During my first year of law school, we had to take a course called Lawyering Process. It was a unique course in that there were no cases to study, no legal concepts to learn.
Instead, it was supposed to be all about the “process” of being an attorney: things like confronting ethical dilemmas, learning strategic planning, and developing negotiating techniques.
Unlike all the other classes—which were super-competitive with people angling for the best grades, because your marks determined your class rank, which in turn determined your likelihood of getting the best or highest-paying jobs after graduation—this class was taught, “pass/fail.”
Come to think of it, during the semester they changed it from “Pass/Fail” to “High Pass / Pass / Low Pass/Fail,” which correlated pretty nicely to the A, B, C and F grades they used in every other class.
But that’s another story. This story is the one about how I nearly failed this class anyway. And I was near the top of my law school class, otherwise!
First round is on me
The whole thing came down to an assignment in which the class was divided into groups of two, and told to conduct a videotaped, mock settlement negotiation.
A friend named David and I took opposite sides in a pretend construction contracts case. This is where we got into trouble, because the professors reviewing our videotaped negotiation later said they were insulted that we didn’t seem to take the exercise seriously.
For certain: About 90 percent of the negotiation involved us just chatting and joking around—much more small talk than anything else.
We thought it was silly, and we laughed through the whole thing. We complained about law school in general and this course in particular.
Toward the end, we closed the deal after I suggested that if David would give up his last sticking point, I’d buy the first round of beers at the campus bar.
The professors were not happy. We had at least two or three meetings about the whole thing. It turned into one of those big stressful moments of life that seem like they mean the world in the moment—but that ultimately become nothing but fodder for the email newsletter you start decades later, after they invent email newsletters.
EXACTLY the right thing?
Sadly for me, it also all took place years before the publication of a study out of the Stanford Graduate School of Business that shows that doing things like “joking about who buys the first round if you close the deal” is EXACTLY the kind of thing that good negotiators know to do.
The Stanford study involved setting up two groups of student negotiators:
First, a group that was assigned to conduct almost all of their dealings over email, and
Second, a group that was told to arrange a friendly phone call that didn’t discuss the agenda items at all before they got into the nitty gritty over email.
Since I’m citing it as support, you’ll likely guess the result:
Even though the telephone conversation was strictly nonbusiness, schmoozing negotiators anticipated and planned a cooperative, positive negotiation experience from the outset, and they attained better economic and social outcomes.
Also, fifty percent of them got free drinks in the post-negotiation trip to the bar, I’m assuming. (Although I should point out that in our case we weren’t really going to a bar afterward; it’s just a joke I made in order to move things forward.)
Parallel vs. convergent
Now, why does banter and small talk work? Well, here we get into my own theory, which is something I’m rather proud of. I call it the difference between parallel responses and convergent responses while building empathy. In short:
Parallel responses are ones that suggest that you believe your process of achieving empathy is complete, on the basis of something else you’ve brought to the interaction (often, past experience).
Convergent responses suggest that you believe the process of achieving empathy is incomplete, but that you want to work to make it complete (by continuing the discussion and finding common ground).
To use an example, imagine that a friend confides that he has a very hard time paying attention at work.
A parallel response might be something like: “I’ve had a hard time too. I understand exactly.”
A more convergent response? Maybe: “Tell me more about what makes it so difficult.”
So, my theory is that the more convergent your small talk is, the less awkward it will feel, and the more rapport you’ll build. The more you’ll get along—and ultimately, the more fake construction contract cases you’ll settle.
Honestly, I think we might have deserved the “high pass.”
A few other things worth knowing about …
Why haven’t the Epstein files been released? The Justice Department says it’s struggling to process the massive trove, and it’s prodding hundreds of lawyers to work faster. “It is a grind,” the head of the Justice Department’s criminal division Tysen Duva wrote on Friday to the document review team who reports to him. “While we certainly encourage aggressive overachievers, we need reviewers to hit the 1,000-page mark each day.” (CNN)
FBI agents searched a Washington Post reporter’s home on Wednesday as part of a leak investigation into a Pentagon contractor. Hannah Natanson, who has been covering President Donald Trump’s transformation of the federal government, had a phone, two laptops and a Garmin watch seized in the search of her Virginia home. (AP)
The U.S. has ordered the evacuation of some personnel from its largest base in the Middle East as President Donald Trump weighs strikes against the Islamist regime in Iran. The move echoes similar actions last year in the run-up to the joint U.S.-Israeli air and missile strikes on Iranian nuclear program sites. But a U.S. defense official cautioned this evacuation was a precautionary step. (Politico)
A new Reuters/Ipsos poll finds that just 17% of respondents support the idea of the U.S. trying to acquire Greenland. About 47% disapproved of the idea and 36% either said they were unsure or skipped the question. Broken down by party, 40 percent of Republicans and 2 percent of Democrats support the president’s takeover proposal. (The Hill)
Verizon’s network had technical issues impacting calls and wireless data, with some customers (like me!) reporting they saw “SOS” rather than the traditional network bars on their smartphones, and even the network provider’s own status page struggled to load. Based on DownDetector’s map of outage reports, issues with Verizon’s network appear to be concentrated in major cities in the eastern United States. (Engadget)
More Americans say they now want to retire overseas; Panama tops the list. (USA Today)
A packed crowd celebrated the much-maligned but enduring mullet hairstyle Monday in a contest at the Pennsylvania Farm Show in Harrisburg. The short-in-the-front, long-in-the-back coiffure, once the province of Canadian hockey players and hair metal bands, attracted about 150 competitors and more than a thousand spectators for the day’s “mane” attraction. (AP)
Thanks for reading. Photo by OurWhisky Foundation on Unsplash. Today was mostly a Low Power Mode edition, and if you knew that already I love you. See you in the comments.