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Just the Facts, Please
One crucial aspect of a legal reading, taught in all of the classrooms of this study,
is the selection of facts to create a new, legal narrative of the conflict at the heart of
the case. The word “facts” itself is an indication of the new legal framing: the judges
who write legal opinions will accept particular versions of what actually occurred
in the case, depending on the procedural stance of the case. If, for example, the
person being sued (the defendant) files a motion to dismiss the case before it has
actually gone to trial, then the question for the court is whether, under any ver-
sion, there is actually a “live” legal issue. Thus, in such cases, the court is supposed
to accept the version of the case that is most favorable to the person bringing the
legal action (the plaintiff). The statement of facts in an appellate opinion in such
cases, then, is not supposed to be a rendition that can be certified as factual in the
usual sense. Rather, the legal story told in such cases is a collection of the plaintiff ’s
allegations that, taken together, would give him or her the best shot at making a
supportable legal claim.
Correct readings of such cases require a suspension of disbelief, an epistemo-
logical hedging that is quite different from the underpinnings of the “conflict sto-
ries” generally found outside of legal fora. When average speakers tell stories of
Learning to Read Like a Lawyer
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conflicts in which they suppose themselves to be somehow wronged, they may put
emphasis on the actual truth of their account of events. This emphasis can be seen
in linguistic markers designed to assure listeners of the epistemological strength of
speakers’ claims. In addition, speakers draw on a wealth of cultural warrants through
which blame and responsibility are allocated, which include moral claims and
emotional contexts.
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These cultural warrants dictate to a large extent which de-
tails will be selected in telling the conflict story.
By contrast, as we have seen, legal accounts of conflict are centered on war-
rants derived from layers of legal authority. This not only directs the reader to dif-
ferent details in recounting events. It also means that the very epistemological status
of the facts as recounted depends on layers of legal authority. On the one hand,
there is a far more modest claim as to the factual authenticity of these recounted
events than in everyday trouble telling. The claim is not a strong assertion that these
events actually occurred. Rather, the claim is that this version of what occurred is
to be accepted as true, based on the legal status of the case. If the case has already
gone to trial, and a jury has accepted one party’s version of the facts, then that is
the version we must accept in reviewing the case at an appellate level. The jury may
have been mistaken in its weighing of the evidence. But unless there is a very bla-
tant indication that it overstepped its prerogatives, we are to adopt the version of
the facts accepted by the jury.
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Just as in cases involving motions to dismiss, the
status of the story told in the facts is thoroughly hedged and defined by issues of
legal authority.
At the same time, a statement of legal facts contains a highly determinative
epistemological claim. More than would be possible in everyday discourse, a court,
in stating the legal version of what has occurred, is rendering an authoritative ac-
count. Whether or not events actually occurred in this way, this is the version of
what occurred that has been declared to be legally accepted. It is therefore the ver-
sion of the story on which any legally sanctioned action will be taken. From this
vantage, we see that the selection of the word “facts” to describe legal storytelling
is an apt index of the definitive social power entailed in this process. In each case,
a combination of procedural and doctrinal or similar legal warrants delimits which
versions of what occurred (and indeed, which aspects of the events in question)
will be included in a set of legal facts. When students are called on to recite these
facts, they are learning to create a new, legally defined narrative of “what occurred.”
This narrative is at once quite modest and highly authoritative as to epistemologi-
cal certainty, and students must undergo a quiet but radical reorientation in their
readings. In one sense, it really doesn’t matter what occurred, because all we can
know is what the legal decision maker has accepted as fact for certain purposes. In
another sense, an accurate reading of the facts, replete with quite particular, le-
gally relevant details, gives students a new power. They now know how to construct
versions of conflict stories that can be understood by legal authorities and given
legal effect.
These aspects of fact construction can be seen in classroom exchanges. On the
one hand, professors will push students to enunciate details that seem picky in the
extreme. In the following exchange, an otherwise well-prepared student bogs down
when asked for such a detail, one that is important to the resolution of the case but
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Similarity
that might easily escape the eye of an average lay reader attempting to tell the story
of a conflict between people:
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