The role of emails and covering letters in negotiating ...

English for Specific Purposes 44 (2016) 68–81

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English for Specific Purposes journal homepage: http://ees.elsevier.com/esp/default.asp

The role of emails and covering letters in negotiating a legal contract: A case study from Turkey Anthony Townley a, b, *, Alan Jones a, c a

Macquarie University, Sydney, Australia Koç University, Istanbul, Turkey c Australian National University, Canberra, Australia b

a r t i c l e i n f o

a b s t r a c t

Article history:

Negotiation is fundamental to legal practice. Previous analyses of this important interactional and discursive process have often focused on negotiation as a form of bargaining carried on by business people. In this case study we examine legal negotiation of a commercial contract undertaken primarily by two counterpart lawyers; one based in Istanbul and the other in London. These lawyers are centrally concerned with reaching mutual agreement on the terms and conditions of a particular Distribution Agreement through the exchange of a small set of emails and covering letters recording the negotiations. These two genres help to stabilise and progress the negotiation process and account for negotiation activities recorded in successive marked-up drafts of the Distribution Agreement. We use Swalesian analyses of functional Moves and Steps to identify structural similarities and differences between the documents. We also identify certain salient discursive features of these documents and the use of the Track Changes software function and mark-up to negotiate proposed changes within the contract. Intertextuality and discursive hybridity emerge as important dimensions of all of these text types. Our findings should contribute to developing more authentic English for Legal Purposes (ELP) pedagogies for law students and legal practitioners. Ó 2016 Elsevier Ltd. All rights reserved.

Keywords: Legal contract negotiation Email communication Genre analysis Intertextuality and interdiscursivity English for Legal Purposes

1. Introduction The legal formalisation of commercial deals throughout the world is primarily entrusted to lawyers to negotiate and draft enforceable agreements or contracts. As a concept in applied linguistics or discourse analysis, contract negotiation is often considered a ‘cognate’ of bargaining (Firth, 1995, p.10), involving an inherently competitive exchange of proposals and counterproposals, motivated by a need to reach an agreement that will essentially be a compromise between the competing interests (Gulliver, 1979, p.71). It can often be a drawn-out process and the negotiation of each contract is the outcome of – and indelibly bears the traces of – complex interactional processes involving a range of different discourse participants, including lawyers, the contracting parties and other business and management professionals, and a determinate range of discourse types and strategies (Cheng & Mok, 2008). Following Levinson (1979, 1992) and Candlin (2006) we can classify contract negotiation as an activity type, entailing “the strategic and dynamic deployment by participants of their discursive

* Corresponding author. Macquarie University, Sydney, Australia. E-mail addresses: [email protected] (A. Townley), [email protected] (A. Jones). http://dx.doi.org/10.1016/j.esp.2016.07.001 0889-4906/Ó 2016 Elsevier Ltd. All rights reserved.

A. Townley, A. Jones / English for Specific Purposes 44 (2016) 68–81

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resources, often in a co-constructed and collaborative way, in the pursuit of particular professional, institutional and personal objectives” (Candlin, 2002, p.2). Existing studies of commercial negotiations in English have predominantly focused on business or management dimensions of the bargaining processes. Researchers have documented communicative practices, oral and written, that foster trust-based relationships and achieve successful commercial outcomes (Charles, 1996; Cortés de los Ríos, 2010; Gimenez, 2000, 2001; Jones & Sin, 2013; Planken, 2005; Rogerson-Revell, 2007). Some have focused on letters of negotiation (Pinto dos Santos, 2002) and email negotiation strategies (Jensen, 2009) in business-type contexts. This paper provides a new perspective of legal negotiation by examining the main textual genres used in the course of one particular negotiation of a commercial contract between lawyers representing a UK-based principal owner of duty-free products and a distributor in Turkey and Northern Cyprus (i.e. a Distribution Agreement). Although limited and preparatory in nature, this case study is one of the few so far to attempt to capture in any detail some of the communication strategies and practices used by lawyers to negotiate a commercial contract. 1.1. Some pedagogical issues and considerations The development of legal practice communication skills does not usually come within the scope of formal legal education or training and any efforts to improve legal communication skills are often remedial rather than needs based (Hafner, 2008). Instead, learning to function and communicate as a professional lawyer has traditionally been achieved through an experiential or implicit sense of what is appropriate, gained at first in law school (Mertz, 2007) and then through working closely with other lawyers. A significant implication of this for law graduates is that while they possess a more or less passive familiarity with certain key genres and their textual features, they are not always able to produce 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 (Breeze, 2014). For such legal practitioners, systematic study is often the most time-efficient solution, aimed at raising awareness both of the principal genres, the rhetorical strategies involved in these and, more generally, the interactional pragmatics involved in English-language negotiations. The past two decades have seen a growing body of literature with analyses of a wide variety of legal genres. Studies range in emphasis from analyses of the rhetorical structure and lexico-grammatical features of abstracts in legal journals to the use of case notes in both legal practice and educational contexts (Tessuto, 2012) and the use of the IRAC (Issue, Rule, Analysis, Conclusion) framework in a formal letter or predictive legal advice (Breeze, 2014). Genre analysis is also increasingly used to probe legal discourse norms, such as discourse practices in arbitration contexts (Bhatia, 2011; Gotti, 2014; Hafner, 2011) and legislative reform (Bhatia & Bhatia, 2011; Bhatia, 1993). However, none of these studies have included analyses of the contract negotiation process in a legal context, its discursive practices or its textual genres. A certain lack of progress in supplying authentic materials for such pedagogies is reflected in repeated calls for genre, language and discourse based analyses of real-world professional activities (Bhatia, 2008; Bremner, 2008; Evans, 2012; Northcott, 2008). However, investigation of this type of rich social-institutional context throws up tremendous challenges for the applied linguist, unless she or he can foster what is still a relatively rare type of collaboration or “interprofessional practice” (Sarangi, 2005), a relationship that gives the applied linguist access to the insights and motives of an expert practitioner in a specialised domain. The first author of this paper is currently engaged in on-site research within another law firm in Istanbul and, in a future paper, we hope to examine the institutional and socio-pragmatic conditions of commercial contract negotiations in that firm, documenting the text-external factors that influence the writing process. In this paper we focus on the textual use of email and letter genres and the function of ‘Track Changes’ and mark-up to negotiate amendments to successive versions of a commercial contract. Though based on a small number of exemplars, it provides a linguistic-based account of an authentic contract negotiation process. 1.2. The contract negotiation process The negotiation process usually begins with a generic or template version of a contract. It is common practice for the party initiating a commercial deal (such as the principal under a distribution agreement) to begin the negotiation by tabling a contract they have used previously or a template commonly used for that type of commercial agreement. Such documents tacitly support the principal party, i.e. the one initiating the negotiation and the counterparty may be constrained by terms and conditions suited to a different negotiation agenda. It is thus incumbent on the counterpart lawyer to limit the influence of the template contract by responding and proposing amendments that protect the commercial and legal interests of their client. We trace this process not as it is realised in face-to-face interactions but as framed in a chain of carefully composed emails and attached letters of advice. The other main textual practice for contract negotiation involves making proposed amendments to the text of the contractual document and inserting marginal comments (using Microsoft editing tools in ‘Track Changes’), referred to collectively as ‘mark-up’. Such amendments are in a sense provisional, pending challenge and/or ratification by the counterparty’s legal representatives. Legal negotiation discursive practice therefore requires lawyers to carefully identify all proposed changes made to the terms of the contract (even without any accompanying textual explanation) and this is

