Week 4 – Critical Legal Thinking
The focus for this week’s study was on thinking skills, and how to think like a lawyer. To achieve, this I had to learn about some of the frameworks that can be used to think like lawyer. They all have acronyms like MIRAT and IRAC and CREAC. However, other than moving the step around they all consist of identifying the material facts, identifying the legal issues, identifying the legal rules, applying the rules, and coming to a conclusion. This process can be used for any aspect of legal practise, from reading a judgement and identifying the salient points, to developing a presentation of a legal issue, to preparing a response to a situation a client has asked to be analysed. The textbook focused on the CIRAC method where you state the conclusion, identify the material facts, identify the relevant rules, apply the rules to facts, and then restate the rules. And if you’re being creative, before applying the rule(s), you also identify the policies that informed the rules, so that when you apply the rules, you apply them in the way the legislature intended.
Next up was logical reasoning. This is also sometimes referred to as legalistic or literal thinking. The premise is simple and elegant, and therein lies the challenge. Making a proposition that is both valid and sound, and as a result, irrefutable. And naturally, valid reasoning trumps invalid reasoning, as does sound reasoning (as opposed to unsound reasoning). Examples of faulty thinking were demonstrated, so that the causes of invalid and unsound reasoning could be identified in opponent’s arguments and avoided in our own. Some such as hasty generalisation, bias and attacking the person are easily recognisable from everyday life and the media. However, some of the forms of faulty reasoning are more subtle and can be challenging to avoid (such as correlation and causation, some forms of bias and appealing to the majority or the person.
If you don’t apply critical thinking when considering a situation or argument, then it will be hard to clearly identify the real issues at hand, and what can be done to resolve them. You need to be able to identify and analyse the problem. You then need to be able to infer a reasonable and justifiable conclusion that takes into account all the rules and evidence you identified. Most importantly, you then need to be able to communicate this to others (who heard of lawyer who could analyse and solve problems but not stand up in court and explain it!?) And to be able to do this, you need to be able to self-regulate your thinking so that you don’t slip in faulting reasoning yourself. And if you can be creative at the same time, you will be able to present options to your client that they didn’t think they had, and you may be come up with unorthodox solutions and options. You may consider the purpose and policy considerations that lead to a specific piece of legislation, rather than just accepting that its literal interpretation is what the legislature intended. You might approach the problem from a different perspective, and as a result, be able to argue for a completely different outcome.