At least once a month, I get a new inquiry from a prospective client; a current or former client; or, most commonly, from a family member or friend asking for legal help about a small dispute. The underlying damages are usually worth under $5,000 in total and often involve matters of $1,000 or less. When I tell them that these types of disputes are exactly what Small Claims Court was made for, they usually respond “I know, but its such a hassle to go down there!” That is usually followed by “Can’t you just write a letter for me?” Lawyers reading this around the country will well recognize that common refrain. So I write this article to help them explain why “writing a letter” is (a) more involved than you may think; (b) rarely effective; and (c) something that can be expensive to be done right. I also write this article for young lawyers out there who might be tempted to take folks up on this suggestion and charge anywhere from $100-$250 for “just writing a letter.”
(a) More involved than you think
When you come to a lawyer with a dispute and ask for a letter, the lawyer will need to know all of the facts and circumstances surrounding the dispute. Have you demanded payment previously; is there a contract; did you exchange emails; do you have any idea on the cost for repairing the situation; what evidence do you have – photos, witnesses, etc. The lawyer will then have to go through all of the evidence, communications, paperwork etc. The lawyer will then have to determine what claims you may have against the letter recipient. If there is a contract in place, he will have to check if there is a forum selection clause or some other limitation to suit which must be addressed in the letter.
Why so much hubbub over a simple letter for a small claim? Because once the letter goes out, that lawyer’s reputation goes along with it. The lawyer must make sure he has not wrongly stated a claim or left out a claim. He takes on the responsibility to properly and fully protect the client’s rights and remedies. It’s one reason most good lawyers put the phrase “We reserve all our rights and remedies not expressly set forth in the letter” somewhere near the end of the document in case we either forgot something or did not have all the facts and documents. It is also more involved than one might suspect because if the letter recipient gets a lawyer to respond to the initial letter, now what? The lawyer must respond or address what is contained in the response letter. at the very least, he must communicate to the client what is contained in the response letter and advise and confer with the client on how to respond, if at all. So you see, few letters are just “a simple letter.”
Yes, the pen is mightier than the sword, but it is the rare dispute that gets resolved in one letter while one sword duel does usually end the argument permanently. To put it another way, your deadbeat of a contractor has left you in the lurch. You have called him, emailed him, complained to the Better Business Bureau or the Office of Consumer Affairs, yet nothing has worked. What makes you think a letter will now scare them into compliance? I mean, I know I’m a good lawyer but really – one letter will get this person to change course and pony up? Highly doubtful. More likely, the letter will get thrown out along with all the prior correspondence you personally have sent to them. Alternatively, it will elicit a response to either fight the matter or attempt to resolve the matter – leading back to item (a) More involvement.
Expensive If Done Right
To be remotely effective, the lawyer must spend time on the issue. With all the above, a well crafted letter can take several hours to prepare. Even if it takes just two hours to go through the material and draft the letter, our firm hourly rate this year is $550 per hour – that’s an $1,100 letter if you were to pay retail. Lincoln is famously quoted as saying “A lawyer’s time is his stock in trade.” Its all we have. There are only so many hours in a day. We must make choices all the time as to what to work on and what do to with our time. Getting $100-200 for writing a letter that involved two hours of work is just not a smart, business move. That does not mean that the first step to resolving a dispute should not be a well-crafted letter. It often is and in some instances a written demand must be made before a complaint can even be filed. But the client should escrow enough with the lawyer to cover the next step – whatever that may be. To be safe, four to five hours would be the recommended minimum amount to escrow. While that won’t cover litigation if that becomes necessary, it is at least enough of a cushion to cover a follow up letter and a conference with the client on next steps.
There are some few instances when a strong single demand letter may be the right tool:
(1) If I have some history with the company successfully resolving similar issues. That gives me credibility that can make a single letter work. For instance, I have helped thousands and thousands of businesses and individuals respond to copyright infringement trolling letters by writing a single letter;
(2) If the demand is very specific, like “return his personal property that he left in the office” or “cease disparaging my client at PTA meetings” This makes it less likely that there will be a need for a lot of back and forth.
(3) If the client just wants to have their position put on record in case the letter recipient sues them or if the client is prepared to live with whatever the outcome is from the letter.
Note to Family and Friends
I love you all and many of you reading this may even have asked me for such a letter over the years. Do not worry. If I wrote one for you, I did it gladly and willingly in consideration of our relationship. I am a big boy and have been practicing a long time. If I thought the letter was either an over-imposition of my time or not worth doing, I would have told you. The purpose of this article is not to stop people from asking me for “a lawyer’s letter.” It’s to let folks out there know what is involved when you ask for a “lawyer’s letter” and to help young lawyers realize what’s involved as well. Its important that client and lawyer expectations are in sync and that the client understands the limited effect and use of such letters. So please keep those calls and emails coming in!
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