Wednesday, August 24, 2011

Clerking at Rice Law: by Erin O'dea

Silence is one of the hardest arguments to refute. ~ Josh Billings 
([Henry Wheeler Shaw] 19th Century American humorist)

Maybe Mr. Rice chose me to write this blog because he believes people, and especially his law clerks, can learn something from every task they perform. As a recent graduate of the Cecil C. Humphries School of Law, I can attest to the fact that many of my fellow graduates, including myself, have struggled with putting into practice the knowledge that the quote above imputes. I have been clerking at Rice, Amundsen & Caperton since April 2010, and on my first day at work I learned that the number one reason to practice law is to: HAVE FUN, which is why it was only appropriate that this blog entry begin with a quote from an American humorist.

I recently had the misfortune of taking the Tennessee Bar Exam, and I can only pray that I studied enough to ensure I would never have to face that BEAST again. My boyfriend, who has said he was beginning to forget what I look like, assures me I did, but I will not believe his biased reassurances until I see my name on that list October 7th at noon. I have left the 12 hour study days behind, and replaced them with workdays of similar length, the main difference being: human interaction, which makes work that much more pleasant, most of the time. At work new developments have arisen in cases I left behind, new procedures have been put in place around the office, and new faces have appeared in the hallways, but one thing has not changed… every day is an opportunity to learn and improve.

I have learned a lot from the attorneys who practice with the firm, but the most important thing has been that I can never stop learning, as long as I want to be successful, that is. Mr. Rice makes sure that every mistake, every victory, and even every menial task teaches us something. Mr. Rice recently sent everyone in the office a link to an article entitled, “Negotiation as a Form of Persuasion: Arguments in First Offers”. The article talked about the different ways a first offer can be presented to an opposing party in ADR, the possible psychological impacts of the differing styles of presentation, and how an attorney can use this information to get positive results for his or her client.

The article states that though there is an advantage to making the first offer in any negotiation process, attorneys have a tendency to present their first offer with too many arguments of why the opposing party should take their offer. Studies show that parties who made the first offer achieved better results if their initial offer did not contain any arguments as to why the offer was a good one. Why, you ask? The general consensus was that providing arguments with the initial offer caused the opposing party to feel the need to generate counter-arguments, which makes sense if you were ever a 1L trying to answer a professor’s question and your argument prompted some gunner in the front row to play devil’s advocate so that he could potentially get some gleaming letter of recommendation from that professor. (I bet that gunner was really disheartened when he saw the generic letter that professor wrote to the Bar on his behalf… “I believe this candidate has the character and fitness to be a member of the Bar in Tennessee. Sincerely, Professor Don T. Brownnoseme”)

What can you take away from my summation? The party making the initial offer will come closer to the result desired if they layer their arguments in the negotiation process, and reveal their arguments only as those arguments are needed. We as attorneys are taught to be adversarial, and if you give us a reason why you are right, we’ve been taught to give you a reason why you are wrong. However, in this instance, if the offering party becomes greedy, and attempts to blow the other side away at the beginning, in one fell swoop, that offering party may just end up with nothing. Now, I’ll ask myself, what have I taken away from the task given to me? Sometimes your best argument is the one you don’t make.

This is the way the world ends

This is the way the world ends

This is the way the world ends

Not with a bang but a whimper. ~ T.S. Elliot

If you found my ramblings at all interesting, you may find this article even more interesting. The author gives tips on what can be taken away from the study done by the authors of “Negotiation as a Form of Persuasion: Arguments in First Offers.” You must pay to read this article, but if you are interested in reading the full article you can click here to purchase it. Rice, Amundsen & Caperton is in no way affiliated with either of these websites, and does not profit in anyway if you click on the above listed links, or buy the article mentioned in this blog post. We simply thought these were interesting topics, and thought some of you might find them interesting as well.

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