The Voice

Check out the audio recording and then read my reflections afterward. It's not playing on Firefox for me but is on Google Chrome so try that if you have issues:

http://www.schandler.net/LaurensGranny.mp4
(Kudos to my super savvy techy law school buddy for setting up this audio link for me)

(Sorry for the "this is just a test" because it ended up working alright and not being a test after all.)

For this assignment we were asked to make a 3-5 minute recording of a conversation with a friend in order to analyze the voices for pace, volume, energy, pitch, and tone. I try to call my 89 year-old grandmother every week so when I was considering which of my friends would serve as a good subject for this audio assignment I figured I might as well kill two birds with one stone and get my weekly chat in with my granny while updating the blog.

As far as content goes (not the point of the assignment) I'll give you the brief recap: I called thinking we would talk about Thanksgiving which my grandmother is hosting at her house here in Austin this Thursday. She chatted about who was coming a little bit, but then she jumped right into her concerns about my aunt, who has been in a rehab facility since she broke her hip. I just learned from this conversation that although she had been progressing and was using a walker that she's recently had to use a wheelchair again. My grandmother sounded very down about it, and I could tell she was distracted by something the moment she picked up the phone.

Back to the real assignment:
Volume: Sorry folks, I'm much louder than she is because I had her on speaker phone and I was right next to the recorder (and she's hard of hearing so I pretty much always pick up the volume when I'm on the phone with her). Since my grandmother is doing most of the talking, I'll talk more about her voice here. Her volume is pretty consistent but her voice gets lower and she sounds more upset generally as she's lamenting the fact that her daughter/my aunt is back in a wheelchair and may not be making it to Thanksgiving. Her volume is the lowest when she said something along the lines of "oh boy, that girl... something's always wrong."

I was pretty loud the whole time so it's hard to really gauge differences in my volume, but I got a little louder (with the "Oh no!") when I heard my aunt was back in a wheelchair. Upon listening to this I think I don't really sound as concerned about the situation as I am/ought to sound and I think that's probably because I was conscious that I was being recorded.

Pace: I tried to keep the pace picked up because my grandmother sounded a bit slower than usual. I thought maybe she was just tired since I called after 9:30 but I think she felt a bit down because of the disappointing news. Her pace slowed quite a bit as she discussed my aunt's regression but then picked back up when she directed the conversation at me and asked how I've been doing.

Energy: Maybe it's because I was being self-conscious but I can tell now that I was trying to get her to talk so I could avoid talking a lot on this recording. When she asks me questions I answer briefly and then redirect her back to Thanksgiving (at the beginning and at the end). I usually try to keep the energy up when I talk to her because her favorite pastime is to worry about all the family members so I try to give her as little to fuss about as possible with regard to being stressed about law school, life in general, answers to questions about things she doesn't need to concern herself with.

Pitch/Tone: I'm not sure if this belongs in tone, but I realized when I listened to the recording that I asked a question she had already told me the answer to (whether or not my aunt would be joining us for Thanksgiving), and you can also hear me typing in the background (bad granddaughter, multi-tasking while on the phone getting bad news about family members... for shame). You can tell that I'm a bit distracted (watching to make sure I'm not recording for too long, typing something up in the background, thinking about the sound quality) so my tone changes where I'm not really paying attention contrasted with my interjections and exclamations when I remember I need to respond and stay engaged in the conversation. I think overall my tone during conversations with my granny is a lot peppier and more bubbly than the way I actually speak in real life. Or maybe I'm just not used to hearing myself recorded.

Not sure that this was the best example but I'm betting no one else records their octogenarian grandmother for a class assignment...

Visual Signals

I had to pick a Mad Men clip (can't wait till season 5 starts up in 2012!) but I think it's an interesting case study because a sales pitch has certain elements in common with a negotiation or even an arbitration. Don Draper is pitching an idea to clients (in this episode, it's Kodak looking to advertise their "carousel" photo projector). I know from other episodes I've seen that Draper knows how to turn on his salesman pitch. While watching without sound, I was looking for cues that he was working the sale, exaggerating, or just playing his Ad-man role.

