Critical Thinking – An Essential Skill

As so often happens, Marianna Fradman has started an interesting discussion on LinkedIn. This time her post is on The Paralegal Society’s discussion board. Here post consists of a single question and a link to an article in the Wall Street Journal,Bosses Seek ‘Critical Thinking,’ But What Is It?.” Her question is, “How do paralegals define this skill?” In a later comment she also asks, “Does it mean that ALL paralegals have to possess this skill? How to measure it?” Here are my initial thoughts on the first two questions:

The ability to solve problems and “connect the dots” is a good way of describing the concept of critical thinking, but critical thinking involves a particular approach to problem solving. I like the way that approach is set out in this quote (I can’t remember the source for sure, but I think it’s from S. Contrell’s work:

Critical thinking means “weighing up the arguments and evidence for and against”. It involves:
• Considering an issue carefully and more than once
• Evaluating the evidence put forward in support of the belief or viewpoint
• Considering where the belief or viewpoint leads – what conclusions would follow; are these suitable and rational; and if not, should the belief or viewpoint be reconsidered? Critical thinking goes hand in hand with analytical thinking.

Critical thinking is essential for every good paralegal. It is what separates a paralegal from other support staff in a law office and makes them a member of the legal team. It is the second principle of my first book, The Empowered Paralegal: Effective, Efficient, and Professional:”

The second principle has to do with the way the paralegal approaches any and all aspects of paralegal practice. It is a proactive rather than reactive approach. It seeks to understand and manage even those aspects of practice that the paralegal cannot control. This principle involves taking a rational empowered approach.
While the specifics were different in each of the chapters, in each chapter of this book we identified the areas of concern, analyzed each aspect of that concern, set priorities that addressed those concerns, sought a greater understanding of the area of concern, investigated solutions and barriers to those solution, and established procedures for implementing solutions and removing or overcoming barriers to those solutions. We did so in a direct, rational and professional way. We did so in a way that honored our own need to be efficient, effective and empowered, and honored the interrelationships and responsibilities of the first principle.

Critical thinking can be learned, but only through practice. You can’t just read about it and expect to become proficient at it. Legal professionals have some help in this regard since the methodology of legal reasoning, statutory interpretation, and case analysis all incorporate a critical thinking approach to solving problems. Therefore, we practice critical thinking each time we do one of these tasks. As we do more the task, we become more practiced in the skill. Perhaps more than anything else in our Paralegal Studies Program, the demand that our students engage in critical thinking exercises separates the program and our students from those described in the article:

According to research detailed in those books, students rarely study on their own for more than an hour a day, and most don’t write in-depth papers that require sustained analysis.

For their part, students seem to think they are ready for the office. But their future bosses tend to disagree. A Harris Interactive survey of 2,001 U.S. college students and 1,000 hiring managers last fall found that 69% of students felt they were “very or completely prepared” for problem-solving tasks in the workplace, while fewer than half of the employers agreed.

Judy Nagengast, CEO of Continental Inc., an Anderson, Ind., staffing firm, says she has come across young graduates who “can memorize and they can regurgitate” but who struggle to turn book learning into problem solving at work.

Students successful in our program can perform well beyond memorization and regurgitation, because they are required to practice critical thinking on a regular basis. This leads to a bit of a paradox: Although they are more prepared for the office than students who can only memorize and regurgitate, they are apt to see themselves less prepared because they know what the expectations are!

It’s a matter of history.

I am engaged in a historical research project tracing the development of paralegal practice and the paralegal profession during the 1950s through the 1990s. (I’m working on a Masters in History. This project will start as a potential journal article, expand into my thesis, and possibly a book.) I am interested in state, local, and national paralegal association newsletters from that period and other documents – news stories, minutes of minutes, letters, etc. – that might provide information on what it was like to be a paralegal or legal assistant (even if you did not have that title) during that time. Early issues of magazines such as “Fact & Findings,” and the like would also be helpful. Contact me here or via email if you have documents or other information that might be helpful and you are willing to share. Ultimately, I’d like to interview some of the paralegals who practiced during that time period, so please let me know if you would be willing to be interviewed regarding your background, how you entered the legal profession, your first jobs, etc.

Should lawyers be nicer to their paralegals?

Above the Law has a nice post by Joe Patrice entitled, “We Should All Be Nicer To Our Paralegals.

Law firms routinely abuse paralegals. You remember the paralegals, right? They’re the fresh-faced youngsters who inexplicably think it might help their future legal career to spend a couple of years compiling binders full of documents that lawyers will look at once and discard. Or most likely forget about and make the paralegal do again four months hence. At least they make overtime when caught in the thresher maw. But other than a slight bump in pay, paralegals don’t get much appreciation for doing all the tasks lawyers would never be caught dead doing at 2:00 a.m.

