Critical Thinking

As I continue my dive into the world of academia, I’ve discovered a number of “buzzwords.” One of those buzzwords (buzz phrases?) is “critical thinking.”  I’m sure I heard “critical thinking” at least three times yesterday. From one speaker.

As a director of an office that has employees, and as someone who has taught university-level courses, one of the things that I try to instill is the freedom for students and workers to think critically. I’d prefer that students and workers not be passive recipients of information, but actually do something with that information, typically, by asking questions: What are the implications of this decision? What can go wrong? What can go right? How can this decision affect others?

The Harvard Business Review recently published a study by Francesca Gino and Bradley Staats where they interviewed managers about their needs. According to Gino and Staats, managers say that they “need employees who can think, not just follow orders.”

Why do they need these types of workers, people who can do something with information besides simply what the manager tells them to do?

Because the world is “changing to quickly to predict customers’ demands” and the only way to thrive (or even survive) is to “find workers who can co-create value with customers and constantly improve operations”.

Gino and Staats go on to suggest ways to change organizations so that workers bring their hands and heads to work. They conclude that businesses need to design jobs to give workers ownership of how they perform tasks, ownership of their identity, and ownership of their time.

In a sense, we need our workers to have the characteristics of what the law calls independent contractors. Independent contractors use their own tools and equipment and determine how the project will be completed. The employer gets to determine what will be done. The analysis can be more nuanced, but you get the point.

We do this a lot at our office. We ask “what do we want the outcome of this project to be” and then let our student assistants determine how to get there. The level of creativity and ownership is compelling, even with our small office. Of course their are boundaries that need to be observed, whether imposed by time, law, safety, or regulation, but operating within the space allowed can be a lot of fun. Gino and Staats suggest that pushing ownership to the worker’s level improves productivity and worker happiness.

Their conclusion: operations of the future need to be adaptable and dynamic.

What are your thoughts? Is critical thinking an important characteristic? If so, how do you teach it? How do you create a community of critical thinkers?

Are you studying correctly?

Working at a university is a great experience, except for the week or two leading up to finals. The pressure ratchets up and you can really feel it. While many students work hard the entire semester, just saying “test” or “final” increases anxiety and you can see the increased attention students give to tests at the end of a semester..

The folks at Scienedump (via have a great infographic on the “science of study”–putting into graphics the neural processes when we study (and this isn’t limited to just students–anytime we’re working on new information, we are studying). When you learn new information, your brain grows!

The science says that cramming isn’t effective for long-term recall, regular testing seems to lead to better retention, and night-owls perform worse on tests than others.

Keep those synaptic connections firing! Study new things a little bit at a time, over time, for the best chance to retain those memories.

False memories

New York Times/Rich Docherty
New York Times/Rich Docherty

The American justice system is based on eyewitness testimony. We bring people into court to tell the finder of fact what happened. This is often supplemented by documents, computer records, and these days, video recordings and genetic testing.

We still use eyewitnesses to help us understand what happened. The problem is that our minds work in such a way that witnesses often get things wrong. The New York Times recently published a story titled “Witness Accounts in Midtown Hammer Attack Show the Power of False Memories.” You can find that story here. You can find about the attack here, here, and here.

Our psychologist friends aren’t surprised that eyewitnesses often miss facts. Even mice may have false memories! The Times quotes several psychologists who say that false memories are very easy to make. The Times even speaks to an eyewitness who described the scene but when compared with the video, the witness observed things that didn’t happen.

Our minds are wonderfully complex machines. They have to make hundreds, if not thousands of decisions a second to help protect us from the myriad stimuli that we experience every moment of our lives. We think we know what we saw, heard, felt, or read, but the reality is those things have been filtered for us. And as the Times’ article explains, our recollections not only err on what we saw, but a significant portion of the time, our minds invent facts that weren’t shown to us.

Have you experienced a witness or a client with a false memory? How was that memory shown to be false? Did the witness understand the falsity of the memory when shown a document or video that showed a different reality? Please share your experiences.

Arbitration Trendsé_Daumier.jpg
Brooklyn Museum – A Defense Lawyer at the Court of Arbitration Discussing Business at his Usual Office Premises (

Today’s General Counsel published its Arbitration Trends for 2014. This is a good read.

