Drafting a Demand Letter

It is usually desirable to settle a variety disputes before they enter litigation.  This is because lawsuits can be costly, and can take months or years to reach a resolution.  One of the first steps in taking action before litigation is drafting a demand letter that lays out some of the reasoning behind a claim and demands relief from another party.  There are certain things that should be kept in mind when drafting a demand letter to ensure that it is most effective at resolving a dispute.

Shock and Awe

One of the most important things to keep in mind about drafting a demand letter is that demand letters are often most successful if they are well-supported and create a strong impression on the other party.  As a result, a demand letter should convey to the other side that the party sending the demand letter is serious, and if a dispute is not resolved, litigation will ensue in the favor of the sending party.  As such, it often pays to list some of the reasoning behind the claim for relief in the demand letter.  This will show the other party that claims are likely to succeed and should be resolved before litigation is initiated.  Of course, it should be noted in the demand letter that the recitation of claims does not operate as a waiver of other causes of action, and it sometimes makes sense to conceal arguments so they are more effective in litigation.

It is also important that a demand letter flow well and not contain any typos.  The demand letter should also be professionally written, typed on thicker paper, and sent with a typed envelope.  All of these steps will convey to the other party that the sending party takes the matter seriously and this matter should be settled before litigation is initiated.

Spoliation of Evidence

Parties should keep spoliation of evidence in mind when drafting a demand letter. Spoliation of evidence is when parties destroy documents or other materials that are relevant to a lawsuit after they are given notice about a claim.  Spoliation can be a powerful doctrine in litigation, since it can lead to adverse action taken against the spoliating party, and courts can even rule against the spoliating party on the merits of a lawsuit in the worst cases.

In order to have the greatest possibility of making a spoliation argument, a demand letter should clearly state that a lawsuit may follow if the matter at issue in the demand letter is not resolved.  The demand letter should also instruct the party receiving the letter to preserve documents and materials related to the dispute at issue in the demand letter.  Moreover, it should be conveyed that failure to keep such records can lead to adverse consequences for the party spoliating evidence.  Although preserving spoliation arguments is rarely the main reason to send a demand letter, including language related to spoliation can assist a party if a case is ever litigated.

Sending the Letter

Likely the most important part of drafting a demand letter is knowing how the letter should be sent and to where it should be sent.  Demand letters should generally be sent through certified mail so that there is a record that the letter has been delivered.  In addition, if return receipt requested is used, then the recipient needs to sign for the letter, proving that it has been delivered.  Showing that a demand letter has been received could be important to spoliation arguments and other reasons, so this form of mailing should be used.

However, demand letters should also be sent by regular mail as well.  Parties will often refuse to sign for a letter that is sent with return receipt requested, or they may refuse to come to the post office to pick up the letter if the letter cannot be signed for at the delivery location.  By mailing the letter both through regular and certified mail, a party ensures that the recipient will get the letter.  In addition, a copy of the letter should also be sent by email whenever possible.  Although the email attaching the demand letter may be dismissed as spam, this will ensure that the recipient will get the letter quickly and conveniently.

When searching for addresses of recipients, parties can conduct interest searches, check public records, and initiate background checks if no other information is found.  A skilled attorney should be able to assist in finding the addresses to which a demand letter should be sent.

Hire an Attorney

It is important to consider hiring an attorney if you are drafting a demand letter.  If the demand letter is written on an attorney’s letterhead, it might be given more weight than if a party simply sends the demand letter on their own.  In addition, the involvement of an attorney will show the other side that they are serious about the case and matters may escalate if an issue is not resolved.  In addition, an attorney can help a party draft a demand letter and ensure that this letter has the greatest chance possible at resolving a dispute.  The Rothman Law Firm is experienced in drafting demand letters and litigating matters if demand letters are not successful.  If you are looking for an experienced New York and New Jersey attorney to draft your demand letter or handle another legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.