The Rhetoric of Email in Law Practice

Abstract

This article responds to and appears alongside an article by Professor Kirsten Davis in the December 2013 issue of the Oregon Law Review. An interesting debate has arisen among legal writing faculty with respect to the primary form of communication today between attorneys, and between attorneys and clients. Although most legal writing faculty agree that teaching traditional memoranda continues to have pedagogical benefits for first-year students, there is disagreement on how to conceptualize and teach the use of email memoranda in law practice. Professor Davis argues that to think of and label “email memoranda” as something different from traditional memoranda is misguided. In contrast, this article argues that email memos are indeed different — that the medium of email has altered the nature of the message (as Marshall McLuhan might say). In other words, the process of writing email in the context of a conversation changes both the format and the nature of legal analysis. This author also believes that the question for legal writing faculty is not whether to teach traditional memoranda or email analysis but how to teach both well to prepare law students for the real world of law practice.

Keywords: objective analysis, predictive writing, traditional memoranda, email, law practice, rhetoric