General counsels were asked why they arbitrate and why they don’t. Respondents said that they arbitrate because (1) it’s required by contract; (2) it’s confidential; and (3) it’s less costly. Interestingly, none of these top responses obtained 50% approval.

When asked why they don’t arbitrate, respondents said they don’t because (1) arbitration can be too quick; (2) arbitrators tend to “split the baby”; and (3) cost and time advantages can be illusory.

Lately, I’ve been thinking a lot about the users (clients) of ADR processes. While Today’s General Counsel has another article summarizing a study showing arbitrators don’t “split the baby”, that perception exists. If the hard numbers show the opposite of perceptions, why do so many users have perception?

What are your thoughts on the state of arbitration? Is arbitration meeting its promise of an alternative to traditional litigation? Or has it become a form of private dispute resolution with the same discovery expenses and motion practices found in traditional litigation? Please share your thoughts.



Why the decrease in civil trial filings?

The Texas Lawyer notes that the filings for civil disputes are down 17% over the past decade. Angela Morris, the writer of the article, does a very nice job of outlining broad categories of cases and the numbers of filings since 2005. She also interviews a handful of people who provide possible explanations for the decrease in civil case filings.

Tort reform was a common answer to the question of “why are civil case filings decreasing?” Those who provided that answer say that rights that existed in the past don’t exist anymore and that certain cases are no longer economically feasible. Another explanation involved pre-suit mediation and arbitration. In sum, because trying cases has become more expensive, parties are either trying to resolve their dispute before filing or simply choose not to file at all.

Chief Justice Nathan Hecht is quoted as: “If it really is down, and if it’s down for some reason—and it’s a good reason—then we ought to try to make sure that we can improve on it. If it’s down because going to the courthouse is too expensive and people have just given up on trying to get there, then that’s a bad reason, and we should try to get the cost down.”

What are your thoughts? Why are the civil trial filings down? To paraphrase Chief Justice Hecht, is this good or bad?

Words matter: litigation isn’t a battlefield

My professional history is as a litigator. I’ve heard people use battle-related terms in the litigation context. I even had the experience of hearing this type of language from a law school student looking for a job. “Why do you want to be a litigator?” I asked the applicant. “Well,” he said, “litigation is the only way you can legally crush your opponent” he replied in a raised voice with a fist on the conference table.

The student wasn’t hired.

Michael Maslanka writes in the Texas Lawyer that we shouldn’t use battle-related terms in litigation, citing John Pollack’s “Shortcut: How Analogies Reveal Connections, Spark Innovation, and Sell Our Greatest Ideas.”

Mr. Maslanka is right.

Words matter.

Often times in mediation, I’ve encouraged the parties to leave their “shields and swords at the door” and that for the time here at the mediation, our goal is different. Our goal isn’t to injure each other but to draw a truce and resolve the conflict.

Frankly, I’ve never liked the battle-related terms used in litigation if for no other reason, it’s not a real battle. There are people who’ve honorably served this country in battle, taking bullets, losing limbs, and losing life in significant, horrific ways.

Litigation shouldn’t be that way and we shouldn’t use that language. I’ve always viewed litigation as a problem in search of a solution. As Maslanka points out, with war there must be a winner and a loser. There must be good versus evil.

Litigation (and mediation) is about resolving disputes.

Look at how successful family law mediators use language. They don’t refer to “parties” or “petitioner” or “respondent” or “custodian”. They use words like “mom” and “dad.” That makes a difference, doesn’t it? It changes perspective and it changes how we approach the situation.

Words matter. Let’s use accurate words to describe the situation.


Pre-lawsuit mediation

This coming Monday, I’ll be part of a panel discussion on “Pre-litigation Mediation” at the Dallas Bar Association’s Alternative Dispute Resolution Section’s meeting. I’m honored to be part of the discussion.

The other panelists and I have been discussing the presentation over the phone and we’ve developed some good topics to discuss.

But I’d like to hear from you. What are your thoughts on pre-litigation mediation? How do you use it? What have been your experiences with it?

Please let me know before Monday!