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facilitated by the Track Changes software assigning different colour mark-up to changes made by different authors to the same draft document. This paper is one of the first studies to provide authentic insights into this critical textual resource and professional practice for legal contract negotiation. 2. Key analytical dimensions of contract negotiations Analysis of contract negotiation discourse in this study primarily involves use of the theoretical concepts of genre, intertextuality, and interdiscursivity, or discursive hybridity, by which we mean the mixing of linguistic features belonging properly to different legal discourses. 2.1. Genre The work of academics and professionals is today largely carried out through the medium of recognisable, consistently structured texts, and these textual genres have become crucial to how analysts understand knowledge-based interactions and relations in today’s professional world (Fairclough, 1992, 1995; Hyland, 2002, 2003; Swales, 1980, 1990). The particular form and function of a specific genre is socially authorised and recognised through “staged, goal oriented social processes” (Martin, 1993), which, in turn, are embedded in the discursive practices of members of specific disciplinary cultures. In terms of analysis, an established genre can be understood in terms of a series of functions or “Moves” (Swales, 1990, 2004). A move can be identified as part of a text that realises a particular purpose within the text, which can consist of a number of constituent functions called “Steps”. To develop a robust analytical model of a particular genre it is often necessary to recognise certain moves and steps as optional while some can be recycled (Swales, 1990). Moreover, moves or steps are sometimes combined in a single sentence, a strategy we describe in terms of (syntactic) embedding. In practice, genre conventions are adhered to with a greater or lesser degree of fidelity, sometimes depending on the level of expertise of the writer and sometimes on the writer’s situated socio-pragmatic aims and institutional constraints (Bhatia, 2004, 2012). As the dominant mode of communication in most professional contexts, there has been increasing research into the use of emails over the past two decades. For negotiation purposes, existing studies have mainly focused on email communication used for internal and external business communication (Gains, 1999; Gimenez, 2000, 2006; Jensen, 2009; Nickerson, 1999, 2000; Warren, 2013). Many studies argue that email communication represents an effective communication system to maintain interpersonal relations and build long-term business relationships for successful negotiations, not dissimilar to faceto-face interactions (Galin, Gross, & Gosalker, 2007; Ho, 2011; Sokolova & Szpakowicz, 2006). This of course depends on lexico-grammatical choices and strategies to achieve certain interactional goals at different stages of the negotiation process, relative to the context. For instance, the strategic use of hedges (perhaps, would and could), boosters (clearly, obviously and demonstrate), attitude markers (interested, welcome, and glad), self-mention (the uses of we versus I) and engagement markers (“I look forward to hearing from you”) are recognised by researchers (Jensen, 2009; Nickerson, 2000; Planken, 2005; Sokolova & Szpakowicz, 2006) as an important means of facilitating communication, supporting a writer’s position and building a positive relationship with an audience. The ubiquitous use of email correspondence in all workplace environments these days makes it unfeasible to identify a common communicative purpose or rhetorical structure for email within the meaning of genre (Koester, 2010). It is therefore more appropriate to define email communication as having different, but inter-related linguistic patterns and shared purposes. In this study we will treat the emails and letters dealing with proposed amendments to successive versions of the contract under negotiation as members of a single broadly defined genre. Individual texts may differ slightly in terms of rhetorical structure and function, on particular occasions and for particular recipients; however, they overlap in that all aim at explaining the form and/or substance of proposed amendments to the terms of the contract. All of these texts are both transactional and relational in that they resemble other workplace legal genres such as letters of advice to clients (Breeze, 2014). They are also dialogic, in so far as they are embedded in a chain of textual and extra-textual messages. Analysis of these texts and the discourses they embody is also carried out in terms of two other key analytic concepts, intertextuality (Bhatia, 2004, 2008, 2012) and interdiscursivity (Bhatia, 2004, 2010; Candlin, 2006). 2.2. Intertextual and extra-textual cohesion The analysis of intertextuality allows discourse analysts to trace the conceptual and pragmatic links between texts. This claim is based on the premise that the content and generic properties of any given text can draw upon prior texts and in turn shape or influence subsequent texts (Bhatia, 1993, 2004; Bremner, 2008; Devitt, 1991; Warren, 2013). This continuity in discourse is fundamental to analysing the contract negotiation process, which involves multiple chained interactions with clients, and within and between competing law firms. Devitt (1991) distinguished between three distinct types or levels of intertextuality. The most common type is referential intertextuality, which is observed when a text refers to another text or to specific aspects of that text. Generic intertextuality describes the way texts, and discursive practices enshrined in texts, are influenced and shaped by genre conventions, the affordances available to members of the relevant discourse community (Bremner, 2008). And functional intertextuality refers to the way that different texts qua genres rely upon one another and interoperate to achieve a specific purpose or set of purposes. In this way, each textual product is tied back to antecedent discourse (either written or spoken) at the same time


