For way too many years, I have badgered and pleaded with you to tell a good story in your opening; a story so good that jurors would rather see your opening again than watch Season 6 of Schitt’s Creek.
Every good story-telling model is a template with these 6 essential ingredients:
All of these ingredients play their own distinct roles in persuading the jury.
Today, I’d like to examine #3, The Protagonist. Among the 6 ingredients, The Protagonist has the most unusual role. The Protagonist is the only one of the 6 that is not under your direct control. The Protagonist is the jury, not a party in the case, not a witness, not an expert, not a piece of evidence. Why is an “outsider” to the case The Protagonist, the main character in the story and not just an observer of the story?
- They are not outsiders—they couldn’t be more insiders. They decide the outcome. They propel the story of the case forward.
- Pick up any newspaper account of a trial and what does the first sentence say? “Yesterday, a Federal Jury found that . . .” It doesn’t mention the attorneys or the parties until AFTER it mentions the Protagonist.
- Further, imagine you are at a gathering with friends and you tell a cluster of them, “I just finished trying a case in State Court where my client was swindled out of a big lump of money.” And you stop. After the inevitable awkward pause, what will people ask? “What happened in the trial?” “Who won?” “Are you gonna tell us how it ended?” “How long do I have to stand here before I politely walk away?” Without the jury as The Protagonist, you have no story.
- Observers don’t need to care. Participants care because they will be accountable. Remember your attention span in class when the teacher said, “there will be a test on this” versus “this won’t be on your test?” You only really paid close attention when you were going to be accountable later.
Jurors are in a predicament. They are in an unusual setting and they don’t really know what their job is going to be. That is why, in opening, I encourage you to tell them their job in the first 3 minutes. Jurors can then relax and listen without the secondary worry of “what am I supposed to do?” niggling at them.
But, your work doesn’t end with the job description. Your persuasion begins before you ever relay a single fact. While all the other ingredients in the story model are there to persuade, The Protagonist ingredient is there to RECRUIT AND PERSUADE.
It is simple to tell jurors, “You are important to this story because you get to decide the ending.” They know you will try to persuade them to your side in rendering their verdict. That is the Persuade component. The Recruit component makes persuading more effective though. Think of it as the difference between player you recruited to be on your team as opposed to someone assigned to your team by someone else. The recruited player is typically more committed.
When you look at the origin of the word “Protagonist,” you find some interesting things:
- “Protagonist” is a word derived from the Greek meaning “First Struggler” or “First in Importance.”
- Sometimes the biggest struggles are not even about the case, but are rooted in their own emotions (i.e., how they will manage their home and work now that they are on the jury, parking, security, COVID, learning the case, witnessing conflict, the weight of making a decision)
- Protagonist is usually just an average person thrust into a situation in which they transform into a champion;
- To become the champion, they face the biggest obstacles and work through them (i.e., learning legal concepts and jargon, wrestling with unintelligible jury instructions, fighting their own idea of how the law should work versus the how it does work, understanding the nuances of the burden of proof)
- Protagonists are driven by a goal or a duty (civic duty, loyalty to fairness, duty to ignore sympathy, opportunity to make a statement);
- Protagonists allow themselves to experience change or a new situation, they don’t avoid the change (showing up for jury duty every day and recognizing the importance of the process);
In voir dire:
- Ask them about their fears about being on the jury [logistics, etc.];
- Ask them about duties they are committed to;
- Ask them about their own confidence in being able to learn the case in the midst of all these unfamiliar rules and procedures;
- Ask them about times in their lives when they were thrust into a new situation and how they handled it;
- Touching on these areas shows that you get it—you understand their predicament—you’re on their side
- After they learn the title of the story and where it took place, dive right into an explanation
- of their job
- and how they are classic Protagonists
- regular people thrust into an extraordinary situation
- there will be hurdles in and out of court to overcome, but you know they are up to the challenge
- Protagonists drive the story forward, they are not passive observers
- Your client drove the case to their lawyer;
- The lawyers drove the case to court;
- Now the Protagonist gets to drive the case to its conclusion
- “You, the jury, will do that when you decide that the proper resolution is [fill in your ending].”
The Protagonist ingredient is one of recruiting and persuasion tied into one. Showing the jury that you understand their predicament, sympathize with it, will help them through it, and that you are confident in them, transforms them from team-mates assigned to the task (by the state) to team-mates (you) recruited for the task.
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