding the outcomes of legal disputes about expert credibility.

Second, Model 2 indicates that women judges were 58 percent more likely than men to admit contested experts into court, although the difference was only marginally significant (e^b = 1.58, p = .07). Nonetheless, this may mean that women judges tend to hold more inclusive views of expertise. Yet this pattern may also correspond to less confidence among women judges to determine which experts were qualified, reliable, and relevant. Unfortunately, these data cannot test these competing possibilities. However, supplemental regressions of judges’ decisions indicated that the interaction between judges’ and experts’ gender was not significant. This suggests that in these cases, women judges were no more or less likely than men to allow women or men experts to testify.

To summarize, this analysis indicates that experts’ gender shaped legal negotiations of their credibility in two related ways. First, lawyers’ arguments to exclude opposing experts were consistent with gender stereotypes that cast men as more capable sources of certain kinds of knowledge. Second, although highly credentialed women were just as likely as men to overcome credibility challenges, women with fewer credentials were substantially more likely than men with equivalent degrees to be barred from testifying. Thus, although the prominence of experts’ gender may be masked in individual lawsuits, these results underscore the aggregate-level consequences of expert witnesses’ gender in legal deliberations about their credibility.

Conclusions

Perceived credibility is vital to experts’ cultural authority, yet little is currently known about the extent to which experts’ gender shapes beliefs about their legitimacy as sources of knowledge. This article has begun to fill this gap by investigating legal disputes about expert witness credibility. Although I have focused mainly on gender differences in credibility contests, it is difficult to ignore the scarcity of women in these cases. A supplemental analysis of uncontested experts suggests that women are also underrepresented among expert witnesses more broadly. It is possible that women provide expert testimony more often in other areas of law. However, this seems unlikely given the small number of women featured in civil rights cases despite the relatively large pool of women with social scientific expertise available to testify. Thus, consistent with studies that find that women are underrepresented in the upper strata of fields where there is gender parity in lower-status roles (Kay and Gorman 2006; Long 2001), this investigation suggests that women are less likely than men to testify as expert witnesses even in areas of law where there are many women with relevant expertise.

This article also found that legal challenges to expert witnesses’ credibility depend on experts’ gender. Specifically, women were more likely than men to be contested as unqualified, and men were more likely than women to be contested as irrelevant. Regardless of whether lawyers actually hold these beliefs or if they assume others do, this pattern aligns with research on gender and perceptions of analytical competencies (Correll 2001; Correll and Ridgeway 2006; Ridgeway and Smith-Lovin 1999). This article extends this literature by showing that the high-status role of expert witness is not enough to offset widely shared beliefs about gender and certain kinds of expertise. Men are often assumed to be more capable than women at mathematical and scientific tasks, and women’s greater likelihood of being challenged as unqualified even after controlling for several indicators of their qualifications resonates with this stereotype. Overall, this suggests that women must meet a higher measure than men to demonstrate their legitimacy as expert witnesses.

This article hypothesized that because advanced educational credentials are easily recognizable markers of expertise, highly credentialed women are exempt from stereotypes that bias views of women with fewer credentials. Judges’ decisions to admit and exclude expert witnesses supported this prediction. Although highly credentialed women were equally likely as men to prevail in these cases, women with fewer credentials were much less likely than men to be allowed into court. Furthermore, advanced credentials bolstered women’s credibility in ways that they did not for men. These results are consistent with the finding from the analysis of uncontested experts that women with advanced credentials were less likely to be challenged in the first place. An important implication of this is that in knowledge-intensive roles such as expert witness, an advanced credential may be seen as a routine achievement for men, an attribute that, although valuable, is not essential for establishing legitimacy. For women, however, an advanced degree is critical because it provides external verification of their expertise. This also indicates that credibility is stratified by gender more sharply for some kinds of expert witnesses than for others.

Differences in women’s and men’s chances of overcoming credibility challenges may relate to professional differences among expert witnesses. If women, especially those without MDs, PhDs, and other doctoral-level degrees, tend to work in fields that make them less likely to testify repeatedly as expert witnesses, then their greater likelihood of being excluded from court may reflect their relative inexperience in the legal system. In contrast, if men’s professions make them more likely to be “repeat players” in courts, then men may be more likely to have informal network ties or a tacit understanding of legal processes that makes them more successful in credibility contests. Thus, future research should consider whether there are gender-specific career trajectories among expert witnesses and, if so, whether they contribute to gender differences in legal negotiations of credibility.

Unlike judges’ decisions about experts, lawyers’ attacks on experts’ credibility were not moderated by experts’ credentials. One possible reason for the difference is that lawyers’ challenges to opposing experts may attempt to activate widely held gender stereotypes. These appeals to dominant gender attitudes may therefore ignore or downplay attributes such as experts’ educational credentials, which might contradict the stereotype that men are more competent than women as sources of expert advice. Although this article focused on experts’ gender, lawyers’ gender may also matter for the strategies they use to contest opposing experts as well as their decisions to hire women or men expert witnesses in the first place. Although these data cannot assess these issues, future qualitative studies should consider lawyers’ motivations for selecting and contesting experts in addition to the role of lawyers’ gender in the legal construction of expertise more generally.

Aside from courts, understanding how credibility is constructed is important for understanding contemporary social life more broadly. Experts are called upon for advice in many settings, and individual-level decisions about who counts as a credible expert have aggregate-level consequences for the kinds of leaders entrusted with power in the public sphere. Shared beliefs about knowledge, legitimacy, and credibility shape the contours of political cultures (Jasanoff 2005), and this article provides new insights about how courts’ treatment of expert witnesses reinforces particular meanings of expertise. This analysis suggests that the achievement of expert authority is patterned by gender, and future research should examine how other attributes and identities such as race, ethnicity, occupations, and geographic location contribute to negotiations of expertise.

Experts’ potential to influence court decisions has been studied before (Cole and Dioso-Villa 2009; Schweitzer and Saks 2007), but this investigation shines light upstream on interactions that determine access to expert authority. This article focused on three types of lawsuits, but there is reason to suspect that findings generalize to other cases, especially in civil courts. Specifically, the proportions of challenges to experts’ qualifications, reliability, and relevance found in this study are similar to the distribution of challenges in other civil cases (Dixon and Gill 2002). Furthermore, many cases in this study intersected multiple areas of litigation. For example, patent infringement cases frequently overlapped with trademark and copyright disputes, civil rights lawsuits were often related to retaliation and harassment charges, and medical malpractice litigation was commonly associated with other liability and negligence claims. Thus, the interconnectedness of these areas of law with many others is further evidence that expert credibility is negotiated similarly in other civil courts.

Although qualitative and case-based studies have examined the construction of credibility (Gieryn 1999; Henley 2015), less is known about broader patterns in the process. In addition, although researchers have identified gender differences in many aspects of expert labor, scholars have not yet examined how experts’ gender relates to perceptions of their credibility, especially outside of their own professions. This article extends these literatures with a variable-based analysis that pairs research on the construction of expertise with scholarship on gender and professions. Further studies are needed to examine whether gender stereotypes shape perceptions of experts in other contexts, but this article suggests that women and men may continue to experience different pathways to expert authority in court as long as wider cultural beliefs about gender and expertise remain.

Footnotes

Acknowledgements

This article has benefited from feedback from Brian Powell, Tom Gieryn, Scott Long, Ethan Michelson, Oren Pizmony-Levy, and Shiri Noy as well as from the Editors and anonymous reviewers at Social Currents.

Author’s Note

An earlier version of this article was presented at the 2013 Annual Meetings of the American Society of Criminology.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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