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that it anticipates subsequent discourse. On this basis, every textual document implicated in a negotiation, including email correspondence, letters of advice and changes recorded in mark-up within consecutive versions of the contract, represents a unit in an intertextual chain. 2.3. Discourses and discursive hybridity Different disciplines and professions and even different workplaces institutionalise different varieties of discourse, and the language of the legal profession represents a readily recognised example of a highly specialised discourse that is impenetrable to lay people. Indeed, legal language is frequently described, pejoratively, as legalese and as a kind of ‘jargon’. However, the technical and abstract nature of legal terminology reflects a legitimate need to re-categorise everyday actions and events in terms of highly technical legal concepts (Bhatia, 1993; Goodrich, 1986), producing a discourse in which cases and issues are resemioticised and possible outcomes precisely articulated. The language used in written documents such as contracts is a prime example of the way everyday terms and understandings are translated into technical concepts and complicated textual structures. The same technical terms can also appear in the informal communication used for negotiation purposes, such as emails and comments on marked-up drafts of the contract, but here they are typically embedded in less formal face-sensitive language characterised by a wide variety of speech acts and politeness strategies. Tiersma (1999) differentiates between a formal, operative or performative style, as exemplified in legally enforceable documents such as contracts, and a less formal, expository or persuasive style characteristic of the talk that goes on between lawyers as well as between lawyers and their clients. The latter reflects the dominant ‘style’ of the documents under examination here, where the lawyers explain and justify changes to the wording of the contract in emails and covering letters. We will categorise Tiersma’s two styles as discourses, since both reflect and indeed realise the knowledge structures and values that underlie the practice of the law. The performative discourse of legal documents is characterised as more technical or legalese, with the primary purpose to formulate everyday terminology and understandings into terms that are objective and rule-based. The result is that many terms used in contracts have unrelated everyday meanings, and the language is often arcane and abstruse. While the persuasive discourse is superficially regarded as more comprehensible to lay audiences, the persuasive discourse used when professionals interact – orally or in writing – also entails the frequent use of technical terms as well as grammatical constructions that are foreign to everyday language use. Persuasive negotiation discourse also relies on the skilled deployment of a range of sophisticated strategies aimed at maintaining and developing a range of relevant interpersonal relationships while subtly negotiating meanings and outcomes. The two different discourses often interact in complex ways in the textual products that realise the negotiation of contracts. Thus the language used in negotiative genres can be characterised as interdiscursive in the way these genres blend the technicality associated with the performative discourse of legal instruments with interactional features characteristic of a discourse that aims to persuade while also maintaining professional and/or commercial relationships and mutual trust. In both cases the former discourse is embedded in the latter, since persuasive purposes and relational issues are paramount in those contexts. Bhatia (2010, 2012) defines interdiscursivity as the appropriation and use of discourse-specific semiotic resources across different genres, professional practices and professional cultures in pursuit of a single communicative purpose or set of purposes. Fairclough (2011) speaks of discursive hybridity, which he defines as “the mixing of different discourses, genres and styles” and the “disarticulation” and “rearticulation” of relationships between discourse and other social elements (p.1). We have preferred Fairclough’s terminology in this article. 3. Nature of the data set The data set provided by the Turkish law firm in Istanbul relates to negotiations it carried out in 2010 with a UK-based Duty Free company concerning a Distribution Agreement pertaining to Duty Free products to be made available for sale in Turkey and the Northern Cyprus Turkish Republic. There are only three discourse participants involved in this case study of contract negotiation, namely the Turkish lawyer from Law Firm A (Ms B), her foreign1 client who is seeking to establish a distribution business in Turkey (Mr A, the distributor), and the counterpart lawyer based in London representing the owner of the principal UK company supplying the duty free products (Ms C). While the owner of the company does not participate in the negotiation discourse, he is referred to in documents as Mr D. As detailed in Table 1, our data set is comprised of seven (out of eight) successive drafts of the Distribution Agreement in which amendments are suggested or made in the form of mark-up and the negotiation process begins with a template agreement provided by lawyers representing the UK-based Principal company (this is referred to as Version 1). As discussed above, the main focus of analysis for this study are six emails, four of which are prepared by the Turkish lawyer representing the distributor (Ms B) and sent to her client (Mr A). The other two emails (E5 and E6) are exchanged between Ms B and Ms C, who is the counterpart lawyer representing the English Principal company. The other key documents for analysis in this study are the two covering letters of legal advice attached by Ms B to E4 and E6 and the use of mark-up to negotiate amendments to Version 5, also attached to E4.

1

The term ‘foreign’ is used here to identify the distributor client as not being a Turkish national whose first language is English.

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Table 1 Details of two email data sets. Emails E1 E2 E3 E4 E5 E6

Date & Participants Lawyer-to-client data set June 7 – Lawyer (Ms B) to Client June 17 – Lawyer (Ms B) to Client August 23 – Lawyer (Ms B) to Client October 15 – Lawyer (Ms B) to Client Lawyer-to-lawyer data set October 29 – Counterpart lawyer (Ms C) to Lawyer (Ms B) November 23 – Lawyer (Ms B) to Counterpart lawyer (Ms C)

