pa 105 kaplan university. thoughts for this week: critical thinking, legal analysis, memorandum of...

PA 105 Kaplan University

Thoughts for this week: critical thinking, legal analysis, memorandum of law.

How do these all relate???


In a memorandum of law, there is a section entitled “discussion” or “analysis.” That is where you will include your “legal analysis” of the issues you identified. We use “critical thinking” to present a proper legal analysis – one free of opinion or bias.


The object of the exercise is not to find a correct answer, but to practice the process of critical thinking.

You are asked to decide what you think initially and why, to seek other views and evidence, and to decide which opinion is most reasonable.


Critical thinking is the ability to distinguish fact from opinion and evaluate supporting evidence using basic principles of logic.

Judges use critical thinking skills when they read attorneys’ briefs and are persuaded by the arguments that are the most logically sound, well-supported, and lacking in bias.


A person who demonstrates significant critical thinking is thinking like a scientist. If you are a scientist, you will ask a number of questions concerning the ideas. What is the evidence supporting the idea? How well does it support the idea? What are the limitations of the ideas? Are there alternative explanations for the finding? What are the weaknesses of the methodology? What are the limitations of the findings?


The critical thinking skill is one of eliciting a thought process that will remove an emotional bias. These biases may hinder our ability to think clearly and correctly on a given subject. With the tools of critical thinking you can breakdown the subjective barriers and understand the "hidden reality" of a given set of data or circumstances.


(1) Every day, we wake up in the morning, dress ourselves and eat breakfast. These are things we do almost every morning without fail and we do because we often have things that must be done in the course of the day, such as work.


(2) Some days we may not wake up until lunch time, we may not eat breakfast and we may spend the day at home in our underwear because we don't have work and feel like breaking our routine.


Two very basic statements, the first speaks of what usually happens and the second tells of what may happen on occasion if we choose. Applying critical thinking skill to these to statements we could say that on some days we do have breakfast and on some days we don't - That is a fair and rational statement - Even if we don't break routine very often, it is logical and fair to say that some of us, some times DO.


The previous statement was a small summation of working peoples habits, little information was provided and not many implications were made. The statement made no restrictions about how you must view it. The information put forward was set up as a fact. Because the implication was clear and no restrictions were placed we can not conclude the following:


There is no implication to prove that on all days that we don't work, we wake up at lunch time. Some days implies that it happens some of the time, but we do not have information that proves it to be all of the time.


We may not eat breakfast implies that we can choose not to eat breakfast. May is a word regarding choice, so if we may not eat breakfast then we also "may" eat breakfast of our own volition. There were not restrictions stating "We do not" eat breakfast, thus we may very well opt to eat breakfast, so long as we wake up within the time frame that would place us at breakfast time and not lunch time, at which point eating breakfast is a chronological impossibility.


We may very well like our routine and the fact that sometimes we break our routine does not in any way offer a conclusion other than that of - We feel like breaking our routine, however we are not given a reason as to why the routine is broken, so we can not make any accurate evaluations on why we break our routine.


Using critical thinking techniques we have to work with the information we are given, we can not add the resulting extrapolations that would occur if our assumptions were part of the whole picture - Because our assumptions are not part of the original information.


Our emotions can trick us into bringing unnecessary bias into the evaluation equation, when the fact is our bias and emotions should play no part in whether a statement has any validity or not. Feelings don't count, in fact they obscure the course of summation.


We must learn what our biases are in relation to a given piece of information so that we might counter our bias and reach the logical conclusion unhindered.


Whether you laugh, cry, scream, vent or boil, your emotions have absolutely no bearing on validity whatsoever.

Logic is the key to critical thinking skill , not emotions.


The man named Mr X stands in a court room in front of the jury, the judge and a group of crying women staring straight at him, they all cry when they see him and they comfort each other. Protesters stand outside chanting with vigor and anger, his name can be heard among their protestations. The man named Mr X, admits to causing the deaths of 6 women and 2 young children. The jury are shocked by the further details."


What emotions and bias, has this statement stirred up for you?


1. The Man has admitted to causing death - Yes he has it is written there.

2. People are upset - Yes, women are crying and protesters are angry.


Can we now deduce that the man is a murderer? - No, he may be (for whatever reason) lying and may not actually have killed anyone. We do not know if he is telling the truth because the statement has not told us this yet.


The man is telling the truth, but the women are that are crying are his family and believe he has done nothing wrong.

So, how does this now affect our ability to look at the statement?


We now know that he indeed did cause the deaths of at least eight people (we do not know if there was more) and we also know that the women crying believe he has done nothing wrong - Huh? Maybe it was an accident and he didn't mean to cause any harm.


The Man Purposefully Killed The Women And Children With A Machine Gun


Do you now think he must be guilty and that his actions were evil? At each stage I left out information to show that lack of information can be as important as a statement itself, which is why we cannot afford to make snap judgments based on assumptions, bias and emotions. Without critical thinking, you may go off the path completely.


