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The Word Prosecutor: A Copywriter’s Musings on Jury Service

Recently, I received a jury summons and, as it is my civic duty, I made my way to 850 Bryant, the criminal courthouse in San Francisco, to see if the judge and attorneys would have me. The case, an attempted-murder charge, proved to be quite fascinating. (I’d tell you more, but I’ve sworn an oath not to speak about it.)

Spoiler alert: I was not selected to serve.

But the whole process did get me thinking: As a storyteller, I found the judge’s instructions to the jurors quite germane to business communications. You see, it could be argued that crafting business communications is oddly similar to prosecuting a court case.

Let me explain: All business communications are a form of argument in its most platonic sense. As a copywriter, I’m trying to convince my audience of my argument based on the evidence presented. If I say, “This is an apple. It is juicy and firm. And it will taste delicious,” I want the audience to say, “Based on the facts presented—juiciness, firmness, and deliciousness—I am suddenly craving an apple. I want that apple.” Which is to say, copywriters are arguably the prosecutors of the marketing world.

But where prosecutors seek external convictions, copywriters seek internal conviction.

Let’s explore this analogy a little further: The goal of jury selection is to impanel an audience that will be receptive to the lawyer’s arguments. As copywriters, we rely on marketers to find us a receptive audience—you don’t advertise automobiles during Saturday morning cartoons just like you don’t pitch Fruit Roll-Ups during the evening news. But, just as jury selection is a messy process, so too is targeting. In fact, this is why social media companies have grown into industry titans, because they claim they understand their audience better than anyone else. Too well for some people’s taste.

Of course, humans are fickle and wary apes and even the best algorithm can’t guarantee that a regular apple eater is in the mood for an apple the moment an apple ad is served up. That’s why copywriters still have jobs. If it was as easy as showing an apple to an apple eater, marketing firms the world over would go belly-up. Our job is really about convincing the chosen audience to pay attention, and then to take action. To get attention and drive action requires crafting a persuasive narrative that feels both truthful and emotionally compelling. These are rhetorical gifts that today’s machines still can’t match. It’s also why we don’t have robot lawyers…yet.

Our job is really about convincing the chosen audience to pay attention, and then to take action.

It’s here, perhaps, that my analogy begins to break down. But I’m nothing if not intrepid. So let’s move on from jury selection to the trials themselves. Let me propose that a copywriter is basically a prosecutor, while the target audience plays the roles of defense attorney, jury, and judge all at once.

What do I mean?

In a trial, the role of each participant is highly partitioned. The prosecutor, using the evidence available, is trying to convince the jury of what happened. The defense attorney’s main goal is to counter the prosecution’s arguments by creating reasonable doubt about what the prosecutor says happened. The jury’s job is to decide which argument holds the most water—who has told the better, more compelling, evidence-based story? And the judge, of course, decides what will happen next—the sentence or acquittal.

In the case of business communications, the copywriter’s audience is the defense, the jury and the judge all at once.

The defense attorney
The copy must counter the audience’s natural, defensive voice—the counterarguments that arise when we’re asked to believe something. Overcoming the inner “yeah, but…” is step one.

The jury
Next, you have to craft a narrative that is believable, logical, and emotionally engaging. The evidence you share to back up your pitch has to strike a chord. This is why copywriters and marketers often speak of proof points—the evidence must be compelling and the speaker must be believable. The medium, the brand, and the offer all come into play here. This is why branding, marketing strategy, and well-written copy are so important. It matters how people feel about your company. It matters that you target people who are open to your message. And it matters that what you’re telling them is engaging enough to cut through the deluge of other messages they’re getting from competitors and other brands. You need the jury on your side.

The judge
Finally, you want the audience to take a specific action—you want to instill conviction. This is the hardest aspect of marketing communications—getting the audience (the judge) to pass a sentence. In fact, according to MailChimp, the industry average click-through rate for marketing emails (the number of people who read the email and click the call-to-action button is just under 2.8%.* If a prosecutor had that conviction rate, they’d be out of a job posthaste. Then again, the audience has been told under threat of legal prosecution to pay attention and make a decision. In the marketing world, people are free to ignore you no matter how articulate or loud you are. It’s difficult to get them to care, which is why we work so hard to write copy and design communications that compel engagement.

It matters how people feel about your company. It matters that you target people who are open to your message.

None of this is to say that the stakes are the same between marketing and criminal trials. I’m a copywriter, not a dunce. But I do think it suggests that just as you wouldn’t represent yourself in a court of law, you shouldn’t go it alone in business communications. Let the experts make your case for you. Because there’s no appeal for a first impression.

* Johanna Rivard, “Email Marketing Conversion Rate Comparison,” Marketing Insider Group, March 8, 2018, https://marketinginsidergroup.com/content-marketing/email-marketing-conversion-rate-comparison//

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