Attachment(s) with mark-up DA DA DA DA

Version Version Version Version

1 2 3 5 & Covering Letter

DA Version 6 DA Versions 7 & 8 and Covering Letter

The two data sets were originally obtained by the first author, in 2012, for the purpose of post-graduate research. The ethical aspects of that study were approved by the law firm in Istanbul and the Macquarie University Human Research Ethics Committee in accordance with the Australian Code for the Responsible Conduct of Research and the National Statement on Ethical Conduct in Human Research (2007). Due to the fact these records were obtained after the Distribution Agreement was finalised in 2010, it was not possible to attend any meetings between the parties or record any telephone conversations. Furthermore, Ms B was no longer working at the law firm and not available to interview for ethnographic research purposes. The other discourse participants were also unable to be interviewed due to confidentiality constraints. Despite these research limitations, the textual data collected does embody the authentic discursive practices of lawyers communicating for contract negotiation purposes. 4. Analysis and findings As a first step we distinguish between emails sent from the Turkish lawyer Ms B to her client Mr A (E1–4) and those exchanged between counterpart lawyers (E5&6). The two types of email differ slightly in terms of rhetorical structure and function, reflecting a “particular rhetorical audience, purpose, subject, and occasion” (Devitt, 1991, p.340). Emails sent by lawyer to client are designed to provide written notification and justification (in terms of purposes or reasoned explanations) for specific contractual clauses and issues that are under negotiation – while doing this in the best commercial law interests of the client. Even though some of these issues have been discussed with the client during a conference call (see M3 in Table 3) and a face-to-face meeting (see M3a in Table 4), proposed changes negotiated with the counterpart lawyer are explained more systematically – and ‘on the record’ – in the form of the emails and covering letters sent to the client. On the other hand, the counterpart lawyers exchange emails primarily to notify one another of changes that have been marked-up in attached versions of the contract under negotiation (often without the need to explain the legal significance of these proposed amendments). Ms B also attaches formal letters to emails sent to both client (E4) and counterpart lawyer (E6) to provide more detailed information about contractual clauses still under negotiation during the latter stages of the bargaining process. 4.1. Negotiation discourse between lawyer and client 4.1.1. Emails As noted above, the emails sent by Ms B to Mr A primarily function to account for negotiation activities with the counterparty and to explain the pragmatic purpose or reasons for the lawyers making or rejecting proposed amendments to the Distribution Agreement. The research implication is that the client Mr A is unfamiliar with the legal meaning or implications of these proposed amendments and he relies entirely on Ms B to negotiate on his behalf. Even though these emails embody different functions and slightly different lexico-grammatical and stylistic realisations, they exhibit the generic move and step structure (Swales, 1990) set out in Table 2a. Within each client email Ms B chooses from three different variations or types of Main Move 4 to explain the exigencies of the particular clause or legal issue under negotiation: 1) Notifications of Action Taken [NotActTkn], 2) Disagreement/Rejection of Proposed Action [NotDis/Rej], and 3) messages Giving or Withholding Advice [þAdv/Adv] (see Table 2b). It is important to first note that many of the moves and steps listed in Table 2a are optional and not always realised as separate sentences. For example, Orientation (M3) and Steps 1 and 2 are often realised parenthetically, as phrases or clauses embedded in sentences that foreground Notification of Attachment(s) (M2) and the Main Move 4. Tables 3–5 illustrate this syntactic device. For example, from E3 (Table 4): In light of the foregoing [M3], firstly, with a view to emphasize the right of exclusivity of the Company in the Territory set out under Article 2.3 of the Agreement [S1], we have inserted a reservation to Article 2.5 of the Agreement .. [M4]. Three moves are always present [as marked by the heavy þ symbol in Table 2a]: M1 – Salutation (Addressing); M4 – the Main Move, which is constituted by the different types of legal advice representing the core communicative purposes and function(s) of the message in Table 2b; and M7 – Signing Off.


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Table 2a Move and Step structure of emails/covering letters (schematic summary). Moves D þ/

M1 M2

þ/

M3

D

M4

þ/ þ/ D

M5 M6 M7

Steps

Salutation – Addressing Notification of Attachments þ/ preparatory justification for amendments/actions taken Orientation – establishes the message as a link in a chain of intertextual and/or extra-textual interactions Main Move – see Table 2b – a single message can contain more than one M4

þ/ Step 1 Justification Purpose: gives the pragmatic purpose of the main move(s), i.e. M4 þ/ Step 2 Justification Reason: explanation(s) and/or reason(s) underpinning move(s), i.e. M4

Request for Action/Assistance Offer or promise of further assistance/help Sign off

Table 2b Different types of Main Moves (M4) in emails/covering letters. [NotActTkn]

[NotDis/Rej]

[þAdv/Adv]

Notification of action taken, typically, amendments pre-emptively inserted in Agreement

Notification of disagreement with or rejection of proposed amendments to Agreement

Advising/Not advising about legal negotiation actions that might be taken

a) Contextualisation – the preliminary moves In discussing the rhetorical features and function of the entire move structure in Table 2a, we begin by highlighting the referential intertextual function of Move 2 to notify the recipient of any attachments to the email, typically a draft version of the Distribution Agreement. Move 3 – Orientation – then achieves the important cohesive function of explaining to the reader how this particular email message fits into an overall sequence of negotiative activities, by referring to a previous email or extratextual interaction. For example, in E3 (see Table 4), Ms B begins by informing the client that: “Please find attached a clean and marked up copy of the Distributorship Agreement (the “Agreement”) to be executed between Mr. A (the “Company”) and Mr. D (“Mr. D”) [M2]. As you will note, in accordance with our meeting dated August 18, 2010, in addition to reflecting the comments of Mr. D [M3], we have incorporated certain amendments.[M4]. Moves 2 and 3 can also be realised as reduced relative or participial clauses, a syntactic embedding strategy that is well exemplified in the short email in Table 6. b) Main moves and supporting steps The Main Move (M4) represents the primary communicative purpose of emails sent by lawyer to client to provide an explanatory account of negotiated clauses and related issues under the contract, around which the steps cluster in a preparatory or ancillary fashion. As demonstrated in E1 (see Table 3), an email can contain more than one of the three different types of Main Moves to notify the client of negotiative action taken and to provide legal advice. Although optional, Steps 1 and 2 are frequently used to support the Main Move (M4). In S1 the sender notifies the recipient of the pragmatic purpose of the current negotiation activity. In S2 the sender can provide explanations and/or reasons for amendments proposed or already made to the current version of the contract, or for a particular issue under negotiation (described in Move 4). Explanations and reasons can be either external (legal, institutional) or internal, based on the type of negotiation activity and the needs or interests of the client. As noted above, Steps 1 and/or 2 are also often combined with the orientating Move 3, and all of these often appear as adverbial phrases or clauses preceding a clause realising the Main Moves of the message (M4). c) Closing moves Moves 5 and 6 then function to request further action or assistance from the email recipients and/or to offer or promise these recipients further assistance/help. Moves 5 and 6 are optional depending on the specific activity embodied in the email. For instance, at the preliminary stage of negotiation in E1 (see Table 3), Ms B uses Move 5 to arrange a meeting with the client for further discussions. Move 7 is used by both lawyers to Sign Off in each email with a closing phrase such as “Kind regards” and the author’s name. This move can also customarily include the author’s professional title and/or position within an organisation.

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4.1.2. Attested move-step structures in emails The relatively short email (E1) in Table 3 below exemplifies most of the moves and steps of the generic structure in Table 2a, except for S1 and M6. The numbering of the moves (as M1, M2, M4a and M4b etc., etc.) in the left hand column shows how moves are recycled, embedded or otherwise ‘juggled’ in actual texts.

Table 3 A short email (E1 – lawyer-to-client) containing two types of Main Move: notification of action taken [M4a] plus notification of inability to advise [M4b]. Main Moves are underlined. Politeness markers are in bold.

