Analysis of authentic legal negotiation discourse: towards an ELP pedagogy
thesisposted on 28.03.2022, 09:28 authored by Anthony Richard Townley
Lawyers have traditionally learned how to negotiate the operational terms of contracts based on an experiential or implicit sense of what is appropriate, gained through working closely with other lawyers. A significant implication for law graduates is that while they may acquire a more or less passive familiarity with key contractual genres from formal education, they are not always able to produce situation-specific examples of such genres and remain relatively unaware of the discursive subtleties of situated practice in the legal-professional workplace (Bhatia, 2004, 2008). These challenges can be much more acute for the growing body of lawyers from non English speaking backgrounds and contexts, many of whom will need to negotiate contracts in English as the primary lingua franca across a wide range of multilingual and multicultural contexts (see Breeze, 2014). In response to these pedagogical challenges, I carried out intensive research in a commercial law firm in Istanbul, where I gained access to the authentic legal texts and discourse practices pertaining to the negotiation of a Mergers-and-Acquisitions (M&A) type transaction, conducted in English, with European partners and counterpart lawyers. Applying the innovative multi-perspective research model of Candlin & Crichton (2011), I aimed at providing richly contextualised analyses of a wide range of discursive and discourse related practices and of the interactional roles and relationships of the legal and business professionals involved in the negotiation process, as they operationalise their own individual repertoires and expertise. My findings show how lawyers and other professionals, using English as the lingua franca in an international business and legal context, depend on the strategic use of language and discourse(s), as mediated by the intertextual use of emails and covering letters to negotiate and record negotiation activities. Using discourse and genre analytical methodology, I identify key lexicogrammatical features and rhetorical structures both in email communications and in the negotiated contractual documents. Analysis also shows how these genres overlap and interact as part of genre repertoires (see Orlikowski and Yates, 1994a, 1994b) and how certain genres are adapted and hybridized to create new genres to achieve context specific discursive goals as a type of genre ecology (see Spinuzzi & Zachry, 2000) for this M&A transaction. Other important findings relate to the institutionalised use of theTrack Changes editing tools in Microsoft Word as the dominant communicative function to negotiate amendments to contractual documents, where it is supported by other ancillary discourse types like advising and informing. This thesis is to my knowledge the first of its kind to produce a comprehensive intertextually and interdiscursively oriented ontology and ecology of legal negotiation discourse. The study makes an original contribution to applied linguistics and especially to the emergent field of professional discourse studies in situated legal contexts. My hope is that findings from this thesis will also be used to develop more effective pedagogy for teaching English for Legal Purposes (ELP) by situating learning in rea lworld scenarios.