Demand Letters

5 things to consider:

• Purpose

• Audience

• Tone

• Elements

• Legal Ethics

Purpose of a Demand Letter

A demand letter is designed to persuade

someone to either:

–take action favorable to the interests of

your client, or

–to cease acting in a manner that is harmful

to your client.

Audience

A demand letter has 4 audiences:

• The person to whom the letter is addressed

• The lawyer who will advise that person

• Any other person to whom the recipient may show the letter

• Your client

Tone

• The dictionary defines "request" as:

– The act of asking, or expressing a desire for something;

something asked for; to express a wish or desire for, ask

for in a polite or formal way.

• The dictionary defines "demand" as:

– To ask for boldly or urgently; to ask for as a right or with

authority; to call for as necessary

A demand letter is designed to advocate a position and persuade the reader.

• To persuade, you should include 3 things in the letter: – State your client's position on the facts and the

law, – Tell the other side what you expect them to do,

and – Give them incentives to comply with your

demand.

Be firm, but reasonable.

• You want to make the other side worry, but you do not want to damage your credibility with all of your audiences.

• Be assertive, do not be a bully.

Write in a professional tone.

• You have to explain how the other side did something they

should not have done (or failed to do something).

– Try to avoid using an accusatory tone.

• If the law would not require you to prove motive in a court,

then do not address it in the letter.

– But if the governing legal rule contains a term like bad faith or

negligence, you must use that term and show how the facts satisfy

it.

Appeal to the recipient's self-interest.

• Try to think of realistic ways in which the other side might

actually be better off if they do what you want -- in

addition to avoiding the consequences you would bring.

• If your client knows the opposing party, ask what they

know about the opposing party's goals and the

approaches that are most likely and least likely to

persuade the opposing party.

Elements of a Demand Letter

Components:

• Beginning formalities

• Introduction/opening

• Facts

• Explanation

• Demand and consequences

• Conclusion/closing

• Ending formalities

Beginning Formalities

• Letterhead

• Date

• Client's name and address

• Salutation

Introduction/Opening

• Identification of the writer or client – Our office represents Mrs. Patty Shultz with

regard to her purchase of a washing machine from Appliance Central.

• Statement of the purpose of the letter – The purpose of this letter is to demand that

Appliance Central either repair or replace the washing machine, or refund Mrs. Schultz the full purchase price of the defective machine.

Facts

• A brief presentation of the background and key facts of the issue.

• The facts should be presented in a manner similar to a court brief. – Introduce the facts credibly and persuasively in a light

most favorable to your client's position. – Emphasize favorable facts. – De-emphasize or neutralize unfavorable facts.

Example

For completeness of this settlement letter, I've enclosed a copy of the police report prepared by the Seattle Police Department officer who investigated this collision. As you can see, Ms. Smith was legally stopped for a red light. The light changed, but heavy early morning rush hour traffic was slow to move from the intersection. Your insured crashed into the rear of Ms. Smith's car…. The enclosed police report shows that the investigating officer concluded that the collision was completely the fault of your insured, and that nothing Ms. Smith did (or didn't do) contributed in any way to the collision.

Explanation

• Explain carefully why the law favors your

client.

– Write in a manner that the recipient, possibly

a non-lawyer will understand.

• Avoid legalese.

• Summarize law rather than providing a technical

discussion.

Example

RCW 46.61.145 makes it clear that your insured had a duty - and violated that duty - to drive in such a manner that sufficient distance existed to allow your insured to stop without striking vehicles ahead: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

The case law also makes it absolutely clear that the following driver must drive his vehicle at sufficient distance behind the vehicle ahead to assure adequate time to stop and avoid a collision….(citation omitted)

In the absence of an emergency – which was not present in this case – a following driver who rear-ends a forward vehicle is negligent as a matter of law, meaning that your insured’s negligence will be established prior to trial. Miller v. Cody, 41 Wn.2d 775, 252 P.2d 303 (1953).