His comments are followed by a bunch of memes to describe the job of a paralegal compiled by Legal Cheek.

Kudos, Mr. Patrice and Above the Law!

Legal Careers Rx for non-attorneys

Mariana Fradman, MBA Senior Real Estate Paralegal at Kaye Scholer LLP and NYCPA Treasurer, Mentor Program & CLE Chairperson (NYCPA is an exemplar of what paralegal associations can be. An excellent set of officers! Check it out even if you are not a New York City paralegal.) announced through the NYCPA LinkedIn discussion board a new LinkedIn Group:Legal Careers Rx for non-attorneys.

The announcement is brief, so I’ve included it all here:

In less than two weeks, over 900 paralegals joined the group. The group is about career strategies, job search techniques, resumes, workplace situations, stress/burnout, virtual paralegals, promotions & more.

Paralegal Warrior Challenge

If you are looking for a reason to be thankful today, perhaps you can be thankful this is not a part of the standard law office role for paralegals:

USARPAC paralegal Soldiers committed to ‘warrior trials’

The top paralegal Soldiers throughout the Pacific region participated in the seventh annual USARPAC Paralegal Warrior Challenge, Sept. 15-19.

The Paralegal Warrior Challenge tested Soldiers’ mental and physical resilience as well as their military occupation specialty knowledge. The challenge was held at multiple locations across Schofield Barracks, Fort Shafter, and Aliamanu Military Reservation, Yongsan, Korea.

“The challenge is designed to test our paralegals that have shined throughout USARPAC and try to identify the best warrior paralegal in the command,” said Sgt. Maj. Craig Williams, Fort Lauderdale, Fla., native, Command Paralegal for I Corps. “The Soldiers are learning a lot about themselves and some are finding that mental toughness that they didn’t know they possessed.”

The five-day warrior challenge began like most challenges and that’s with an Army Physical Fitness Test. After the APFT, the Soldiers had to conquer a swim challenge. The following day consisted of an M16 range where noncommissioned officers had to qualify on the M16 and M9. The Soldiers also had to complete a 4.2 miles foot march in 45 minutes. The USARPAC paralegals had multiple written exams to take and a board. To prove their Soldier abilities, they had to perform several warrior tasks and drills.

At the end of the five-day competition, all participants received certificates of achievements and coins of excellence. The overall competition winners received Army Commendation Medals and plaques.

For the Soldier that scored the highest on the APFT that Soldier would receive the Iron Soldier Award. This year Sgt. Chris DeFrancisco, assigned to 8th Army in South Korea, earned the Iron Soldier award for scoring 334 points on the extended scale.

DeFrancisco also won the overall competition and became USARPAC’s 2014 Paralegal Noncommissioned Officer of the Year. Spc. Glen Swanson, assigned to the 25th Infantry Division, was named USARPAC’s Paralegal Soldier of the Year.

Virginia Paralegals’ Week

Last week I finally  added the Virginia Alliance of Paralegal Associations to my blogroll in response to a June request from Karen Axell, RP, President of VAPA. While looking at the site I noticed this: Governor Terence R. McAuliffe proclaims October 12-18, 2014, as Paralegals’ Week. The Governor’s proclamation includes several reasons for the week including recognition that “the research and administrative duties performed by paralegals are essential to the ability of attorneys to provide their clients with quality legal services.

OLP eDiscovery and LitSupport Certification Exams‏

I am on the Advisory Council for the Organization of Legal Professionals, although they get along quite well without much advice from me as evidenced by this from a LinkedIn article by Damian A. Durant, J.D., Rise of standards & certifications key to e-discovery partner selection – Part 1:

We are finally seeing the emergence of industry standards and professional certifications as the e-discovery industry continues to mature. The recent California Bar advisory opinion on e-discovery competency drew much attention and is the most recent example of the trend.

“A corporation or law firm selecting an e-Discovery or Discovery Management partner should determine if the partner has enough qualified, certified personnel and implements industry standards into their practice.”

….

Any would-be client should require independently certified individuals across the staff of the prospective partner and in the service delivery teams assigned to their work.

  • The Organization of Legal Professionals (OLP) also offers a widely respected certification called CeDP (Certified E-Discovery Professional) and the CLSS (Certified Legal Support Specialist) certificate. OLP also now offers an E-Discovery Project Management certificate. The Association of Litigation Support Professionals (ALSP) in lieu of developing its own certification, recommends the OLP certification to its members.
  • The Association of Certified E-discovery Specialists (ACEDS) offers perhaps the most widely known e-discovery competency certification known as CEDS (Certified E-Discovery Specialist). Public sources suggest over three hundred people have the CEDS qualification.

