Posts Tagged ‘critical thinking’

Critical Thinking – An Essential Skill

Friday, October 24th, 2014

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. Her 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!

Critical and Analytical Thinking – A Paralegal Example

Monday, February 4th, 2013

Last week a law professor lamented to me that it seemed students were less and less willing to engage in true critical thinking, perhaps reflecting the role models of some of our more prominent politicians. He pointed out that the legal profession was a service industry, one in which the primary tools are the ability to read with comprehension, write clearly and concisely, and think analytically and critically. This, of course, applies to paralegals as well as attorneys, and is the focus of much of the instruction here at the Ole Miss B.P.S. program. A recent LinkedIn exchange provides a good example of both side – remarkably non-analytical and non-critical thinking by one paralegal and good, solid analytical and critical thinking by another. Note how the second paralegal, Blake Ferger, keys in on language that indicates bias, seeks facts rather than accept conclusions, deals with the primary source and “the actual legal definition,” applies the law objectively to the facts, and even reads the footnotes – all things that are to be expected of a professional paralegal:

First Paralegal: Kidnapping and sex with a minor not grounds for deporting illegal immigrants

Hard to believe but a U.S. federal appellate court has stopped the deportation of an illegal immigrant convicted of kidnapping , ruling that it’s not necessarily a crime of moral turpitude.
The decision, issued by the 9th Circuit Court of Appeals, is a 27 page opinion that is, in all honesty, quite hard to grasp. “This undoubtedly appears to be a difficult question at first glance,” it reads. “Kidnapping is a serious crime, and our instincts may be that it would meet the moral turpitude definition. Even for serious offenses, we must look to the specific elements of the statute of conviction and compare them to the definition of crimes involving moral turpitude.”
What? The definition of moral turpitude is: A phrase used in Criminal Law to describe conduct that is considered contrary to community standards of justice, honesty, or good morals. Attorneys can be disbarred for moral turpitude but, it appears, convicted illegal immigrants can’t be deported.
The case involves Javier Castrijon-Garcia who entered the United States illegally in 1989 and is the father of three American-born anchor babies. He has twice been convicted for driving with a suspended license and in 1992 pleaded guilty to attempted kidnapping. He received a suspended sentence of 300 days in jail and 36 months of probation.
Years after the kidnapping case, the Department of Homeland Security (DHS) earmarked Castrijon-Garcia for removal. He appealed but an immigration judge found that he was deportable because the kidnapping conviction is a categorical crime of moral turpitude. The Board of Immigration Appeals, the government’s final authority on immigration matters, agreed noting that it had previously listed kidnapping as an example of a crime of moral turpitude and that California’s penal code also defined it as involving moral turpitude.
But the 9th circuit disagreed, writing in its decision that precedent dictates that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.” The type of “simple kidnapping” that this illegal immigrant committed doesn’t necessarily involve such evil intent and harm therefore it doesn’t constitute moral turpitude, according to the San Francisco-based court.
The ruling orders the Board of Immigration Appeals, which is part of the Justice Department, to “conduct a modified categorical analysis” of the illegal immigrant’s crime. But the BIA has already determined that kidnapping is a serious enough crime that merits deportation, so the court seems to be ordering the BIA to make an exception or change the criminal code.
A few years earlier the 9th Circuit reversed a lower court ruling calling for the deportation of a Mexican immigrant convicted of having sex with a minor. In that ruling, the 9th Circuit claimed that while the crime violated state law and was unwise and socially unacceptable, having sex with a minor wasn’t base, vile or depraved enough to warrant deportation.

 

Blake Ferger • I would be interested to know the actual full circumstances of these cases. The phrase “anchor babies,” which has no basis in reality, is a huge flashing red warning that the author has an anti-immigrant ideology. For instance, was the kidnapping of one of the alien’s own biological children? Was the alien who had sex with a minor barely him/herself an adult? These are the kind of facts that would explain apparently unjust decisions which the author is attempting to exploit for outrage.

Anyone know of factual, unbiased background on the above cases? From somebody not pimping the “9th Circuit commie Californians LOL” angle?

Blake Ferger • Interesting, thanks. Well, as is usual with appellate decisions, it is short on facts and long on technicalities. The upshot appears to be, though the 9th Circuit was politer than this, that the Board of Immigration Appeals engaged in sloppy, lazy lawmaking (not surprising to anyone familiar with them), and rather than “ordering the BIA to make an exception or change the criminal code,” the 9th Circuit has actually told them to try again and do the job right this time.

The author was too lazy him- or herself to pull the actual legal definition of moral turpitude from the decision: “The Immigration and Nationality Act does not define the term ‘crime involving moral turpitude,’ but ‘courts and the BIA have generally defined [it] as comprising crimes that are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general…. Such crimes are of two types: those involving fraud and those involving grave acts of baseness or depravity.” (Grave baseness or depravity is things in the realm of murder, rape & incest.) The California kidnapping statute in question requires neither fraud nor grave acts of baseness or depravity. It might seem weird that “kidnapping” could not involve that, but as an example, the decision cites the upheld kidnapping convictions of angry black students who compelled university administrators to walk with them for a few hundred yards to address their complaints of a coach beating a black football player in the middle of a game. When this is the kind of kidnapping that is covered by the statute, then it is impossible to say with certainty that it qualifies under the federal standard of moral turpitude.

Lots of other interesting stuff in there, like footnote 8: “Only the Fifth Circuit has decided whether kidnapping is categorically a crime involving moral turpitude, holding that it is not. Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) [interpreting a Louisiana simple kidnapping statute similar to the California statute at issue].”

In short, the decision is only hard to grasp if you avoid reading the actual decision and instead stick to the sensationalistic headline.

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The COA opinion is here

 

Don’t Leave Professionalism at the Office

Friday, October 9th, 2009

I was not able to carve out the time for a comment on awareness yesterday, so here it is today:

Members of the legal profession are trained to locate and critically analyze information in order to make sound, objective decisions. We sort out fact from fiction and set aside in personal bias when making recommendation for our clients. While we often try to use emotional manipulation to influence juries, we ourselves at least attempt to have safeguards in place to prevent us from being swayed by it so we can do the best for our clients.

Thus, I am frequently disconcerted by the extent to which members of the legal profession are unable to apply these same principles in our own lives. October is Breast Cancer Awareness month. Breast cancer is “is expected to take the lives of 40,610 women and men in 2009, according to the American Cancer Society.” According to an October 6 report from Reuters, 75% of women who die of breast cancer have not had mammograms, while only 25% of women who are screened dies of the disease. There is some debate over the value of mammograms, but what I find disconcerting is the number of legal professionals who do not get the screening for reasons that have nothing to do with the facts or the reasoning of the two sides in that debate, but are based on anecdotal accounts, old wives tales or simple lack of awareness.

The failure to apply the same techniques to our personal lives that we insist upon applying to our work for clients (and often insist our clients apply to their personal lives) seems to be quite pervasive. Aside from smoking where there is the question of addiction, I see and hear legal professionals refusing to wear seat belts, obtain prostate exams, control their weight, and believe that current health insurance reform proposals include provisions for “death panels,” based on emotional appeals, lack of awareness, uncritical acceptance of faulty information, and a seemingly complete lack of critical and analytical thinking.

I am a firm believer in leaving the office at the office, which canbe accomplished with proper time management. However, I equally firmly believe that we should not treat the basic tenets of professionalism as if they are the exclusive province of the office.

End of sermon. Have a good weekend. And take care of yourself.