M1 M3, M4a M2 S2, M4b. M4c M5 M7

From: Ms B Sent: Wednesday, June 07, 2010 20:45 PM To: Mr. A CC: Subject: RE: Draft Attachment: Distribution Agreement Version 1 Mr A, I hope you are fine. As discussed in our conference call [M3], we have reviewed and commented on the draft Distributorship Agreement before our meeting [M4a: NotActTkn]. Please find attached the text including our preliminary comments thereto [M2]. Please kindly note that, the counter party recommends that the Distributorship Agreement to be governed by English law [S2], and therefore, we cannot advise as to whether the agreement will be binding under English law and on any related risks [M4b: þAdv/Adv]. With respect to the competition regulations, we would like to remind you of the obligation pertaining to notification once again [M4c: þAdv/Adv]. Please note that I will be in Istanbul next week, therefore we would appreciate if you could propose a date for our meeting. Kind regards, Ms. B

A significant feature of this email relates to the intertextual use of Move 2 to refer to an attached version of the contract, and Move 3 to refer to related text-external interaction (conference call), which represents an external link in the chain of interactions that make up the legal negation activity type. The inclusion of Move 2 in all of our example texts reflects the fact that this particular negotiation was relatively short and condensed, involving the exchange of only six emails that focus on amendments to successive versions of the contract under negotiation. By comparison, emails exchanged during a more complex and protracted negotiation process would not always include such intertextual focus on attachments or discourse activities. The other main feature is the use of three different Main Moves to notify the client about negotiation Action Taken [M4a: NotActTkn], to Withhold Advice [M4b: þAdv/Adv] and to Give Advice [M4c: þAdv/Adv] about different clauses under negotiation. A slightly longer and more complex email than E1 is provided in Table 4. Here – in E3 – the elements of the generic structure are again intertwined and recycled within the meaning of syntactic embedding. For example, the combination of M3 and M4 is recycled three times, while M3 þ M4 þ S1 occurs twice.

Table 4 Freestanding and recycled moves in a more complex email (E3 – lawyer-to-client). The body of email is divided into three paragraphs corresponding to three Main Moves [M4]. M1 M2 M3a M4a

M3b, S1a, M4b

M3c, M4c, S1b M6 M7

Dear Mr A Please find attached a clean and marked up copy of the Distributorship Agreement (the “Agreement”) to be executed between Mr A (the “Company”) and Mr D (“Mr D”). As you will note, in accordance with our meeting dated August 18, 2010, in addition to reflecting the comments of Mr D, we have incorporated certain amendments to the Distributorship Agreement, which mainly focus on (i) emphasizing the right of exclusivity of the Company in the Territory; (ii) reserving the cases where the Target Depletion Volume is not satisfied due to any global or local crisis as an exception to the Distributor’s termination grounds; (iii) setting forth a final court order rather than a petition with respect to the winding up/insolvency/bankruptcy/liquidation of the company as a pre-requisite criteria for execution of the right to terminate the Distribution Agreement [M4a: NotActTkn]. In light of the foregoing, firstly, with a view to emphasize the right of exclusivity of the Company in the Territory set out under Article 2.3 of the Agreement, we have inserted a reservation to Article 2.5 of the Agreement to the effect that the Company shall be able to claim right and remedy from Mr. D if Mr. D appoints another distributor to the Products in the Territory or sells the Products itself in contrary to the provisions of the Agreement [M4b: NotActTkn]. Likewise, with respect to the comments of Mr D concerning erasing of the last sentence of Article 2.3, we have only erased the wording “customers” [M4c: NotActTkn] so as to make sure that Mr. D informs the authorized distributors in other territories about the right of exclusivity of the Company in the Territory. Please do not hesitate to contact us should you have any queries. Kind Regards, Ms B


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We can identify certain genre-specific linguistic features that help realise the moves in emails like E3 in Table 4. In this relatively complex text there are three Main Moves of Notifications of Action Taken (NotActTkn) that focus on the “right of exclusivity” under the contract (in bold italics in the text). These are labelled M4a, M4b and M4c, respectively. Each NotActTkn (M4) is introduced and “framed” by Move 3 as a series of adverbial phrases that typically link back and legitimate the actions taken in light of either a) exophoric reference to a face-to-face interaction or b) endophoric reference to information given or points already made in the preceding text. Justification for the actions taken, i.e. changes to the contract, is partly realised by Orientation moves (M3), and partly by Justification Purpose Step (S1). Hence we have a repetition of M3 and/or S1 in relation to each of the three Main Moves (M4). These usually precede the actual description of the negotiation action taken, but in the last case (i.e. in relation to M4c) a Justification Purpose Step (S1) follows NotActTkn. In Table 4, we have put all the legitimatory/ justificatory moves in italics, whether preceding or following the Main Move 4 to highlight the amount of interactional “work” that lawyers dedicate to these support functions in providing comprehensive information and legal advice to clients. It is clear from this textual analysis that Ms B controls the negotiation process on behalf of the client Mr A. Moreover, the tenor of this message indicates that she feels she is on very firm ground, and that her bargaining position, and that of her client, is now unlikely to be challenged by the counterparty. Her offer to re-engage at M6 in Table 4 is thus, on the face of it, somewhat disingenuous, and is in any case represented merely as a readiness to answer “queries” from the client. Finally, in this message, we note the use of institutional “we” of the law firm in reporting the actions taken by, or at least reported by, Ms B. This choice is no doubt designed to make the actions taken more authoritative and less open to challenge or renegotiation. Sentences are also bald or “unhedged”. This too can be interpreted as meaning that the actions taken are being represented as non-negotiable. 4.1.3. Covering letters As noted in Table 1 above, Ms B attached a covering letter (“Letter of Advice”) to E4, thus opening an additional communication channel to provide her client with more detailed explanation and justification for the amendments she had made to Version 5 of the Distribution Agreement, also attached to the email. Although both E4 and the letter include the same rhetorical function of Move 3, the covering letter has a different rhetorical structure for Move 4 and Steps 1 and 2. Ms B uses paragraph headings [in bold] to focus discussion on the most contentious clauses still under negotiation (M4) and quotes at length to explain the reasons (S2) for making the proposed amendments (M4). In comparison, her emails do not contain such paragraph headings and are mostly retrospective in briefly explaining the reasons for amendments already made to less contentious terms of the contract. This is illustrated in Table 5 with an excerpt from the letter attached to E4. Here Ms B disputes amendments previously proposed by the counterpart lawyer to clauses 2.6 and 6.1 (M4) by providing detailed justifications for not accepting them on behalf of her client (S2). Table 5 Except from covering letter attached to E4 (lawyer-to-client). Bullets represent personal names; the Main Moves (M4) are underlined; the proposed amendment to Clause 2.6 by counterpart lawyer, in quotes, is in bold italics. Dear Mr. A Further to our meeting of yesterday, please find attached the Exclusive Distributorship M3, M2 (taken directly from the text of email E4) Agreement (the “Agreement”) to be executed between [C] (the “Company”) and [C] (the “Distributor”). As per our high-level review of the Agreement, our main comments are as follows: Clause 2.6: We have not understood the rationale of insertion of “shall bear the risk M4 [NotDis/Rej]: Indirect rejection of the proposed amendment. including without limitation, the risk of customers’ defaults or claims”. The S2: Offers two explanations in terms of a) a pre-existing Distributor shall bear its own risks arising from its commercial relationships with its commercial understanding and b) in terms of Turkish law. customer [S2a]. However, please bear in mind that under Turkish law, if there are defective goods purchased by a customer from a distributor company, the customers shall have the right to choose filing their defectiveness claims to either the Distributor or the Company [S2b]. Clause 6.1: The goods inside the Products cannot be inspected through opening of the S2: A complex three part explanation. Products’ packages since the Products shall be distributed to the Distributor’s M4 [þAdv/Adv]: Recommendation about actions that might be clients in original form [S2a]; thus, the Distributor shall not be held liable for the taken. defects of the goods inside the Products, i.e. if the bottle is broken etc. through its inspection within 7 days [S2b]. Accordingly, only the exterior part of the packages of the Products can be inspected within 7 days and the Distributor shall not be held liable for the goods inside the Products. [S2c] In that regard, our recommendation shall be either deletion of this paragraph, or extension of the days granted for the Distributor to inspect the goods.

