Facts don't exist without stories

Wittgenstein's Duck Rabbit

"Words are not defined by reference to the objects they designate, nor by the mental representations one might associate with them, but by how they are used."

Facts don't exist without stories. A fact is a phenomenon differentiated from other things by the story attached to it, by what we say it is. That is, we give phenomena meaning by giving them stories.


The lawyer's realm of expertise--where the lawyer adds value to people's lives-- is in crafting stories for the patterns of phenomena before them that are cognizable by substantive legal principles. A lawyer's zeal is most beautifully expressed in telling stories that place the facts before them in categories that interact to require a logical end in favor of their client.

Consider the following. Imagine a government lending institution that sells bond-like certificates of participation on the capital markets to investors, and then channels that money to an overseas entity. Imagine further that the government lending institution guarantees the repayment of the principal and interest to the holders of the certificates. Imagine further that the government entity's guarantee is risk-less, that is, unless Jesus rides in on thunder and lightning and destroys this world before the maturity date of the certificates, their holders will be repaid. Imagine further that the country of that overseas entity requires that a tax be paid in order to get a stamp on the documentation of a loan from foreign individuals for the documents to be admissible in court in the event of an enforcement scenario. Imagine further that there is a bi-lateral investment treaty between the government of the lending institution that is guaranteeing the certificates and the country of origin of the overseas entity that is borrowing the money which waives the tax in question for the government lending institution. If you are the foreign government, you may want this tax to be paid. If you are the borrower, you probably don't want to pay the tax. The issue is thus: Who lent the money?

One story you could tell is that, in substance, the money is coming from the investors in the certificates. That even though the money is channeled through the government lending institution, the money is still coming from private parties, thus the documents need the stamp as a precondition for admission to a court in an enforcement scenario because the individual holders of the certificates are the actual lenders of the money. Any lender will want their documentation to be admissible in court. So, if this is the story that prevails, then the borrower will have to pay the tax.

Another story you could tell is that even though the capital is coming from these certificate holders, they bear no risk and thus are not really lending the money to the overseas entity. Risk, the story would go, must be taken on by the entity(ies) lending as a precondition for the categorization as "lender." In the absence of such risk, therefore, an entity cannot be considered a lender. Thus, the holders of the certificates are not really lenders. This could be (at least the beginning of) the story you would tell if you didn't want to pay the tax.

A lawyer is given a task to advocate for this or that. They then become storytellers, manipulating the phenomena of the world around them and fitting them within the categories cognizable by the relevant substantive law. They exploit the margins of meaning within the language of the substantive law and tell stories to expand or contract that margin, fitting the facts within or outside the categorical boundaries they've created according to their desired end. They tell two stories: one describing what categories there are and what those categories are like, and another describing the particulars in question in light of those categories. Lawyers lay out the facts, that is, tell the story, in such a way that the only conclusions possible are those consistent with the goals of their client. The best storyteller wins.