Monday, March 30, 2009


This post is about the Potworowski and Kopelman article, Strategic Display and Response to Emotions: Developing Evidence-based Negotiation Expertise in Emotion Management (NEEM). I try to tie the article to the Cochran reading for this week and to identify some lessons that will be helpful in the Fourth of July exercise.

Awareness of emotions is useful for negotiators because, the authors say, "emotions in negotiations convey information... and can strategically influence behavior" (337). The truth of this claim seemed reasonably clear to me when I was planning our course and I adopted, in part, one of the authors' suggestions about teaching NEEM, namely the use of video clips and questions about the emotional state of the negotiators. Thinking back to The Deal and the subsequent quiz, you may recall my focus on emotions and how the actors conveyed them.

For a while I considered the authors' suggestion about having the class role-play the next step in the negotiation process (343) but, you will be relieved to know, decided against it. Asking half the class to play the role of Tony Blair and the other half to channel Gordon Brown seemed just too weird. So in place of The Deal, Part II, we have the Fourth of July exercise.

But wait, you are thinking, isn't the Fourth of July an interviewing-and-counseling exercise as opposed to an exercise in negotiating? Well, yes. But I believe that there is significant overlap in the skills that will make you effective collaborative counselors and those that will help make you strong dispute resolution advocates. Both involve acting, for example, and the strategic behavioral display of emotion.

What do I mean by that? Let's look at Chapter 8 of Cochran, in particular section 8-5 where Cochran and his co-authors discuss the process of counseling the client toward a decision. In 8-5 (a) (3) they write that part of the job is to "provide a comfortable physical and emotional environment" and that this involves "[p]rojecting empathy, acceptance and genuineness." Projecting emotions demands a good idea of what they look like -- literally -- and how others respond to them.

In the Fourth of July exercise, the adjunct instructors playing the role of your clients will display emotions. That is the essence of playing a role. It is no affront to their theatrical skills to say that they will be engaged in what Potworowski and Kopelman refer to as "surface acting," by which I mean that they will only be pretending to be sullen/ecstatic/apoplectic and so on. They will be watching you, of course, and I hope that you will be watching them too, observing and learning from them.

During the exercise, please think about how the adjunct faculty use their faces, voices, and body language to convey emotions, and about how those emotions (albeit feigned) adapt in response to your words and actions. The idea at the core of the NEEM article is the notion that recognizing emotions in others, modulating our responses, and fashioning our own displays of emotion are skills that we can learn. In reading your memoranda about the exercise I will be looking for reflective comments on this point, among other things.

Finally, a word about the acronym "NEEM." It reminds me of a Monty Python sketch. For British-born men of a certain age, everything reminds us of a Monty Python sketch. Last semester I incorporated several Monty Python scenes into my course (how else can you teach Legal Writing?) and met with mixed responses. Some students loved it; others did not. Accordingly, I do not force you to watch anything overtly Pythonesque in class and, instead, merely make available to you -- for viewing at your leisure -- such Monty Python sketches as I deem pedagogically necessary and proper.

For the Knights Who Say Nee scene from that cinematic extraveganza Monty Python and the Holy Grail click here.

Tuesday, March 17, 2009


We missed it when it was in the local cinema, so my wife and I rented Brideshead Revisited last week. The critics hadn't been kind, but we enjoyed the film. It is the sort of thing we like and, as Abraham Lincoln put it, "people who like this sort of thing will find this thing the sort of thing they like."

You may be wondering what Brideshead Revisited has to do with our LP course, so I shall tell you. The law review article I was just reading brought to mind a scene from the film.* The scene illustrates neatly a point that came up in our work on negotiating and is coming up again in our work on interviewing. As the title of this post suggests, the point is reciprocity.

The scene involves the central character, Charles Ryder, his friend, Sebastian, Julia (Sebastian's sister) and Lord Marchmain, who is Sebastian and Julia's father. The image above shows (L-R) Sebastian, Lord Marchmain, and Julia. They are chatting amicably, albeit in Evelyn Waugh's stilted aristocratic manner. Lord Marchmain asks about Charles's mother, and Charles replies that she is dead.