The reason for this different rhetorical structure is attributable to the timing of the letter attached to E4. Having already progressed through a process of negotiation with the client and the counterpart lawyer in the previous month, the more contentious clauses of the Distribution Agreement in the covering letter remain unresolved and require more detailed explanation and justification reasoning (Step 2) for either accepting or rejecting the proposed amendments (M4). The same rhetorical structure is used by Ms B in the covering letter she attaches to E6 and sends to the counterpart lawyer during the final stages of negotiation, as discussed in Section 4.3 below.

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It is also salient to note that neither of the covering letters drafted by Ms B function for the purposes of Move 1 or Move 2, which is a standard feature of email communication. Furthermore, neither letter contain Moves 5 through to 7, as evidenced in the emails. These findings support the view that emails are used as the primary communication medium for contract negotiation and the covering letters are strategically used as email attachments to provide more detailed legal advice, within a more minimal and focused rhetorical structure.

4.2. Discursive hybridity The emails and covering letter exchanged between Ms B and her client Mr A exhibit a blend of discursive features that can be characterised as hybrid. Thus embedded in the interpersonal, relational discourse of the emails and the covering letter we find significant amounts of ‘legalese’. The term ‘legalese’ refers here to the pragmatically performative language of an enforceable legal contract, language which is highly impersonal and rich in legal and quasi-legal terms, many of which have an arcane ring (Goodrich, 1986; Tiersma, 1999). While striving to build and sustain professional relationships and, simultaneously, to protect and advance her client’s interests, Ms B draws frequently on this register, whose prestige, legitimacy and authority has deep historical roots. This hybridity is what marks the language of the emails and letter as legal-professional rather than technicallegal. Below we list four salient grammatical features that characterise the interpersonal texts presented below and which reflect the interpersonal and transactional goals of the authors while lending them a legal-professional and authoritative tone: i) the auxiliary shall following third person subjects, in active or passive voice (e.g. “. the Company shall be able to claim right and remedy from Mr. D if Mr D appoints another distributor to the Products in the Territory.”; “.the Distributor shall not be held liable for..”) ii) use of the present perfect to describe actions taken (e.g. “we have incorporated certain amendments..”; “. we have slightly amended the wording.”) iii) adverbial phrases or clauses contextualising the discussion (e.g. “As you will note, in accordance with our meeting dated August 18, 2010, in addition to reflecting the comments of Mr D, .”) iv) frequent adverbial phrases or clauses justifying actions taken or proposed (e.g. “with a view to emphasize the right of exclusivity of the Company .”; “.so as to make sure that Mr. D informs the authorized distributors.”) Thus the language used in the emails and covering letter is more complex than that of the contract since it not only explains negotiation of legal provisions but is also focused on achieving important interpersonal and transactional goals. Specialised legal terms like breach of contract and right of exclusivity, terms germane to the substance of negotiation, along with those distinctive grammatical features that are the signposts of legal argument (therefore, to the effect that, with respect to), are embedded in a discourse that is essentially characterised by face-work and by marked levels of politeness (Brown & Levinson, 1987; Goffman, 1967). But they also mark it as a discourse that strives to retain the precision and authority of legal reasoning (Jones & McCracken, 2007). This legal-professional discourse is complex partly because of its lexical and grammatical hybridity but mainly because of its orientation to the fulfilment of these often-competing goals (see Tracy & Coupland, 1990; Tracy & Eisenberg, 1990/1991). The discursive hybridity surrounding the Main Moves in E3 (Table 4) is evident in the following extract for M4b: In light of the foregoing, firstly, with a view to emphasize the right of exclusivity of the Company in the Territory set out under Article 2.3 of the Agreement, we have inserted a reservation to Article 2.5 of the Agreement to the effect that the Company shall be able to claim right and remedy from Mr. D if Mr. D appoints another distributor to the Products in the Territory or sells the Products itself in contrary to the provisions of the Agreement. We first note non-everyday prepositional phrases like ‘in the light of’ followed by the arcane anaphor ‘the foregoing’; ‘with a view to’; ‘to the effect that’ ‘in contrary to’. There is also the seemingly redundant expression: “right and remedy”. The extract also illustrates the legal discourse norm of using shall to represent contractual obligations, especially as between individuals. The long run-on sentence illustrates lawyers’ use of subordinate clauses to represent chained legal processes (Bhatia, 1993). In the example, Ms B also imports phraseology from the contract, such as ‘the right of exclusivity of the Company’; and ‘the Company shall be able to claim right and remedy’. An important feature of the professional register used by Ms B to achieve interpersonal goals with her client, as used in all types of business negotiation and workplace communication generally, is the concept of politeness (Cortés de los Ríos, 2010; Evans, 2012; Gimenez, 2000, 2001; Jensen, 2009; Sokolova & Szpakowicz, 2006). Following Goffman (1967) and Brown and Levinson (1987), Holmes (1995) defined politeness as “behaviour which actively expresses positive concern for others, as well as non-imposing distancing behaviour” (p.5). She commented further: In other words, politeness may take the form of an expression of goodwill or camaraderie, as well as the more familiar non-intrusive behaviour which is labelled “polite” in everyday usage. The pragmatic particle please is one of the most transparent politeness markers that can be used by a requester to accurately define communicative aims (Cortés de los Ríos, 2010). Ms B uses it consistently in her correspondence to urge the client to pay attention to specific items of advice. Please is often intensified by addition of the adverb kindly, as in the request in E1 to “please kindly note” a recommendation from the counterpart lawyer. Ms B also uses the would þ like formula to soften a firm and


