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Jury trials are very much an affair of stories. Lawyers tell stories to juries. Evidence is more convincing when presented in story order. Jurors use stories to make sense of evidence. And litigants, particularly losing litigants, tell stories about juries. One of the favorite stories of losing business litigants, second only to the irrational jury story, is the Robin Hood story. Juries love to play Robin Hood, to steal from the rich (businesses and insurance companies) and to give to the poor (individual litigants, especially individual tort litigants). The storytellers see no mystery here. Jurors are "little guys," like the plaintiffs who bring cases against businesses. They are emotional human beings. It is only natural that their verdicts will be affected by sympathy for severely injured plaintiffs, that they will favor people over businesses, and that they will see virtue in taking money from rich defendants and giving it to plaintiffs whose injuries may have placed them in desperate financial straits.

It is similarly no mystery why losing business litigants tell the irrational jury and Robin Hood stories. People draw on familiar scripts when they have something to explain. Losing litigants have something to explain, for the very act of going to trial suggests they do not believe the evidence is against them. The irrational jury and Robin Hood stories also allow lawyers to deflect the blame for losing from their own performance, and circulating these stories makes lawyers' jobs easier, for it helps them to persuade business clients to settle cases that the clients, but not the attorneys, expect to win.


Reproduced with permission.