The art of parenting and persuasion

Chicago Daily Law Bulletin – July 22, 2020
by Jeffrey J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny + Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases.

Having an 18-year-old son and a 12-year-old daughter can be really interesting … even under the most benign of circumstances! Under the glare of a pandemic, however, I have realized the more time I spend with them, they are so me — and so not me.

We may share likes and dislikes, but many of their interests are beyond my comprehension. Sure, I have been in a couple of TikTok videos with Lily and have engaged in a variety of activities with my soon-to-be at college son, Jack, and his friends until midnight. Yet, we are all fiercely individual in so many aspects, which makes me wonder how much I actually impact their choices — and ultimately their future. It also gives me a view from the side of judge and juror, one that is not my primary vocation.
That line of thinking leads me back to my own life and to the jurors we work with and how impactful they are on potential life-changing decisions for our clients. Sure, jury selection may not return for this calendar year, but as trial lawyers we need to stay sharp.

Like my children, jurors tend to lean toward the opposite of what you are trying to persuade them to do or think. It is human nature for someone to do the opposite of what someone is trying to make you do. Yet, we have to be careful not to lose objectivity because when someone, such as jurors, are being coercive or manipulative, we tend to retreat to what we know, not what others want us to know. That could very well be the exact opposite of what you are trying to portray.

Wisdom springs from reflection, folly from reaction. When you feel your tenet is being constrained or compromised, your inclination is to resist. In doing so you can overcompensate. There is something known as backfire effect. When your core beliefs are challenged, it can cause one to put even more confidence in their beliefs — and their corresponding reactions. In other words, do not criticize or publicly attack jurors. As Mark Twain said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”

Often, right or wrong, the first thing you judge influences your judgment of all that follows. First impressions matter. Be mindful of this self-bias during jury selection. Your initial thought is proven to have a significant effect on your thoughts of others. Human minds are associated in nature, so that the order in which you receive information helps determine the course of your judgments and perceptions.

I recommend being mindful of this bias during jury selection because that is the first judgment the jury gets of you not only as an attorney, but as a human being. The impression the Tierney Darden trial team made during jury selection anchored the jury to a potential $150 million verdict. This simple interaction influenced the idea of what a realistic verdict looked like for a client who had profound injuries. This first judgment of us by the jury was shared by the jury with a judgment worth $148 million. Our goal was to anchor them to the amount of $150 million.

Richard Feynman, a renowned physicist, once said, “The first principle is that you must not fool yourself — and you are the easiest person to fool.” We are primed to see and agree with ideas that fit our preconceptions and ignore and dismiss information that conflicts with them. This is known as confirmation bias. I have fooled myself too often with a potential juror. When selecting a juror, use your brain, not your ego. Too often we judge jurors on their character but opt to judge yourself on the situation. It is not only kind to view other’s situations with charity but be objective as well. Not doing so can be detrimental to your case.

The framing effect is where you allow yourself to be unduly influenced by context and delivery. All of us are, in fact, influenced by delivery, framing and subtle clues. This is why the ad industry is so powerful, despite almost everyone believing they are not impacted by sublime and subtle advertising messages. This is especially important as a trial attorney. Your context and delivery of your theme, your ad, as early as jury selection, can be the cornerstone piece to the puzzle.

After years of continuing to practice on the attorney side, it is refreshing and eye opening to be on the juror side from time to time when it comes to Jack and Lily. It is important we take lessons given to us by others, even if those “others” are our children, and apply them to our trial practice. Always remember our execution during jury selection and continuing through closing arguments will be the lasting impression that will shape jurors perspective of us, our client and the issue at hand. Taking a second to look through the other side of the glass might just be your ticket to a successful trial. Whenever these trials do come back.