Mastering The Strongly-Worded Letter, Part I

I always thought that “The Strongly-Worded Letter” would be a decent name for an indie rock band. Right up there with “The Wheelchair Assassins.” It would have been fun to be a rock star. But I hawked my drums and went to law school, so I do that thing now instead. Plus, I’d look silly with a mohawk.

This post is about the strongly-worded letter we write as litigators, though no one calls it that. Sometimes it is a “cease and desist letter” or it could be a “demand letter.” In each instance, it is often the first opportunity the opposition–and their lawyers–have to see what they’re up against. In my view, it is not an opportunity to squander.

Why is this letter so important? Well, in my experience sending a cease and desist or demand letter rarely achieves its stated goal. While our clients would like nothing more than to immediately get their way, it almost never occurs that someone undertakes any major action after receiving a cease and desist or demand letter. It just doesn’t work that way. Even in those rare instances in which an entity knows it did the wrong thing, knows it will have to pay eventually, and–rarest of all–the demand contained in the letter is not all that unreasonable, it would be contrary to human nature to receive a demand letter, sit down and just write a check. And everybody knows this.

As a result, while these letters ostensibly demand a stated change or outcome, they are fundamentally dishonest in that they are written by a writer, and intended for an audience, that implicitly understand that that stated change or outcome is not going to come without a fight. A letter alone won’t do it. In my view, then, such letters should be written, not with any expectation they will be heeded and their demands will be immediately met. Rather, they should be approached for what they really are, and what they really do. So, what do they really do?

-They alert a party that he/she/it has been found out. They serve notice.

-They identify our client, whether an individual, a family, an organization or a corporation.

-They attempt to describe a set of facts and circumstances that require redress.

-They educate the opposition and its lawyers who we are, who our clients have chosen to represent them in this dispute.

But this is superficial. The letters do these things, but they do more. They can create leverage (or not). Most importantly:

-They give the opposition an idea how serious our client is about the issue.

-They paint a picture of our client’s financial resources. Who can they afford to hire? How much can they invest in this controversy.

-They can educate the opposition (or not) about how much our clients know about the facts underlying the controversy. Are our clients grossly misinformed?

-They establish credibility.

It’s this last point that I feel is most important. The letter establishes our client’s credibility and our own, as well. It is this credibility that sets the stage, establishes relative power and will remain important throughout the life of the dispute. Is your client serious about this dispute, serious about getting his/her/its way and serious about doing what it takes, and spending what it costs, to achieve its desired result? This first letter will communicate much of this.

In my next post, I will discuss what you and your client should and should not do to gain credibility in any strongly-worded letter.