Process Over Product: A Pedagogical Focus on Email as a Means of Refining Legal Analysis

• Author: Katrina June Lee
• Position: Associate Clinical Professor of Law, The Ohio State University Moritz College of Law. The author is grateful to Susan Azyndar, Alexa Chew, Kristin Hazelwood, Ellie Margolis, Ingrid Mattson, and Kathleen Narko for their comments. The author thanks Kristen Konrad Tiscione for providing inspiration and encouragement for this Article.
• Pages: 655-670

2016] EMAIL AS A MEANS OF REFINING LEGAL ANALYSIS 656

and informal memoranda in law practice.

6

I agree that email

communications should be taught because they are a primary mode of

communicating legal analysis in law practice. To prepare law students for

law practice, legal writing professors need to teach students how to write the

types of documents that they will be writing.

Building from Professor Tiscione’s and others’ work on assigning

emails in legal writing courses, I offer in this Article another reason why the

legal writing curriculum should include emails: writing emails setting forth

legal analysis can help students refine their legal analysis skills in a way that

writing the traditional, long-form memorandum does not. This Article

focuses on email communications not as a writing product, but as a vehicle

for enhancing the legal writing process.

7

Legal writing professors should

embrace email as a means to enrich their teaching of legal analysis and to

help students develop their legal analysis skills. Email writing should be

assigned because it can help students through the challenge of performing

legal analysis, and it provides a student with a powerful tool for working

through the legal writing process.

This Article suggests that email writing should join free writing and oral

presentation as valuable tools for helping students develop analytical skills.

8

This Article builds on at least two areas of scholarship on legal writing

pedagogy. First, it describes the literature documenting and advocating for

a focus on process, rather than product, in teaching legal writing.

9

With a

focus on the legal writing process, professors have discussed how free

6

Id. (discussing a survey of practicing attorneys, which revealed the traditional format

and substance of the legal memorandum had become nearly obsolete in favor of substantive

e-mail as the preferred method for communicating with clients). See also Ellie Margolis, Is

the Medium the Message? Unleashing the Power of E-Communication in the Twenty-First

Century, 12 LEGAL COMM. & RHETORIC 1 (2015). Taking the prevalence o f email

communications as a given, Professor Margolis examines th e effect of technology on legal

analysis. See generally id.

7

In this Article, the author does not engage in the debate about whether the traditional

office memorandum is “dead,” as framed by Professor Davis. See Kirsten K. Davis, “The

Reports of My Death Are Greatly Exag gerated”: Reading and Writing Objective Legal

Memoranda in a Mobile Computing Age, 92 OR. L. REV. 471, 474 (2013).

8

See Lisa T. McElroy, From Grimm to Glory: Simulated Oral Argument as a Component

of Legal Education’s Signature Pedagogy , 84 IND. L.J. 589, 594 (2009); Pam Jenoff, The

Self-Assessed Writer, 10 LEGAL COMM. & RHETORIC 187, 187–88 (2013).

9

See Miriam E. Felsenburg & Laura P. Graham, A Better Beginning: Why and How to

Help Novice Legal Writers Build a Solid F oundation by Shifting Their Focus from Pr oduct

to Process, 24 REGENT U. L. REV. 83, 93 (2011).

2016] EMAIL AS A MEANS OF REFINING LEGAL ANALYSIS 657

writing and oral presentation are tools for developing legal analysis skills.

10

Second, this Article adds to the growing body of scholarship regarding

assigning emails in the legal writing classroom by discussing emails through

the lens of process-focused teaching rather than product-focused teaching.

11

This Article advocates for assigning email writing in the 1L legal writing

curriculum because drafting emails can help students develop legal analyses

for a major writing project, such as a formal office memo or an appellate

brief. The relative informality and familiarity of the email medium help

liberate the modern student writer and can create an opening for deeper

analysis where previously the student writer felt stuck or blocked.

12

The

email assignment can provide students a constructive break from traditional

legal memorandum or brief writing; with an email assignment in legal

writing courses, students are freed from the formal restrictions of the

memorandum.

13

This activity can help students refine their legal analysis

and revisit their memorandum with a more informed perspective.

Part II.A discusses how legal writing teaching developed to emphasize

process over product. Part II.B explores the connection between oral

argument and legal writing teaching. Part II.C reviews the connection made

by scholars between free writing and legal writing teaching. Part III, against

the backdrop of the reasons for assigning oral argument and free writing,

explains the benefits to the legal writing process of assigning email writing.

Part IV proposes ways to integrate email writing into the 1L legal writing

course to maximize its benefits to the legal writing process.

10

See Susan L. DeJarnatt, Law Talk: Speaking, Writing, a nd Entering the Discour se of

Law, 40 DUQ. L. REV. 489, 522 (2 002); Jenoff, supr a note 8, at 187–88 (arguing for free

writing in legal education to eliminate writer’s block); McElroy, supra note 8, at 589 (arguing

for oral argument as part of legal education).

11

See Hazelwood, supra note 2, at 284.

12

See Margolis, supra note 6, at 8–9.

13

Professor Tiscione once noted that she feels “liberated” when she writes emails, as

contrasted to how she feels when she is writing a memorandum with all of its formal

requirements. Kristen Tiscione, Professor of Legal Research and Writing, Georgetown

University Law Center, The Rhetoric of Email and Its Effect on Legal Analysis, Presentation

at the Fourth Annual Capital Legal Writing Con ference (March 1, 2014). Email is

“distinguished from traditional memoranda by its lack of format and the subsequent liberation

of the writer.” Kristen K. Tiscione, The Rhetoric of Email in Law Pra ctice, 92 OR. L. REV.

525, 538 (2014).