ELEMENTS OF A POWERFUL DEMAND
If your audience was simply a computer or some kind of emotionless organization, then you would not attempt to persuade your audience. You would simply transmit data to your audience for analysis. But your audience will be composed entirely of individual human beings. Their individual feelings, thoughts, and attitudes towards your case matter — tremendously. Here are some powerful persuasive elements that you should consider using in your demand.
In some ways, the human brain is like a supercomputer, constantly processing a vast amount of information. But the brain processes information much differently than a computer. Computers store and process information as a series of “1’s” and “0’s”. But human brains store and process information in the form of stories.
As human beings, we think in stories. Raw data is meaningless to us. It only has meaning when it is organized into a story. A page full of random letters is meaningless. Those same letters organized into words, sentences, and stories become meaningful. When we read about the characters in a story, we begin to create context for these characters using our imagination that goes far beyond even what is written on the page—it is almost as if the characters come to life, and we begin to know them as peers.
To be effective, a demand letter cannot just be a data dump — it must tell a story.
People like structure — that includes the members of your demand letter audience. The law does not require any particular structure for your demand letter, so you should structure your demand letter to achieve maximum effectiveness. These guidelines will help you do that:
- Organize the information in a way that makes sense. I sometimes organize demand letters into the following sections:
- Factual Background
- About Plaintiff
- About Defendant
- Incident Description
- Liability Analysis
- Analysis of Applicable Law
- Physical Evidence
- Fact Witnesses
- Expert Witnesses
- Damages Analysis
- Special Damages
- General Damages
- Policy Limit Demand
- Demand for Proof of No Additional Coverage or Assets
- Analysis of 3rd Party Insurance Carrier Obligations (if Applicable)
- Analysis of 1st Party Insurance Carrier Obligations (if Applicable)
- Factual Background
- Use descriptive headings.
- Omit unimportant information.
- Include helpful tables and visual aids.
- Define key terms, and use them consistently.
- Label and organize your attachments/exhibits.
They say “a picture is worth a thousand words.” I get it, but it’s not quite true. Some photographs have the power to touch your audience in a way that no amount of words ever could.
For example, words are inadequate to express the feelings evoked by the above photograph of JFK Jr. saluting his dead father during the funeral procession.
You should include photographs in your demand letter if and when they powerfully communicate a message that is important to your case. That would include photographs depicting the following:
- Painful Injuries
- Disfiguring Injuries (E.g., scars or burns)
- Events Impacted by Injury. (E.g., Bride in a wheelchair.)
- Wreckage of Violent Collision
Powerful photographs should be embedded right into the demand letter.
Sometimes it is difficult to explain the chronology of a complicated sequence of events with words alone. Timelines are a great tool in these cases. I believe that they are terribly under-utilized tools for demand letters and legal writing in general. My firm has a few different graphic design tools that we use to create persuasive timelines.
If your case relies upon expert opinions, then those expert opinions should be persuasively stated in your demand letter. Your demand letter does not need to demonstrate the admissibility of your expert opinions. That may come as some relief because the law governing the admissibility of expert witness testimony at trial can be intimidating. However, the law is based upon common-sense principles, and those same common-sense principles should guide your description of the expert opinions upon which your case is based. Your description should answer the following questions:
- Why should anyone care what your “expert” has to say? In other words, describe your expert’s area of expertise, and his or her qualifications.
- What information did the expert rely upon if formulating opinions in your case?
- What are your expert’s opinions?
USE THE INSURANCE CARRIER’S DUTIES TO ITS INSURED TO YOUR ADVANTAGE
In many cases, the most important member of your demand letter audience is an insurance company adjuster. Insurance companies owe legal duties to their insureds, so the adjuster is responsible to make sure those duties are properly discharged. You will want to use the existence of these duties to your advantage. Before you can do so, you will first need to understand the relationship of the insurance company to the parties.
Insurance companies owe their insureds a “duty of good faith and fair dealing,” and when they breach this duty it is known as “bad faith.” In the next couple of sections, I will briefly explain how bad faith can arise in various contexts in a personal injury claim.
3RD PARTY COVERAGE
3rd Party Coverage exists when the Defendant who negligently injured the Plaintiff is covered by an insurance policy. Under the terms of the insurance policy, the 3rd Party Insurance Carrier has a duty to defend and indemnify the Defendant against the Plaintiff’s personal injury claim. A Defendant may have a claim against the 3rd Party Insurance Carrier for bad faith if the carrier fails to defend and indemnify the Defendant against the Plaintiff’s personal injury claim. In some cases, the Defendant can assign this claim to the Plaintiff as part of a settlement.
1ST PARTY COVERAGE
1st Party Coverage exists when the Plaintiff is covered by an insurance policy that was obtained by the Plaintiff directly (or by the Plaintiff’s principal or by a member of the Plaintiff’s household). Under the terms of the insurance policy, the 1st Party Insurance Carrier has a duty to compensate the Plaintiff for his or her damages incurred in a covered incident, such as a motor vehicle collision.
Whether my demand letter involves 3rd Party Coverage or 1st Party Coverage, I always include language that is tantamount to a deadline. For example, “this demand will expire at 5 PM on [Month] [Day], [Year].” I include a deadline because I want the insurance company to understand that it cannot just leave us waiting indefinitely.
I generally set the deadline for 30-60 days out, depending on the circumstances. Because the deadline is somewhat arbitrary, I am usually willing to extend the deadline for the insurance company if its request is reasonable.
You may be wondering: “What happens if the insurance company misses the deadline?” There are basically two ways to enforce this kind of deadline. First, you can file a lawsuit. (Click here to learn more about litigation.) Second, if the insurance company has acted in bad faith towards its insured, then you may be able to receive an assignment of a potentially valuable bad faith claim in a settlement with the Defendant. Depending on the circumstances, this type of agreement may be known as a Damron, Morris, or Helm agreement. (The law governing these agreements is complex, and I will not attempt to summarize it here.)
The philosophies, strategies, and tactics I’ve outlined above are the principles that guide our actions at Cluff Injury Lawyers. I’ve outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them.
Author: Brigham Cluff