All-Star Tip: Embrace adversity

By Marc Diller, written for Massachusetts Academy of Trial Attorneys

Why do Plaintiffs’ trial lawyers fear that jurors will judge unfavorably our clients’ pre-injury adversities? It’s time we embrace our clients’ hardships and make them part of our cases.

We are trial lawyers. We tell human stories. There’s nothing more human than overcoming adversity in life. Our clients may not be superheroes. It’s time, however, we start seeing them as ordinary people accomplishing extraordinary things, especially in the face of adversity. That’s the human spirit. That’s heroic. Your juries will agree and will reward them for it.

Do you watch “American Idol?” Why do I ask? What does American Idol have to do with plaintiff trial lawyers? How do TV producers get the audience so invested in the show? Let’s see if there are lessons plaintiff trial lawyers can learn from the show. For those that don’t know, “American Idol” (AI) is the OG of TV singing competitions. It’s the original nationally televised live singing competition, where the audience votes for the winner, who signs the $1 million music contract. One lesson for us is to embrace adversity. During the first weeks of the show, the audience meets the potential contestants. Before we hear contestants sing, we meet them and learn about their past — the adversities in their lives and their struggles. Some contestants faced homelessness. Others battled disease, isolation, domestic abuse, the loss of a family member, addiction, being a single parent, and so on. After we, the audience, connect with the contestants’ fight to overcome past adversity, the show introduces who the contestants are “today.” Then we get to hear them sing. By the time these contestants make it to the live voting rounds, we know all about the contestants’ past struggles and we’ve been exposed to their fighting spirit in this competition, and their drive to get to this point.

Another lesson is to understand what makes people care enough to vote for strangers. Why do you think people (other than teenagers) vote for AI contestants? I believe it has little to do with the contestants’ singing voices. I believe the audience votes for these complete strangers because they want to be part of the contestants’ success stories. The audience connects with the contestants’ struggles and appreciates their fighting spirit. They want to see their favorite contestants succeed. They know the journey is hard, but can be made easier if their favorite contestant wins this competition and lands the $1M contract. The final steps in the contestants’ journeys to put adversity behind them and to succeed notwithstanding these hardships requires our vote. We, the audience, vote. We do so because we believe our votes matter. When we vote, we get to feel as if we are apart of our favorite contestant’s success. We feel like we are part of the story.

What does this all have to do with our job as plaintiffs’ trial lawyers? The voting audience is the jury. The contestants are our clients. We speak to juries. We ask them to care about our case and client. We ask for their votes. Why not follow the AI formula?

Our clients have histories that pre-date the life-altering injury that brings them to us. We need to understand that past. We need to embrace our clients’ pre- injury struggles. We should show jurors that our clients were fighters before this injury. We need to show jurors that the injury may be significant, but it doesn’t stop our client’s fight.

Now, the fight to get back on the path they were on before is harder. Again, our clients don’t give up. This injury caused by the wrongdoer set them back again and made the struggle harder. But our clients are determined to overcome this adversity too. This time, however, the client needs the jurors’ vote to get where they need to go on this hero’s journey. How do we do this? Find the human-interest stories of our clients. Give jurors the tools to connect with your client’s struggle. Give them a reason to vote for your client’s success in the verdict. Let those jurors become part of our client’s success story with their votes. Run focus groups on non-lawyers’ reactions to your clients’ past, their struggle and determination. Let your clients’ heroism guide you in your next case.

Full transparency: I’ve only voted once (for Taylor Hicks) in 20 seasons of AI. Nevertheless, I still watch as a fan and admirer of its ability to tell the human story of heroism and overcoming adversity.

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