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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 14, 2023

Like every state, Oregon is divided in a number of ways: there are the urbanites vs. suburbanites, red counties vs. blue counties, vegans vs. vegetarians vs. carnivores, and finally there are Ducks and Beavers.

Right now, as these disparate Oregonians sit down to watch ESPN, none of the labels, none of the divisiveness, none of the animosity matters. We are all united, rooting for Marcus Mariota to win the Heisman Trophy. Why?

Turns out, everyone loves a nice guy – everyone wants to support a winner, and Marcus Mariota is that guy. Watch the television coverage or read about him in the papers, and you’ll notice a common theme: Mariota is universally liked. That’s difficult to achieve as a collegiate or professional athlete; there’s always something to use as ammunition, like “He’s too cocky,” “He’s too selfish,” or “He’s a trouble-maker.” With Mariota, that worst thing I’ve seen is that he got a speeding ticket about a month ago. But get this, he was heading home after speaking at the Boys and Girls club after staying late hanging out with the kids.

The ability to win the support of your adversaries – to get a die-hard Oregon State Beaver to support an Oregon Duck – can be critical in trial. Mariota shows us that there are certain transcendent traits, individuals, and values; a Beaver’s dislike of the Oregon Ducks becomes secondary to that Beaver’s motivation to support a nice guy like Mariota.

Every case needs someone to root for, like a Marcus Mariota. For our purposes, your “Marcus” could be a person, but it could also be an idea or a value worth fighting for. A good Marcus will minimize many other issues in your case since rooting for Marcus becomes more important than everything else. It reminds me of an elderly gentleman participant in a mock trial, every time someone tried to attack his position, he simply asked, “What about justice?” Justice was his Marcus – his value – and a vote for the defense would not advance justice.

In a recent case strategy session I was struggling to understand the technology in a very complex patent infringement/validity case. I realized that my problem wasn’t that I couldn’t understand the technology; it was that I simply didn’t care about it. I needed a Marcus – a reason to want to defend the accused company. We found a Marcus, and we created a framework around that value and the person that most embodied that value. With a Marcus to fight for, jurors will be more motivated to care enough to learn about the complex technology.

This isn’t a difficult or new concept. We all know jurors need a reason to vote for you, or perhaps a reason to vote against your opponent. It’s so easy to get bogged down in the legalities, technicalities, and minutia that we lose sight of what our case should really be about: “Rewarding the true innovator,” “Protecting consumer choice,” “Accountability for one’s poor choices,” or simply “justice.”

At the end of trial, jurors aren’t going to like everything about your case. There will always be gaps to fill and troubling facts. But with the right Marcus, jurors can be motivated to overlook those things. I never thought I’d see my sister-in-law, a proud OSU graduate, say anything good about U of O, but even she couldn’t resist rooting for Duck wins so that Mariota had a better shot at the Heisman. That’s the power of the nice guy: everyone wants him to win because if he doesn’t then something is wrong with the system.

In case you haven’t heard, he did win. And even the OSU Beavers couldn’t resist congratulating him in a very public way.

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