Here's the play-by-play:

The scene starts and you see a handshake across the table - so we know there's some kind of business interaction going on.
I know who the clients are (because they're not regular characters) but you can also tell they're clients as they sit down because they're a bit more relaxed and are obviously there in a passive role because they're receiving the presentation, not trying to make the pitch. The Sterling Cooper ad guys are on the other side of the table laughing - in business chit chat mode.
Don stands at the head of the table, ready to be the presenter and lead the clients through his pitch. His body language is interesting, because he has to be both authoritative (knows his stuff, and knows better than clients what advertising will work best for their product) and catering to what he thinks they will want to hear. He has to instill confidence in them that they've come to the best ad agency in town so you can see he keeps his hands close to his body with very subtle movements and he squints his eyes a little as he explains his idea. To me his facial expressions make it seem like he's telling a story and he's really thinking about it, and he wants them to truly consider it as well. Then he lightens up a bit and his gestures become more open and he smiles - apparently attempting to appeal to them or perhaps to instill a feeling of understanding, that he knows what they want and he's ready to show them what it is. When he smiles, looks away, seems to joke and uses wider gestures, I get the feeling this is salesman mode and is a little less genuine. The camera jumps to the Kodak guys and one looks a little guarded, not as ready to jump on the Draper saleswagon, but the other looks more indifferent like he's just taking it in.

When the lights go off and he starts the projector, you watch him narrate his own family photos for the Kodak guys. The first few photos jump up so we can see a Draper family moment and then flash to Don explaining it to the guys. You can imagine that he's got a script down, trying to appeal to their emotions (the best way to make a sale). But as he goes through the photos, even Don looks more and more touched by his family moments, and his facial expression make it seem as if he's being really honest - as a viewer I have the feeling that whatever he's telling them is genuine and heartfelt. [If you keep up with Mad Men this would tip you off to a parallel plot line concerning the tension between Don and Betty Draper and how he's often a very cold presence in his home life and does not usually betray any feelings of warmth with his wife or kids like he appears to when he's looking at these photos. So this scene not only shows his ad idea (the Carousel), but also gives some insight into a sentimental side of Don we don't see too often with regard to his family life.] You can see how his expression changes based on whether it's a photo of him and his children (proud papa face), or him and Betty (some expression bordering on love or underlying affection or something - granted I'm probably reading into this because I know too much about their history together).

At the end of the show, one of the ad guys from creative looks overwhelmed by emotion and jumps up and runs out of the room. I'm not sure what that's about, except to surmise that the pitch far exceeded his expectations. The lights come on and the Kodak guys swivel around slowly in their chairs. Though they're not smiling, you can tell they're deep in thought about the pitch, presumably because it deeply appealed to them. It definitely doesn't seem as if the pitch fell flat. Even without any of the traditional positive feedback, their thoughtfulness makes you think that they bought into the sales pitch and are deeply impressed - it exceeded their expectations as well, or else they had never thought about their product in that way.

http://www.youtube.com/watch?v=R2bLNkCqpuY

Narrative in Graphics: Maus II

Read this first! Please click to enlarge.

The assignment for this week's post was to choose a graphic format, whether a comic, graphic novel, or cartoon and choose 6-10 frames that tell a story. I'm not sure if anyone recognizes the above, but this graphic novel, called Maus II by Art Spiegelman (he has drawn several covers for The New Yorker through the years) won the Pulitzer Prize in 1992. Maus I & Maus II are separate volumes depicting the Holocaust using mice as Jews, cats as Nazis, and other animals for various other "races". The Wall Street Journal called Maus II "[t]he most affecting and successful narrative ever done about the Holocaust" (emphasis added). Think about that! A graphic novel depiction to rival Spielberg's "Schindler's List".

It's safe to say that everyone knows the general story of the Holocaust, most famously, perhaps, the horrors at Auschwitz, so maybe my choice was easy because anyone reading the above already has the gist. I like that this particular page gives insight into the narrator of the novel: from the first panel we know we have a first person perspective of a prisoner. By panel 3 you can see that we've got two time frames, the past of the Holocaust at Auschwitz, and the present with our narrator, now an older guy (mouse) telling his story in broken English to a younger guy many years after the war (glasses on the older guy illustrates that some time has passed). This particular page describes not only that he suffered by laboring for very little food and minimal pleasures, but also that he starved and worked for weeks or even months to save up (the second panel illustrating the "currency" and exchange rate) so that he could arrange for Anja to be near him while they were both prisoners in Auschwitz (for some context, Anja was his wife - but from these panels alone you could deduce that it was a female he deeply cared for - could have been a friend, daughter, sister, lover - doesn't really matter).