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possibly unwelcome reminder: “we would like to remind you of the obligation pertaining to notification once again” (also in E1). Where a requested action is perceived as being particularly onerous, Ms B is careful to make the request more conditional still while metaphorically broaching the question of the addressee’s ability to respond: “we would appreciate if you could propose a date for our meeting”. The formula “we would appreciate if” suggests that complying with the request will create a form of indebtedness towards the client. This formula, in this context, constitutes a socio-pragmatic strategy, softening or minimising the inherently face-threatening nature of the request, while appearing to imply a professional openness to the ongoing negotiation of terms within the framework established by the client’s commercial law interests (Brown & Levinson, 1987). The dialogic nature of this legal communication involves the use of the pronouns (I, we and you) described by Breeze (2014) to articulate thematic components and to clarify actions and responsibilities for the writer and addressee. For predictive legal advice about the possible judicial outcomes for a dispute, the focus is on what options or actions are available for the client with the dominant use of second person singular “you” (Breeze, 2014, p.288). However, these emails and covering letters used by Ms B for explaining negotiation activity only refer to the addressee (you) at Move 1 in E1 (see Table 3) to express goodwill (“I hope you are fine”) and to offer further assistance at Move 6 in E3 (see Table 4) by saying (“Please do not hesitate to contact us should you have any queries”). Conversely, the emails and letters show a predominance of institutional “we”, usually in announcements of actions (already, pre-emptively) to describe and/or justify the purpose of the current legal negotiation activity at Step 1 or to provide notification at Move 4. A common feature of these emails is the use of plural pronouns by Ms B to indicate that she represents the entire law firm when accounting for legal negotiation. This lends her emails institutional legitimacy and authority, such as: “we have deleted or inserted or amended (this provision)”, “we are of the opinion” or “our main comments are as follows”. This type of collective self-reference is used 37 times in total as opposed to only 3 instances of the first person singular pronoun ‘I’ across all correspondence as set out in Table 6. Table 6 Distribution of personal pronouns across all correspondence.

E1 E2 E3 E4 Letter attached to E4 E5 E6 Letter attached to E6

I

We

You/your

2 1

4 0 9 3 7 2 3 9

3 1 2 2 0 2 2 2

4.3. Negotiation discourse between counterpart lawyers Compared with what happens in lawyer-client communication, we see in Table 1 that email correspondence between the counterpart lawyers is very limited. The main function of E5 and E6 is merely to notify the counterpart lawyer of the existence of the amended or updated documents attached to the emails (as set out in Table 7) and not to explain or otherwise justify any part of the negotiative activity that has gone on. Instead, for example, Ms B uses the covering letter of advice attached to E6 (with the same rhetorical organisation of clause headings in the letter addressed earlier to the client in E4) to inform the counterpart lawyer of certain final amendments that have been marked-up for further negotiation within the final Version 8 of the Distribution Agreement. These emails and covering letter primarily function to point to and acknowledge a chain of intertextual and extratextual interactions that are recorded by the Track Changes function and mark-up within the version of the contract attached to the emails. Table 7 Moves in a short email exchanged between counterpart lawyers (E6).

M1 M2a, M3a M2b, M3b M2c, M3c M6 M7 a

From: Ms. B Sent: 23 November 2010 14:30 To: Ms C Cc: Subject: RE: Distribution Agreement Attachment: Distribution Agreement Versions 7&8 Explanatory notes Dear Ms C Please find attacheda (i) the draft Exclusive Distributorship Agreement (the “Agreement”) reviewed by [Ms B’s law firm], (ii) the Cover Letter we have prepared reflecting [Ms B’s law firm’s] comments on the draft Agreement, and (iii) the comparison document mirroring the differences between the draft Agreement we have received from your part and the draft Agreement reviewed by [Ms B’s law firm]. Due to a problem caused by the mailbox size, we will send you the Turkish version of the Consumer Protection Law in a separate e-mail. Kind Regards, Ms B

NB The main body paragraph has been artificially divided into mini-paragraphs to distinguish clearly the successive Moves 2 and 3.

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4.3.1. Track Changes in mark-up Using mark-up to highlight amendments and deletions to versions of the contract is extremely constructive for counterpart lawyers to exchange proposals and counterproposals and negotiate terms of the contract, especially when different colours can be designated to clearly identify who is proposing the changes. Furthermore, using the Track Changes software to insert comments alongside proposed amendments serves two important negotiation discourse functions. First and foremost, they function as the most direct (and arguably most effectual) way for the lawyers to notify the counterpart of the reasons for making proposed changes highlighted in mark-up or to raise questions for further clarification. In professional legal practice, these intertextual functions also improve reference and retrieval of information and increase levels of accountability among the discourse participants. Below we discuss the intertextual function of these negotiation discourse activities between the counterpart lawyers recorded in Version 5 of the Distribution Agreement. By clearly highlighting proposed amendments to the contract in mark-up, quite often there is no need for the counterpart lawyers to provide any written explanation for changes made to the wording of the contract. This is particularly the case when the proposed amendment is based on sound commercial legal principles and common business practices that should be evident to the counterpart lawyer. For example, the original template wording of clause 9(A) is amended in mark-up by Ms B to limit the time for remedying any breach of contract from 45 days to 20 days (see Figure 1). Based on her recognition of the commercial necessity for the parties to remedy non-performance of important contractual obligations in a shorter period of time, Ms C makes no effort to re-negotiate and agrees to the proposed changes by retextualising the coloured mark-up to standard black letter font in the successive version 6 of the contract.

