On lifelong learning and fact sections
How Richard Lanham taught me something new about legal storytelling
At a certain point in a career, it becomes possible to coast on accumulated expertise and handle most tasks on autopilot. By the time I published Elegant Legal Writing, I had generated enough material — notes, drafts, presentations, and the like — to give talks, write content, and otherwise stay relevant as a legal-writing expert without pushing myself further in that domain. I’d never run out of things to say. But standing pat is boring. I prefer to grow by studying new material with a novice’s mindset.
That’s why I became a lawyer and writer in the first place. I love to learn and teach, and law and language are inexhaustible. They also intersect with other inexhaustible subjects (history, philosophy, psychology, literature, and so on) that I regularly find excuses to explore.
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There is a special pleasure in suddenly grasping advanced ideas that previously resisted understanding or in seeing familiar subjects in a new light. I had one such epiphany while reading Richard Lanham’s Analyzing Prose. It deepened my understanding of fact sections — a topic not covered in Lanham’s book, and one about which I thought I had nothing left to learn.
Writing fact sections in legal briefs is its own art. I explained most of what I know about it in chapter nine of Elegant Legal Writing (“Legal Storytelling”), but the essence is this: you must tell a story limited to the available and admissible facts and aligned with your legal theory, yet naturally evoke the judge’s intellectual and emotional responses, inclining the judge to rule for your client — all without making arguments or overt emotional appeals. This is difficult to do and to teach.
Parataxis for fact sections, hypotaxis for argument sections
Lanham explains the rhetorical concepts of parataxis and hypotaxis. Paratactic sentences omit relationship-showing connectors like “because” and “therefore,” while hypotactic sentences include them. Compare “I was late for the meeting; I forgot to set my alarm” (paratactic) with “I was late for the meeting because I forgot to set my alarm” (hypotactic). A paratactic style places information side by side and allows the reader to infer how the pieces connect. A hypotactic style, by contrast, organizes and ranks information, explaining how the elements relate within a hierarchy.
In well-written briefs, there should be a stylistic shift between the fact section and the argument section. One shift occurs at the level of syntax. Fact sections should generally be more paratactic (juxtaposing observations without analyzing or ranking them). Argument sections should be more hypotactic (using subordinate clauses and similar devices to show how different sentence elements interrelate).
The hypotactic impulse to explain how facts relate — what causes what, what matters more than what — belongs to argument, not description. A fact section that is too hypotactic sounds argumentative. For example, connectors like “because” may inject the writer’s view that X caused Y, rather than just describing X and Y and allowing the reader to draw their own conclusion about causation.
Likewise, an argument section that is too paratactic — confronting the reader with assertion after assertion, citation after citation, without imposing a logical structure — is unlikely to persuade. The reader will be too mentally busy to be moved. They’ll be forced to do work the writer shirked: organizing raw materials into a coherent argument.
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Epiphanies aren’t often available to people who consider their education complete. That’s why I keep working to build my understanding of rhetoric, style, linguistics, and grammar even after years of teaching and writing about them. Progress requires regularly confronting how inadequate my knowledge remains, but ego bruises are a small price to pay for increased understanding.
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Ryan McCarl is a partner of the business litigation firm Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024). For more tips about legal writing and argumentation, subscribe to the Elegant Legal Writing blog and follow Ryan on LinkedIn. McCarl’s book is available on Amazon and Audible.
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