I could have chosen from many of the pages in either Maus I or Maus II, but this particular one packs a lot of the overarching narrative structure into very little space with few words and it stands alone with explanation from the previous and subsequent frames. We have the two main characters, with mention of a third important character, Anja, a date (October 1944), the location (Auschwitz), and the general idea is that we're reading the first person story of the Holocaust as told by someone who survived to tell it.

[Aside: Perhaps this is more explanation than necessary, since you can see the panels for yourself, but if you can't tell, I'm a huge fan of Art Spiegelman (incidentally, this is his father's story, and he is the younger mouse in the frame interviewing his father so that he can write a comic about his Holocaust experience - very meta of him...). He is a narrative genius, and I knew immediately that this is what I wanted to share for this week's assignment.]

At first I didn't really understand how this assignment fit into a course on international arbitration, or how it would improve my own narrative style. However, now I can see that it's a perfect illustration of framing. Imagine a novel you've read that's been adapted for the screen. Many people criticize how a beloved novel has been changed because the film is limited to using only visuals and dialog to demonstrate what was so elaborately described using text only. On the other hand, a film adaptation can do a lot with very few words, using specifically placed dialog, body language, facial expressions and pure action without a voice-over narrator to tell you what's happening - you just experience it for yourself. A graphic novel is akin to a film in that it can use only visuals to tell the story with some dialog in speech bubbles, or there can be an extra narrative element, like Spiegelman has done, in which the illustrator can use visuals combined with a true narrator (here we have one level of narration by the older mouse to the younger one, and a second level of narration as told by Spiegelman himself, the artist of the novel/other mouse in the frames who is relaying the story to us, the reader audience).

With our oral arguments, we have to take real life action and put it into words which will explain the parties' motives, the background, and the general "gist" of the interaction to an audience, the tribunal. It really is a hard thing to do without reducing it to some stark business transaction dealing with only dates, # of goods, and $$$. I see now that it's important to humanize the parties and use a narrative to impart the bigger picture of what was going on with the deal, and not just what appears in contract terms in the record.

Research Methods in Int'l Arbitration

After reading Stacie Strong's article, I guess I'm not so surprised to hear that there aren't many publications about research methods on international arbitration. Just reading about the various treaties and arbitral rules and the Model Rules this semester has demonstrated that the lack of a set code or civil law makes the practice area quite nebulous, and there is no one handbook on how to navigate preparing for an arbitration.

I know we've seen these laid out before, but I wanted to take this opportunity to memorialize Strong's list of the types of authority used in international arbitrations on my blog so I can reference them quickly in the future:

"In all, there are seven types of legal authority, including, in roughly descending order of importance:

• International conventions and treaties;
• National laws;
• Arbitral rules;
• Law of the dispute (procedural orders and agreements between the parties);
• Arbitral awards;
• Case law; and
• Scholarly work (treatises, monographs and articles)."

I'm particularly heartened to hear Strong say that by the time the oral arguments roll around "most of the advocacy has already been done and is firmly constricted within the confines of binders of documents and long pages of arguments and prior statements.” I definitely prefer the brief-writing to the oral argument portion of arbitration and think that it's definitely the more important portion (perhaps that's my bias, but I think it's still true given the huge amount of prep time in comparison with a few minutes in front of the tribunal). Strong's tips are helpful (and timely for our class) and I will consult them again when the problem goes out in a couple of weeks.

Oral Advocacy

Apologies for my tardiness. I, too, am playing catch-up after a busy music weekend at ACL.

One thing I can say is that I wish I had read this section before my first oral argument. Granted, the actual experience is a much better learning mechanism than just reading about it, so the retrospective advice is still helpful as I reflect on ways to improve for next time.

The keys I took away from this reading are:
-Preparation (pretty obvious)
-Simplicity

Clearly prepping and rehearsing are essential. I think with last week's first run, part of my insecurities were that I wasn't sure I completely understood everything I needed to address so my notes were more scattered than they should have been, and I focused way more on just trying to understand the problem than on rehearsing my own argument. In the future, I will spend way more time preparing so that the fundamentals will be covered and I can focus more on the delivery.

Simplicity, however, is probably underemployed, at least by new advocates. No matter if the audience is a bunch of 5th graders or Nobel Laureates, everyone appreciates a clear, simply-put summary of the main points. I think before reading this, I would have assumed that I need to make sure to use all the appropriate technical language from the relied upon conventions and codes and dazzle the audience with all the fine points and complexities of the issues. It is still necessary to understand all of that and have it at my disposal for nuanced questions from the tribunal, but it will probably be a useful tool for me as the speaker to learn all the necessary details, and then go back and simplify everything down into layman's terms at the very end of the preparation and rehearsal process.