How does Lord Marchmain respond to this disclosure? He looks at the ceiling and says nothing.

It is a painful scene. There is no customary expression of condolence or sympathy; simply silence and an aversion of the eyes. Nothing in Lord Marchmain's demeanor reflects Charles's emotions or the significance of the information he has just shared.

What is lacking is reciprocity. Charles has shared something important, and Lord Marchmain has not. In fact, Lord Marchmain has not offered so much as a kind word. In the language of the kindergarten, it's just not fair.

What made me think of the scene was an exercise that Laurie Shanks describes in the article I mentioned. During the first class of the semester, Professor Shanks asks her students to break up into pairs, and each tell the other about an experience that changed her or his life. Later Professor Shanks asks one student from a pair to tell the rest of the class the story of the other student's life-changing experience.

The exercise has several distinct purposes, one of which is to bring the students to the realization that "what we do as lawyers, inside a courtroom and out, is function as the 'teller' of our client's story." Of course, telling someone your story has the potential to threaten your sense of "face," as we have been reading about in Linda Smith's article, Client-Lawyer Talk (posted on TWEN).

Allowing clients to maintain face is essential to building trust and learning their stories, and Professor Shanks drives this important point home with a question. She asks her students how they would have felt if she had concluded the exercise "with only one partner in the pair having told his or her story." The students respond with indignation, telling her, among other things, "that wouldn't be fair." Then she asks, "How do you think our clients feel when they share with us and we do not reciprocate?"

What follows is a lightbulb moment, apparently, when the students both learn something valuable and realize that they are learning it.

If, as Linda Smith claims, the client-lawyer interview is a conversation, a cooperative endeavor that both parties control, and if, as Laurie Shanks claims, "gaining trust is critical to effective client representation," there has to be some reciprocity when we converse with our clients.

How much reciprocity is appropriate? On the one hand, we know that we cannot built trust if we behave like Lord Marchmain, staring vacantly into space when the client takes a risk and discloses something that is difficult to talk about. On the other hand, there is a danger of straying from empathy into amateur psychology, and of crashing through the professional boundaries that allow attorneys to lead full, meaningful lives away from the office. So how do we strike the right balance?

This subject, reciprocity, is one of the difficult questions we need to wrangle with in class as we move forward into interviewing and counseling. In the meantime, I welcome your comments.

* Laurie Shanks, Whose Story Is It Anyway? Guiding Students to Client-Centered Interviewing Through Storytelling, 14 Clinical L. Rev. 509 (2008).

Friday, March 6, 2009

Libs meet Dems

This is just a short post. Jennifer Williams is sending you details about viewing the Balance of Power recordings via Odin. In the meantime here's some film that I shot of the Libertarians meeting with the Democrats.

Tuesday, March 3, 2009

A House Divided

Before you go any further, please read the comments that BJ and Jen posted to the last entry. What follows will make more sense if you do.

In March 1977, Prime Minister James Callaghan invited David Steel to 10 Downing Street to discuss a parliamentary pact. How did that ball start rolling? Who made the first call? Eagle-eyed students will have noted a subtle difference between the excerpt from Steel's biography and the the excerpt from Steel's own book, A House Divided.

In the biography, we read that Callaghan's colleague, William Rodgers, called Steel for an exploratory conversation, a "fishing expedition to find out what terms Steel would demand." From the biography we also learn that Steel had already had at least one conversation with another leading Labour member, namely Cledwyn Hughes, days before the call from William Rodgers. "A friendly talk," is how the biography describes the conversation between Steel and Cledwyn Hughes.

How did it come about that Cledwyn Hughes, the chairman of the Parliamentary Labour Party (the legislative caucus) had reason to have a friendly talk with David Steel, leader of the Liberal Party, in the first place? Here the biography is silent. It tells us that the conversation happened, but not who initiated it.