Figure 1. Negotiation discourse using mark-up and comment software functions.21

However, other proposed amendments do require explanation. For example, Ms B inserts a detailed comment next to clause 9(B) in Figure 1 because this regulation is unique to Turkish jurisdiction and may be unfamiliar to the UK counterpart lawyer. Ms B therefore needs to justify her proposal for a final court order based on bankruptcy with the intertextual explanation in the comment box next to it. Even though this particular example has been scripted in formal and polite terms, the use of the comments feature is significant for what it lacks; there is no language of objection or persuasion, no detailed explanation for the changes made, nor is there any real legal justification given. Instead, the counterpart lawyers merely state the obvious in the footnotes to refer to amendments that have been made without the mark-up software function to more clearly identify them. Instead, the stylistic register of most of the comments used by the counterpart lawyers for negotiation purposes are more minimal and ‘direct’ through the pragmatic use of “command, request, advice, suggestion, tentative suggestion (positive actions) .” and “prohibition and negative advice and refusal and denial (negative actions)” (Sokolova & Szpakowicz, 2006, p.291). For example, Ms B responds to a proposed amendment by Ms C to clause 4.9 (E) by stating, “We cannot accept for the Distributor to engage in such contract, unless the Company gives prior written consent”. One reason for simplifying the register of language is to reduce the propensity for confusion, particularly across different cultural and institutional contexts (Townley & Riazi, 2014). It is also arguably due to the fact that the counterpart lawyers are only in communication with each other and do not need to use the interpersonal discourse strategies for client advice discussed in section 4.2 above. For example, Ms C does not need to carefully explain the legal nature of the intellectual property (IP) rights


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regulated under clause 7.4(B) by simply stating, “The Company needs to be indemnified of any use by the Distributor not stated in this Agreement concerning IP”. Another reason for the abbreviated nature of the comments is due to the structural proximity with the clause being amended or discussed, which contains all the relevant details of the legal issue. So, even when Ms C erroneously refers to “contract” in one of the comments relating to clause 4.9(E), the counterpart lawyer can easily identify that she is actually referring to the type of “conduct” regulated by this contractual provision. This small but significant error in word-choice would probably not be as transparent to the reader in an email or covering letter and would need further clarification, disrupting the negotiation process. 5. Some conclusions Writing for legal purposes is still rarely taught in ways that reflect a systematic linguistic analysis of legal texts and language. Emails have replaced letters in many functions of legal practice, but these still need to be carefully worded and structured to achieve the desired effect. And letters are still exchanged (explanatory letters, Letters of Advice, etc.) along with draft documents (e.g. different types of contracts) in legal practice. The drafting of contractual documents now customarily involves making changes and writing comments and explanations in the form of computer-mediated ‘Track Changes’ and mark-up. These real-world actions and communicative interactions are what give meaning to linguistic strategies and communicative skills typically taught in the classroom. More and more voices are calling for pedagogies that situate writing tasks in real-world scenarios, authentic or simulated (Bremner, 2008; Evans, 2012). One of the first proposals of this nature is that contained in Candlin, Bhatia, and Jensen (2002) where the authors sketch out the parameters of an “intrageneric” (p.311) pedagogical activity, involving typically enchained texts, that focuses “both on the integrity of the individual legal genres, and on their intertextuality and interdiscursivity” (p.312). In this regard the authors also emphasise that features of chained genres will “depend on local professional (and pedagogic) contexts” (Candlin et al., 2002). Even though limited in scope, the analytical findings of our current research provide preliminary insights into the intertextual and interdiscursive nature of authentic legal negotiation discourse. Most other studies of legal negotiation have been concerned with the analysis of disputes and remedies, costs and benefits, profits and losses, but in contexts and for purposes not entirely relevant for ELP pedagogy. For example, Hollander-Blumoff (2005) surveyed academic law reviews and legal journals on the topic and found that most of these articles typically “have at least some descriptive elements (e.g., how legal negotiation does work) and some prescriptive elements (e.g., how legal negotiation should work - that is, how practitioners should negotiate or how scholars ought to conceptualize the legal negotiation process)” (p.151). However, none of the articles rely on the systematic application of genre analysis because most are not premised on any type of research-based linguistic analysis of legal texts and discourse. As we have seen in the analytical findings above, the main texts produced during the process of a commercial contract negotiation, as carried on for the most part by legal professionals, are emails and covering letters that share the common purpose of identifying, explaining and justifying proposed amendments recorded in mark-up in successive versions of the contract under negotiation. The language of these informal, almost backstage genres is discursively hybrid. It blends elements of a highly specialised technical discourse with a less technical, more interpersonal professional discourse which is characterised linguistically by what are, by many standards, marked levels of politeness. The fact that each instance of the two genres refers both backwards and forwards, to previous and forthcoming texts as well as to extratextual interactions, marks them as components of a purposeful discursive chain. They are material links in a chain of immaterial social interactions, functioning as tactical moves in the legal negotiation. The emails and covering letters are linked to the use of mark-up by counterpart lawyers to finalise the textual formulation of the proposed amendments within successive versions of the contract. By means of intertextual cohesion, the three text types support one another for a common purpose of legal contract negotiation. By describing the contract negotiation process and its discursive features, intertextual and interactional consequences, the findings from this case study represent new possibilities for the design of authentic pedagogical materials and effective teaching strategies that will help develop a degree of discourse expertise in ELP students and legal practitioners, especially those with English as an additional language. In particular, empirically grounded explanations of the rhetorical features and function of using emails and covering letters for contract negotiation purposes extends theoretical knowledge of this broad, interrelated genre in the ESP literature and promotes the ability of non English speaking lawyers to use English in the context of legal negotiations more strategically and more effectively. 5.1. Further research This paper has focused on the textual aspect of commercial contract negotiations, while merely alluding to the parallel chain of professional–discursive interactions that take place around the construction of the texts. This leaves virtually untouched a vitally important aspect of contract negotiation, undertaken orally, over the telephone or during meetings and

2 Please note that one of the authors used his name in the deletion and comment functions in order to protect the confidentiality of the law firm participating in this research study.

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conference calls. Indeed, Northcott (2008) has recently emphasised the urgent need for research into such oral legal genres. Oral interactions of various kinds are reflected in the texts we have examined, in allusions to communicative events or acts that precede or are to follow the textual productions. Further research, perhaps using methods such as conversation analysis, might examine oral discourse activities to provide empirically grounded advice on how to manage oral negotiation discourse and the special relationships that exist between lawyers and their clients or between lawyers and counterpart lawyers. For now, the textual analyses undertaken for this case study should begin to make a useful contribution to the development of effective ELP pedagogies for those learners seeking to improve written communicative competence for contract negotiation. Even though limited in scope, the analytical findings of this research case study do provide authentic insights into the intertextual and interdiscursive nature of legal negotiation discourse.

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