Tuesday, January 24, 2012

Some Thoughts on Crafting a Demand Letter

As a Pittsburgh personal injury lawyer, I find myself writing a lot of demand letters to insurance companies.  Demand letters preserve the option of settling a case before trial.  I, personally, prefer to try cases but often times settlement is in the best interests of the client.  And the client ALWAYS comes first.

My demand letters to Pittsburgh insurance defense firms have evolved over time.  When I first started practicing, thrown to the wolves as I was, I would assume the defendant "got it" and would just write a one liner along the lines of  "my client will accept 'X' dollars to settle this case."  As a result, I got a lot of incredulous responses asking me upon what was I basing my number.   "Hmmmmm, I thought, well I don't really know other than that is what my injured client told me they would take" I thought.  I quickly realized that I had to provide more.  So I researched and dug and asked other people for advice and slowly started to develop a demand letter format.  That format typically consists of the following points:

1.  Statement that this letter, unlike other correspondence, is a demand for settlement.

2.  Facts of the case highlighting the critical points and how they might play out (as opposed to just reciting the boring old basic facts both sides knew from the filing of the complaint).

3.  Explanation of our key theories of liability.  If I have a strong liability case I hammer the point.  Be it a killer expert report, weak experts on their side, great witnesses, whatever.  I lay this on thick.

4.  Causation discussion...if it is a point in contest.

5.  Damages, broken down as clearly as possible.  The two overarching categories are economic and non-economic damages.  From there I provide a breakdown of specific damages within each category with an explanation for how we will establish them.

6.  Concessions- I think it is always good to concede your weak points.  No case is perfect.  Credibility is everything, even with your opposing counsel.  There is no harm in pointing out that you realize the defendant has a few good arguments.  This can help improve report with defense counsel and the insurance company and help them realize that you are not pulling your demand out of thin air. 

7.  An indication of what the bottom line sum is that we will accept in settlement with a clear indication that failure to work with us will result in a trial - no problem!  You have to be willing to back this point up however.  If you never try cases, the insurance company knows that and will give less weight to your threat of trying the case.  Yet another reason why I try a lot of cases.

Lastly, all of these points, from the plaintiff's perspective, should be peppered with the various critical themes of David Ball on Damages and Keenan and Ball's Reptile.  Defense firms are beginning to pick up on these tactics and starting to recognize how they will fit into plaintiff's case.

I am constantly trying to improve my demand letter writing through grilling defense lawyers I know and other seasoned plaintiff's attorneys.  This is my template now.  I am not saying it is perfect but it's starting to get the job done.

Fortunately, there are great attorneys out there like Ron Miller of Miller & Zois, LLC, with the Maryland Injury Law Blog who recently put up a great post on this topic with SAMPLE LETTERS....woot woot!  Please go read Ron's post titled Demand Letters to learn more.

I'll try and post some samples of my own in the near future.

Update:  I just stumbled upon top tier trial lawyer Paul Luvera's post "How to Write a Settlement Demand Letter."  I was excited to see that my format was pretty much right along the lines of Pauls.
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