By turning to A House Divided we can start to fill in the blanks. One of Steel's Liberal colleagues, Cyril Smith (pictured), used to be a member of the Labour Party. Steel tells us that, in early March, Cyril Smith "proposed [to Steel] that we should explore the possibility of securing some agreement with the government in return for our support." Steel says that he gave the go-ahead to Cyril Smith's idea of writing to Prime Minister Callaghan, but let's examine the words he uses to describe that decision:
"I was not over-keen on such a brazen approach but agreed that Cyril should do this off his own bat and entirely unofficially."
My first question for you has to do with that early stage of the story of the negotiations, prior to the inter-party discussions getting under way. Assuming that Steel's memory is reliable and that those were, in fact, the conditions that he gave Cyril Smith, what purpose could the deniability serve?

Now let's think about what happened next. Cyril Smith wrote to Callaghan. Callaghan responded. Smith was "very cross" about the nature of Callaghan's response and, according to Steel, leaked news of their correspondence to a newspaper. Not just any newspaper, by the way, but the Daily Mirror, the paper of choice for Labour's core working class supporters. We can imagine how Mirror readers might have felt when they found out that the leader of their party, in desperate need of parliamentary support, had just alienated the Liberals.

At this point, it is easy to imagine the story ending very differently, with no inter-party negotiations and no pact. So what was it that triggered Cyril Smith's anger and nearly derailed the train before it even left the station?

In reply to Smith's note, Callaghan had suggested that Smith might want to talk to Cledwyn Hughes. Smith took this as a rebuff. From Steel's account we can infer that Cyril Smith felt that he had lost face.

I want us to pause for a moment and think about Beyond Reason. Using the lens of the five core concerns to look at the interaction between Cyril Smith and Prime Minister James Callaghan, what do we see? That is my second question.

Picking up the story again, Steel writes that when Callaghan read the newspaper version of his exchange of letters with Cyril Smith he (Callaghan) talked with his colleague Cledwyn Hughes who then called Steel. Callaghan's message to Steel, through Cledwyn Hughes, was that Callaghan had not intended to snub the Liberals. Steel writes that "Cledwyn telephoned me to say that no such snub was intended and I seized the opportunity to invite him round to my room for a chat."

This brings us to my final questions. Was Cyril Smith really angry or just faking? And did Cyril Smith leak alone, or did he have an accomplice?

From the outset, I have asked you to think skeptically about what you read. One of the phrases I tend to use in this context is "kick the tires," and I hope I have made clear that there is a difference between kicking the tires and taking a sledgehammer to the windshield. By this I mean that you should not read with utter credulity, but nor should you dismiss everything out of hand. Differentiate between claims and evidence; that's what I'm asking.

Approaching Steel's account of the pre-negotiation gamesmanship with skepticism, we can learn something, I believe. To engage in this line of skeptical inquiry, I recommend assuming a role while you think, the role of Prime Minister James Callaghan.

Put yourself in Callaghan's shoes in March 1977. Your party is about to fall from office and face a general election unless it can negotiate a deal with a smaller party, and the most likely partner is the Liberal Party. Cyril Smith, one of the handful of Liberals in the House of Commons, approaches you. Maybe you feel relieved. Smith's overture must mean that the Liberals are as worried about facing the electorate as you are. That, in turn, means they won't be demanding much in the way of concessions.

But then you open the Daily Mirror and get the impression that the Liberals are about to walk off in a huff. You were already feeling the heat and now somebody has gone and dialed it up.

By leaking to the press -- to the Daily Mirror, in particular -- Cyril Smith has upped the ante. After reading the Mirror, Callaghan not only reaches out to the Liberals but also has to start with an apology. Callaghan may still suspect that the Liberals will support his government even without Labour giving them anything of substance in return, but he can't be sure. Small in numbers they may be, but the Liberals have just scored two points.

Perhaps Cyril Smith was genuinely ticked off and vented to the press out of personal frustration, without clearing his actions with his party leader. But from what you have read so far, about negotiating in general and the Lib-Lab Pact in particular, does this exercise in negotiation-via-press-release have somebody else's fingerprints all over it?