Example

The law in Washington is clear that, if the injured party presents any testimony that his/her pain continues to the time of the trial, an instruction on future damages should be given, whether or not expert testimony on future pain and suffering is offered:

Proof of pain and suffering as late as at time of trial even though subjective in character will warrant an instruction on future damages. The same is true of proof of disability and lost earnings. The continued existence of these elements of damage at the time of trial permits a reasonable inference that future damage will be sustained. Expert medical testimony to this effect may also be given but it is not essential. Such evidence if unfavorable is admissible however to limit recovery. (citations omitted)Bitzan v. Parisi, 88 Wn.2d 116, 122 (1977).

For Ms. Smith, her neck and back pain affect her every day. Her neck pain is such that if she rolls over while sleeping, the pain in her side wakes her. This happens at least two nights a week. She feels pain everyday in her job, and her pain worsens as each day goes on and as the week goes on.

Demand and Consequences

• The demand should be precise, say exactly what the consequences will be.

• The demand should include a clear and reasonable deadline.

A very thin line separates threats from stating what will happen if the other side does not satisfy your demand.

• Threat – If you do not resume deliveries by the close of

business on May 19, we will sue for damages and ruin your business.

• Stating Consequences – If you do not resume deliveries by the close of

business on May 19, the only way my client will be able to protect itself will be to sue for damages equal to its business losses. Those losses have been small through today's date, but they will become huge beginning on May 19.

• Depersonalize the consequences by de-emphasizing your role in them.

– Do not say "we will sue you for damages and ruin your business."

• Characterize the consequences as something you will be forced to do.

– The only way my client will be able to protect itself will be to sue for damages equal to its business losses.

Closing/Conclusion

• This is the last paragraph of the

explanation section, it should include:

– Standard closing statement

– Restatement of the relief sought

– Indication of what the next course of action

may be

ExampleThis is a clear liability claim. The collision was significant and the property damage

will make it easy for the jury to conclude injuries occurred.

Ms. Smith is an articulate, personable woman, who has worked hard as sole support of her family, and continues to do so. She'll present extremely well to a jury, and jurors will like her and want to do the right thing for her.

Ms. Smith’s medical care has been found to be reasonable and necessary by the PIP IME doctor.

She has continuing neck pain and problems which bother her every day and persist over a year after the collision. The presence of those ongoing problems, and the lack of any treatment likely to affect those problems has also been confirmed by the PIP IME. Ms. Smith will continue to have these problems, and if the case goes to trial, the jury will be instructed to consider future pain and suffering.

For all of these reasons, we believe this claim has a total value of between $25,000 and $40,000. Ms. Smith has authorized us to settle this claim for $32,500.

As the statute of limitations is approaching, we would appreciate your response within 30 days. If we cannot get this claim resolved within a reasonable period of time we will have to file a lawsuit against your insured to protect Ms. Smith’s rights.

We look forward to hearing from you.

Ending Formalities

• Parting comment – "Sincerely Yours," -- whatever is

customary in your office.

• Your signature over your typed name

Legal Ethics

There are ethical limits to what a lawyer can say in a demand letter.

ABA Model Rules of Professional Conduct

Rule 4

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

Rule 4.1Truthfulness in statements to others

• In the course of representing a client a lawyer shall not knowingly:

a) make a false statement of material fact or law to a third person; or

b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

Rule 4.3Dealing with an unrepresented person

• In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.

• When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

• The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Admissibility in Court

Federal Rule of Evidence 408 Compromise and Offers to Compromise

• Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

• Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Federal Rule of Evidence 408 Compromise and Offers to

CompromiseThe advisory committee notes explain the need for

the rule:Exclusion may be based on two grounds: (1) The evidence is irrelevant, since the offer may be

motivated by a desire for peace rather than from any concession of weakness of position. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances.

(2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes.

Wis. Stat. 904.08Compromise and Offers to

CompromiseEvidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, proving accord and satisfaction, novation or release, or proving an effort to compromise or obstruct a criminal investigation or prosecution.

Sources• Richard Neumann, Legal Reasoning and Writing.

• Louis Sirico, Jr & Nancy Schultz, Persuasive Writing for Lawyers and the Legal Profession.

• Lucy Katz, Winning Words: A Guide to Persuasive Writing for Lawyers.

• William Putman, Pocket Guide to Legal Writing.

• Bradford G. Moore, Attorney at Law, Bellevue, Washington for excerpts from his demand letter regarding Ms. Smith.