Email: For Lawyers, It's Legal Writing; For Educators, It's An Opportunity

The Maryland Law Review Endnotes has posted The New Legal Writing: The Importance of Teaching Law Students How to Use E-Mail Professionally, by Kendra Huard Fershee.  Before you read any further, I want to be clear of my potential biases: Kendra is my wife (and, lest there be any doubt, I think she's great). And while students should be taught proper use of email in the legal world, it's not just students. If you read legal blogs, such as Above the Law, which has an email scandals section of the blog, you know that the proper use of mail is a lesson that needs to be learned by students in and outside of courses (see, e.g., here and here), law professors, and by lawyers everywhere.

Here's an excerpt rom the article:

The benefits of e-mail to lawyers are vast and cannot be easily quantified, but lawyers who are not careful can also suffer greatly through the misuse of e-mail. Problems with tone can inadvertently and counterproductively anger a client, opposing counsel, or the court.  . . . [A] lawyer can build credibility by evincing intelligence in her writing, and being articulate is one way to do that. It is, however, unfortunately much easier to lose credibility by sending inarticulate communications, particularly those that can be easily shared with others. E-mail mistakenly forwarded to the wrong person can create embarrassing consequences—even professional ethics repercussions—for the person forwarding the information.  And including sensitive client information in e-mail can create discovery problems that can adversely affect clients who are under investigation or engaged in litigation.

While electronic communication has a few potential downsides, the good news is that lawyers and law students can be trained to use e-mail properly. In fact, lawyers and law students must be trained to use e-mail properly to help them avoid making mistakes that electronic communication can invite. Obviously, there is no way to avoid every mistake that can be made in e-mail, but with careful instruction, those mistakes can be limited to the good old fashioned kind that lawyers have made on paper since the beginning of the legal profession. The combination of common use among lawyers and the potential for dangerous errors in e-mail make it imperative that legal writing professors include instruction about how to write e-mail as part of their curriculum. Failing to teach students how to use e-mail professionally could be likened to failing to teach students how to write a legal memorandum (setting aside, for the moment, the burgeoning debate about whether the legal memo is dead with the advent of the shorter, more direct legal analysis e-mail lawyers commonly use now).

There is empirical evidence that e-mail is the most commonly used form of legal communication, meaning it is a part of practice with significant risk and high potential rewards. To take this a step further, in my view, it's not just legal writing faculty who need to be teaching about the use of email; it's all faculty. If we are to prepare students for practice, they need to know that poor quality emails reflect poorly on their abilities as lawyers.  We need to provide feedback when email is used sloppily or inappropriately, and we need to provide opportunities for students to use email in professional or semi-professional settings. And this can be minor or major part of a course.  As a small example, when I require a paper in a course, I require students to turn in a hard copy and send me a soft copy via email.  I can use that opportunity to reinforce what I expect, individually and/or as a group. (The article has some useful tips for teaching in this context (e.g., "Remember Your Audience and Avoid Finger-Wagging"). 

Email is a major part of what most of us do, and we need to respect it as part of the educational process. It's one of many ways law schools can help demonstrate, on day one, that their graudates are in fact ready for the professional world, because most of them are. We should make sure they know how to demonstrate that in all settings, or we've come up short. 

--JPF