What Penguins Can Teach Lawyers About "Minding the Gap".

Forget the inauguration.  This Friday, January 20, 2017, is National Penguin Awareness Day!  I swear, that’s really a thing.  Google it.

So, what do penguins have to do with lawyers and their clients? I’ll get there.  I promise!  Read on.

Would it make our jobs easier if our clients, particularly those that will one day sit before a jury or judge, were always attractive, articulate, and eminently likeable?  Probably.  But no one said this job was gonna be easy.
The reality is, our clients are good people in a bad situation.  But they are often as different as night is to day from those that hold the power to determine their fate.  They have been accused of bad, sometimes unspeakably horrible, things.  They may look different. They may have lived totally different lives.  They are suffering.  They can be “unlikeable”. They are perceived as “the other”.

No matter who our target audience may be, our charge as lawyers is to “mind the gap” and make the decision makers connect with, understand, and yes, even root for, “those people” we fight for.    

Can we use time-tested story techniques to make that happen?  You bet your feathers.    

We must first learn the important difference between SYMPATHY & EMPATHY.

Although your clients’ allegedly bad deeds and big differences may create an impediment to sympathy, that is actually okay.  Sympathy doesn’t win cases.  Empathy does.  So, what’s the difference?

In order to understand this crucial distinction, we turn to Screenwriting Guru Robert McKee.  In his great book, “Story,” he stresses that in the most compelling stories, the main character (in this case, the client), “must be empathetic, but he may or may not be sympathetic.”  He defines the term “sympathetic” to be synonymous with “innate likability.” In the movies, we’re talking about folks like Tom Hanks or Julia Roberts.  The moment we see them, we like them.  They are exactly the kind of people we’d want to have over for dinner, or be a part of our own family.  Robert McKee, Story: Substance, Structure, Style, and the Principles of Screenwriting, at 141 (Harper Collins 1997)(emphasis added).

Empathy, McKee explains, evokes a very different, and far “more profound” response.  When a character is empathetic, we see something of ourselves in them.  In other words, “[d]eep within the protagonist [client] the audience recognizes a certain shared humanity there’s something about the character that strikes a chord.” Id.

After we uncover the story of our case (more commonly called the theory), the next, even more crucial step, is to figure out the story behind the story.  What is the deeper emotional truth you are trying to tell?  These are the things woven into the very fabric of our being; things we know in our heart to be true.  These are the things that make your client empathetic.

The very best stories subtly invoke these truths to create emotional connections.  Once those connections are forged, decision makers will not just hear, but feel the truth.  And, the way we bridge the gap is through stories that tap into shared experiences and shared values.

McKee elaborates:

The unconscious logic of the audience runs like this: ‘This character is like me. Therefore, I want him to have whatever it is he wants, because if I were he in those circumstances, I’d want the same thing for myself.’


If you are confused about any of this, I give you permission to leave work – right now – and go see a movie.  Go on.  It’s okay.  It’s professional development, I swear. In fact, I’ll even recommend one for you:  March of the Penguins.  See, I told you we’d get to the penguins!

This National Geographic documentary will teach you everything you need to know about empathy-based storytelling.  Hardly the makings of Hollywood blockbuster, March began its life as a small French-produced nature film exploring penguin mating rituals in Antarctica.  Are you still awake?

That little penguin pic won the Academy Award for Best Documentary in 2005 and went on to become the second highest grossing documentary of all time.  (Any guesses about the #1 highest grossing doc? – the first person to post the right answer in the comments below will receive a DVD of March of the Penguins for their very own!)

What is the secret sauce to this movie’s smash success?  When asked about the key to making a compelling wildlife documentary, March’s director Luc Jacquet said, “[e]motion.  If you don’t feel something when you’re out in the wild, there’s no film.  That’s the basis for everything.” Genevieve Jolliffe and Andrew Zinnes, The Documentary Film Makers Handbook, 1st ed. 497 (Continuum 2006).

Cuteness did not carry the day here– that’s the “sympathy” factor, i.e., “likeability”.  And this wasn’t about us feeling sorry for the little arctic furballs.  Sure, they faced extraordinary survival challenges – but most animals in the wild do.  Who cares?

This  movie, at its core, was really a story about what it means to be part of a family.  It was a spiritual echo of the stuff of life; a truth from which we cannot turn away — that parents will go through hell and back in order to provide for and protect their children.  We are part of the collective mission to carry life forward from generation to generation.

The reason March made millions is because the filmmakers built the bridge of empathy by telling the story in a way that revealed the universal human truth about their heroic journey.  In so doing, we identify with their struggles and their triumphs, in a fundamental, almost primordial, human way.

We care so much about these creatures because their story “strikes a chord” deep within ourselves.  We’ve all been a parent or a child.  We have all lived that story to some degree.  Because of this shared experience, we cannot help but become emotionally invested.  We are all in, and we want them to win!

Coming next week to a blog near you:  Part II of The power of empathy-based story telling; where we sit down together for a lovely meal of liver, fava beans, and a nice Chianti…

Sharing is caring!


  1. Mark Andersen on January 20, 2017 at 4:43 pm

    Fahrenheit 9/11

    • doug@dougpassonlaw.com on January 22, 2017 at 8:11 pm

      Nice Work Mark! Send me your address and i will mail you your prize!!!!

  2. Penelope Price on January 22, 2017 at 1:26 pm

    Great discussion of empathy! And nice references. Also really like the humor…the penguin motif. Hope you talk about sympathy vs. empathy when you visit our class next! Thanks for the good read! xoxop

    • doug@dougpassonlaw.com on January 22, 2017 at 8:16 pm

      Thank you Penelope! I will! Spending time with you and your awesome doc students is one of my all time favorite things to do 🙂

  3. Jordan Passon on January 23, 2017 at 10:41 am

    Doug, I found this super compelling – a great lesson for all storytellers, not just those that do their work in a courtroom.

    • doug@dougpassonlaw.com on January 24, 2017 at 9:13 pm

      Thank you!! Stay tuned for Part II… coming tomorrow! Thanks for reading me. Hope Sundance was a blast.

Leave a Comment