It seems that there could be an inclination for advocates who are comfortable with "performing" to add some dramatic flair to both the opening and closing arguments. When I've observed opening and closing statements that appear to be more performance and less "straight shooting" I'm sometimes a bit skeptical and slower to warm up to the underlying message. Cheesiness is to be avoided at all costs, and I'm a pretty big critic of overt displays of bravado. I understand that everyone has his and her own narrative style, and story-telling flair can grab the tribunal or jury's attention and be much more memorable than a more conventional recitation of the issues. I just don't think that this style is for me. That being said, I am interested in working on developing my own narrative style, and the first step is being well-prepared so that once I've covered my bases I can focus on the delivery and being receptive to the audience.

CISG: Formation

I read this week's assignment with an eye toward the first in-class oral argument. As such, I paid special attention to the section on p. 21-23 regarding validity. The validity of the "alleged agreement" is part of the question in this week's problem regarding whether the Super Market rescinded their offer in time to avoid conclusion of the contract, which may determine whether Wine Co-op can bring them into an arbitration. (I'm over-simplifying, but this is the issue I want to focus on for this post.) I realize that this section of the CISG is differentiating between "formation" and "validity" because the CISG governs formation of a contract, whereas it does not govern other validity issues. Rather than focusing on examples of validity issues (and there are others in our problem), I just want to focus on the definition of formation as it applies to the ability to bring a party into an arbitration.

Take a look at the CISG's definition of formation:
"The predominant opinion correctly assumes that 'formation' in the sense of the CISG is the so-called 'external consensus', i.e. the mechanics of how the contract is concluded (e.g. offer and acceptance)."

Without choosing the claimant or respondent's side, I initially interpreted "formation" to include the process leading up to the actual conclusion of the agreement, "how the contract is concluded," whether a conclusion is reached or not. To me, this jibes with "external consensus" because the attempt to form an agreement leads to a general consensus before any signatures are involved. To consider formation to be the concrete, signed, concluded contract, would mean that "formation" excludes all the steps leading up to the agreement. I don't agree with the notion that if the existence of the concluded contract is disputed, it means that the side believing that no contract was formed can refuse to participate in an arbitration on the basis that there was no formation. To say that you must have a contract in order to argue about whether or not there is a contract negates the purpose behind arbitrating to resolve such disputes. Thus, if you can only arbitrate relating to the "formation, interpretation, breach or termination" of the contract, then formation should include the process leading up to the conclusion of the contract to allow arbitration to resolve whether or not an agreement was ever officially concluded or not.

Reservations of the New York Convention

Please excuse my delay... I promise to be on schedule next week!

After reading more in detail about the New York Convention, I'm left with several questions regarding the (1) reciprocity and (2) commercial relationship reservations, and have attempted to construe various hypothetical situations that might not fall under the New York Convention.

Regarding reciprocity, if for instance, the United States enters into an agreement with a country who has not signed the New York Convention, such as Germany, will there only be reciprocity if the location of the arbitration is in a State which recognizes the New York Convention? Meaning that despite the fact that Germany is not a signatory and has not agreed to be held to the New York Convention, if they are compelled to arbitrate in a third state (neither the U.S. nor Germany) which has signed the New York Convention, then they are held to it? So it seems that as long as 2 of 3 factors agree to the New York Convention (at least one party, and the State where the dispute is arbitrated, or else both parties in a neutral state), the award will be enforceable.

The commercial relationship stipulation makes sense to me, because it seems that the vast majority of arbitrations center around international trade and commerce in some sense. But does this mean that arbitration under the definition of the New York Convention will never involve something political in nature, or a dispute that involves an individual as one of the parties? For instance, say the Jamie Leigh Jones v. Halliburton/KBR had actually occurred with international players in some sense, for instance a foreign "subsidiary" of KBR (I add quotes because in my hypo it would be a company that was originally autonomous and later acquired by KBR such that it is more definitively foreign and not just located in a foreign state) and perhaps even if Jamie Leigh Jones had been a foreign national contractor instead of an American. In that case, a term of her employment was that any dispute would be resolved through arbitration. Because her claim was not commercial in nature, would this mean that it would not have been subject to the terms of the New York Convention? And what would be the ramifications of recognizing and enforcing an award in such a dispute not subject to the New York Convention?

I assume we will clarify many of these issues in class, but these are the immediate questions I had in response to this week's reading.