Legal Correspondence The Demand Letter
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Legal Correspondence The Demand Letter

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Legal Correspondence The Demand Letter Presentation Transcript

  • 1. Legal Correspondence The Demand Letter
  • 2. Types of Legal Correspondence
    • General Correspondence letters
    • Opinion letters (a.k.a. Client Advice)
    • Engagement letter (Retainer Letter)
    • Status letter (Duties under Rule 1.4)
    • Demand letter
    • Emails
    • Facsimile
  • 3. The Elements of a Letter
    • Letterhead
    • Date
    • Special Mailing Notations (such as “Registered Mail” or “Facsimile”)
    • Recipient’s Address
    • Reference (subject) Notation
    • Salutation
    • Body Paragraphs
    • Closing and Signature Block
    • Reference Initials, Enclosures, and/or Copies
  • 4. The Demand Letter
  • 5. Three Important Considerations
    • Purpose
    • Audience
    • Tone
  • 6. The Demand Letter
    • In a Demand Letter, an attorney seeks to assert a client’s rights or settle a legal dispute through letters to opposing parties or their attorneys.
    • In a demand letter, therefore, your purpose is to persuade the other party to comply with your demand.
    • Accordingly, you will advocate your client’s position by focusing on the facts and the law that support your client’s position.
  • 7. Audience
    • You must carefully consider the relative sophistication of your audience –
        • Is it opposing counsel?
        • Is it a layperson?
        • Is it a layperson with ready access to counsel?
        • Is it a corporation or corporate counsel?
  • 8. Tone
    • Your tone should be firm, direct, and professional. You want to appear firm and reasonable, but willing to cooperate.
    • Avoid two common pitfalls –
      • Being too “nice” to get the opposing party to like you.
      • Declaring war.
  • 9. Structure of Demand Letter
    • The Demand Letter has 4 Basic Parts:
        • The Opening or Introductory Paragraph;
        • The Factual Support Paragraph(s);
        • The Legal Support (Application) Paragraph(s); and
        • The Conclusion Paragraph.
  • 10. Opening / Introductory Paragraph:
    • The Opening Paragraph(s) should:
      • Identify the attorney’s representative capacity;
      • Summarize the purpose of the letter by identifying the exact problem and the “demand”; and
      • Set a tone for negotiations.
  • 11. Opening Paragraph: Example I represent Mr. and Mrs. McLean in the lawsuit they have recently filed against your clients in which they seek damages for the death of their young child. They are understandably anxious to seek full recovery under the law following the drowning death of their child in your client's man-made pond. However, to avoid protracted litigation, my clients are willing to allow me to explore settlement possibilities. My clients have authorized me to make the following offer: they will agree to dismiss this suit if your clients remit payment in the sum of $250,000.00. This offer will remain open until December 1, 2006.
  • 12. Opening Paragraph: Example I represent Mr. and Mrs. McLean in the lawsuit they have recently filed against your clients in which they seek damages for the death of their young child. They are understandably anxious to seek full recovery under the law following the drowning death of their child in your client's man-made pond. However, to avoid protracted litigation, my clients are willing to allow me to explore settlement possibilities . My clients have authorized me to make the following offer: they will agree to dismiss this suit if your clients remit payment in the sum of $250,000.00. This offer will remain open until December 1, 2006.
  • 13. Factual Support Paragraph
    • The paragraph following your introduction should include a statement of the facts upon which you base your demand.
    • You should include only those favorable facts that support your client’s position and present them in a persuasive manner .
  • 14. Factual Support Paragraph: Example
    • (1) On September 3, 2005, my client’s son drowned in your client’s pond. At the time of the drowning, the gate to your client’s pond was unlocked and the dock leading to the pond was broken. From the information we have obtained, we believe your clients had knowledge of these facts and did not act to correct them. As a result, my client drowned in the pond after the dock collapsed from under him.