"The man Mr X was a soldier in the war, he had found a village of prisoners, including 58 young children and 14 women who had been beaten and tortured. He tried to help them escape, but was shot at by two young 10 year old boys who were part of the prison camps guardianship, the two boys had now shot Mr X and killed three young girls aged 4, 7 and 9. Mr X used his machine gun to hold back the fire from the guards, while 6 more women guards threw grenades at the prisoners, he managed to shot those guards and the two young soldier boys and escape with the remaining 69 living survivors. The man Mr X was given the highest medal of recommendation and is a hero to the prison camp survivors"


Aha! - So with the remaining information we learn that the man was a hero and was not a vicious, evil cold blooded killer, that the lack of information may lead you to believe. If you don't use critical thinking, the whole story can get obscured.


The idea is initially you think a person who kills is a cold blooded murderer, because your emotional bias makes you cloud your judgment, then you are told it was self defense.


So the outcome of the story and the guilt of the protagonist was dependent on the facts involved. With your key critical thinking skill, learned from critical thinking techniques, you can reduce the impact of emotional bias by viewing the situation differently.


What you don't know can often be more important than what you do know, so it is important to only make critical thinking evaluations within the parameters of the information you receive, but never than that or you may possibly make a misjudgment.


Legal analysis is the way in which cases are viewed and how they might pertain to other legal matters at hand. Your reason for analyzing legalities will determine how you approach your homework.


Identifying the issues presented in a client's facts and determining what law is relevant and how so, is the basis for legal analysis. It really is just the process by which the application of the law applies to a client's case.


Four steps constitute the legal analysis process. The first is to identify the issue or legal question. If a case involves a hit-and-run accident, is the question about whether or not the accident really was hit-and-run or is the speculation on whether it was intentional or if manslaughter charges ought to apply instead.


Secondly, the rule or law which governs the previous question of law, is sought after. Enacted law, case or common law or a combination of either might be necessary to properly analyze the case.

Suppose a law states that no dog can run at large in the city limits while a court case has challenged the terminology of "at large." The statute and the case law together could provide the best analysis and argument for your case.


Next, the analysis part arises. This part involves deciding how the law applies to the legal question or issues asked in the first place. Breaking down the elements of the rule of law is essential to the analysis.


Once the individual parts of the law are outlined, apply the facts of your case to those components to see if there is any relation between the two. Then consider counter arguments to your point of view to be certain you have looked at both sides so your defense of your case will be strongest. Finally, drawing a conclusion will let you know if you are analyzing properly.


Last, there must be a conclusion or a summary. Retracing your steps in your analysis will help you see if you have gone in the right direction. If you started out considering if the hit-and-run was intentional and ended up with the illegalities of hit-and-run, you have veered off in the wrong direction. Because there can be so many aspects to a case it can be easy to get sidetracked and lose sight of your goal. Thus the reason for reviewing and being certain you have achieved your goal.


Keep focused on what is crucial in your analysis so you can find the most pertinent law, case or statutory. Stay clear about what your case involves and what specific differences there might be in another's case or interpretation of the law. Look at everything from an objective point of view as well and it will help you see clearly where you need to go with your analysis.


IRAC stands for Issue, Rule, Application, Conclusion. It is one way to structure legal analysis. An effective essay (no matter the overall length) follows some form of the


In a memorandum of law, you would use the IRAC approach in the Discussion/Analysis section. IRAC is not the way to set up the entire memorandum. Many students confuse this.


Go to your Harris book, Ch. 6.9. There are many great examples of legal memos to help you.


Facts Issues Conclusion Analysis Recommendations

Statement of Assignment

Question Presented

Discussion Conclusion Recommendations


Draft the legal memo for Mr. Chase (your attorney-boss) Requirements:▪ Use the Four Cases we researched and

briefed▪ Answer both questions (“Issues”) given by Mr.

Chase▪ Use relevant facts▪ These are all in Unit 2 and Unit 4.


Click on Doc SharingScroll down past the chapters of the

ebookLook for the Unit 6 Assignment

Grading RubricClick it open – let’s discuss!


From Harris, Ch. 6.8 and 6.9: Use active voice Use positive, rather than negative. Avoid saying “In fact” Avoid saying the same thing twice. Do not use extra words Avoid “lawyerisms”


What questions do you have on this exercise?

Focus on the two alternatives presented by the facts, choosing between the two alternatives and forming a legal argument supporting your chosen alternative.


http://www.criticalthinking.org/ Numerous WWW resources “critical

thinking physics” on Google, etc. http://www.essortment.com/all/basicsofleg

al_ritg.htm http://www.psychologyandsociety.com/crit

icalthinking.html http://www.articleflame.com/Art/1536/140

/Critical-Thinking-For-Beginners.html


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