Both OLP and ALSP in their mission statements emphasize standards and certifications, but ACEDS only secondarily. Of course establishing standards and certifications is challenging for even much larger professional organizations.

OLP and ACEDS reportedly utilized teams of experts to develop bar-like multiple choice exams that try to cover the complete Electronic Discovery Reference Model (EDRM), from information identification through document production. As such, ACEDS and OLP are the leading providers of e-discovery certifications, but expect other non-profit organizations to enter the certification arena soon.

Clear and Concise

A good deal of our paralegal studies program at the University of Mississippi focuses on developing the ability to write clearly and concisely. (I am fortunate enough to have been given an internal grant from the Center for Rhetoric and Writing to improve  our ability to improve students’ writing ability.) It helps to explain why clear and concise writing is important before attempting to teach it. My explanation usually includes references to page, line, and word limitations in rules of procedure, but while the students read those limits, it seems students and many practicing legal professionals often do not believe the limits are enforced. That’s why I am passing on this story from abajournal.com:

Judge scolds BP for squeezing extra lines into brief

Posted Sep 18, 2014 09:50 am CDT

By Debra Cassens Weiss

BP is on notice that a federal judge will be closely scrutinizing its briefs for excess words in litigation over the Gulf oil spill.

In an order (PDF) on Monday, U.S. District Judge Carl Barbier said BP evidently abused a 35-page limit by slightly squeezing the spacing between the lines. The limit was already 10 pages longer than usual, and it called for a double-spaced brief.

As a result of the manipulation, Barbier said, BP exceeded the already enlarged page limit by about six pages. Slate and NPR have stories.

“The court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this,” Barbier wrote. “Counsel are expected to follow the court’s orders both in letter and in spirit. The court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

“Any future briefs using similar tactics will be struck.”

BP is represented by several law firms, and Barbier did not identify the firm at fault. He does, however, reference the Pacer number on the offending brief, which was submitted under the electronic signature of Kirkland & Ellis lawyer J. Andrew Langan. A Kirkland & Ellis spokesperson did not immediately respond to a request for comment. Langan said he would refer the ABA Journal’s request for comment to the appropriate person.

One comment states:

Instead of word processing tricks, I suggest go ‘old school.’ Consult an early version of Strunk and White’s “Elements of Style” and learn to write using fewer words.

I agree. I suspect Celia Elwell, The Researching Paralegal, also agrees, since she frequently posts articles such as this: Classic Writing Tips from C. S. Lewis

 

I looked up your LinkedIn profile and Facebook page

The title of this post is stolen from the first line of reason number two for not hiring an interviewee for a job published by The Estrin Report. Much of what she has to say also applies to persons who already have a job as a paralegal, but can’t understand why they are not advancing, not more respected, etc., so I’ve copied below the entire reason number two. The rest of the article, “10 Reasons Why I Won’t Hire You” which is well worth reading in its entirety.

2. I looked up your LinkedIn profile and Facebook page before I invited you to interview.

You may think employers are checking Facebook to see if you’re that 20-year-old posting pictures of you and your buddies wildly drunk at a party. Or, they say they avoid Facebook because it is a “social” situation and not relevant. Not quite. They peek anyway. How you behave in some social settings can spill over into your social skills in the office. How about where you got into a public argument on your FB page with Sally over some petty little thing? Remember how it escalated into the War of Words? It was all about your criticism of typos in her posts.

Was that your attempt at leadership? Hmmm. It probably wasn’t the wisest thing to publicly tear someone down, and I wasn’t particularly fond of the fact you encouraged your FB friends to jump in and defend you. Not my idea of a leader. Here’s an indication of what situations may show up on the job. Red alert! No thanks.

Oh, and by the way, LinkedIn showed different dates and firms than what’s on your resume. It didn’t seem to be updated, either. No thanks, once again.

F

Paralegal lauded for former nursing home owner prosecution

Yes, the other members of the legal team – federal prosecutors and an investigator – were lauded also, but the fact that the paralegal was included as an active member of the legal team rather than just an appendage to it is significant:

Assistant U.S. Attorneys Glenn D. Baker, William G. Traynor and Dahil D. Goss; Investigator Donna J. Davis and Paralegal Specialist Barbara A. McIntosh received a Director’s Award for Superior Performance by a Litigative Team for their investigation and prosecution of Houser for healthcare and tax fraud.

The full story is here.