    • (2) As you are probably aware, on September 3, 2005, my client's young son drowned in your client's pond. Although your clients knew that young children enjoyed feeding the ducks on their pond, they left town for the holiday weekend, leaving the gate to the pond unlocked, and the dock in a state of disrepair. Their actions in leaving this attractive nuisance accessible to young children is even more troublesome in light of the fact that they knew the dock was dangerous and in need of repair. Yet they had delayed the long-needed repairs. Mikey McLean drowned in the Hurts' pond after the dock collapsed from under his slight weight.
  • 15. Persuasive Writing & Advocacy
    • The “KEY” to effective and persuasive writing is to use language to gently nudge your audience in the direction you want.
    • Don’t take it too far:
      • “ On September 3, 2005 the life of my clients’ little boy, Mikey, was taken when he drowned in your client’s pond. Mikey was only six-years old and had barely begun to experience all the things life has to offer. Your client, knowing that his dock was in ruins, callously left the gate to the dock open. Now, all my clients can do is mourn their son’s loss.”
  • 16. Legal Support Paragraph
    • After the facts, you should provide the legal support for your demand.
    • Start by stating that the law resolves the dispute in favor of your client.
    • Then, briefly explain how the law (statute or cases) support the assertion that the law is on your client’s side.
    • Avoid focusing on unfavorable law, the opposing party’s argument, and/or the opposing party’s defense to your demand. Unless you are responding to an opponent’s argument, you generally do not rebut or present unfavorable law
    • Limit Citation: You should cite a statute or other authority (especially if writing to opposing counsel), but you should not go overboard.
  • 17. Legal Support Paragraph Example
    • Under Florida law, the Hurts are liable for Mikey McLean's death under the doctrine of attractive nuisance. See, e.g. , Ansin v. For almost forty years, a long line of Florida courts have consistently held landowners liable for the injuries sustained by child trespassers when the landowners leave a dangerous condition on their property and have reason to believe that children attracted to the dangerous condition will trespass onto the property. Thurston , 98 So. 2d 87 (Fla. Dist. Ct. App. 1957), cert. denied , 101 So. 2d 808 (Fla. 1958); Samson v. O'Hara , 239 So. 2d 151 (Fla. Dist. Ct. 1970).
  • 18. Application Paragraph
    • This is where you clearly and briefly show the reader how the client’s facts would be resolved by the rules of law you’ve explained.
    • No analogies are necessary.
  • 19. Application Paragraph Example
    • Here, the combination of Hurts' dilapidated dock, the man-made pond, and the ducks that swam in the pond, was dangerous and yet inviting and attractive to small children. The Hurts both knew that the dock was dilapidated and dangerous, and knew that children from the neighboring elementary school trespassed onto their dock to feed the ducks. Yet they left this attractive nuisance open and accessible to children while they left town for the long holiday weekend.
  • 20. Ethical Considerations
    • A lawyer should never “stretch” the truth in his or her quest for zealous advocacy. You also cannot make frivolous demands or claims with no foundation in the law.
      • Model Rule of Professional Conduct 4.1: In the course of representing a client a lawyer must not knowingly make a false statement of material fact or law to a person.
  • 21. Conclusion -
    • In the Conclusion paragraph you must:
    • Restate the demand.
    • Tell the reader specifically how to comply
    • Impose a specific time limit on the availability of demand or offer
    • State the consequences of failing to respond within the allotted time.
    • Your goal is to convince your opponent that it is in his best interest to comply with the demand.
  • 22. Conclusion: Example
    • The Hurts' liability under Florida law is clear. If this case is tried, the jury will not be focused on liability, but on the amount of damages to award the parents for the death of their only child — a six-year old son. After evaluating Florida law, I think you will agree that our offer of settlement is more than reasonable.
    • Our offer remains open until 5:00 p.m. on Deceber 1, 2006. You may contact me at the above referenced number if you have any questions or would like to discuss this matter further. If I do not hear from you by then, I will be in touch with you to schedule depositions.
  • 23. The Demand Letter