KNOW YOUR PURPOSE
Why are you writing a demand letter? This may sound like a strictly philosophical question without any practical implications, but it is not.
With any kind of legal writing, but especially with demand letters, it is easy to fall into the trap of simply going through the motions. The reason for this is that legal writing is complicated, and sometimes it is subjected to harsh judgment. So as a writer, you feel pressure to make sure you do it right! But your focus on doing it right distracts from your reason for doing it in the first place. So you write a demand letter because that is what you think you are supposed to do. And in that letter, you say the things that you think demand letters are supposed to say. Will your demand letter help you to achieve your goal? In one sense, yes. If your only goal was to send a demand letter, then mission accomplished. But if you were hoping your demand letter might accomplish something more, then I am afraid you will be disappointed.
So back to my original question: why are you writing a demand letter? If you cannot answer this question with clarity and specificity, then you are not ready to start writing your letter. Depending upon the circumstances of your case, here are some objectives that you may want your demand letter to serve.
- Settle Your Case for Policy Limits
- Change the Insurance Company's View of Your Case
- Exploit a Conflict Between Multiple Defendants
- Exploit a Conflict Between an Insurance Company and Its Insured
- Get the Insurance Company to Uncap Its Policy
- Get an Assignment of Claims From Your Defendant
- Give Your Adversary a Chance to Save Face (While Still Paying Maximum Value on Your Case)
- Frame Your Case in a Way That Falls Within Insurance Coverage
A boilerplate demand letter cannot possibly serve all of these purposes because many of them are inconsistent with each other. The only way to do it right is to do the hard work of analyzing your case, developing a strategy for your case, and then writing a demand that furthers that strategy.
KNOW YOUR AUDIENCE
There are two important aspects of knowing your audience that I will address here. First, identifying your audience. Second, identifying what is important to your audience.
IDENTIFYING YOUR AUDIENCE
When you send a demand letter to an insurance company or a large corporate defendant, it usually gets routed to a claims adjuster. By the time you are prepared to send a demand package, there is a good chance you will already know the identity of the claims adjuster assigned to your claim. However, this one individual claims adjuster is not the only audience that you need to be concerned with. Your audience might also include the following:
- Your claims adjuster's boss.
- An insurance company committee from whom your claims adjuster is required to seek settlement authority.
- Your defendant's lawyer.
- The defendant. In many cases the defendant is not likely to ever even see the demand letter; however, there are some notable exceptions. For example, in a medical malpractice case against a doctor, the doctor is probably going to read the demand letter, and the insurance company settles the case unless and until the doctor gives his or her consent to do so.
- A judge or jury who may someday be asked to draw some conclusions as to the legal significance of your demand letter. (Usually, this would be in the context of an insurance bad faith lawsuit to determine whether an insurance company properly discharged its duty to its insured.)
- A deliberative political body, if your defendant is a public entity.
You may not know the names of all the categories of people listed above, but you should try to learn as much about them as you reasonably can so that you can tailor your demand letter to them.
IDENTIFYING WHAT IS IMPORTANT TO YOUR AUDIENCE
NOT MY PROBLEM
Do you know what people care most passionately about? Their own problems. Do you want your audience to care about your case? Show them that your case is their problem, a big problem, a very big problem.
You need your audience to perceive your case as a big problem so that they are primed to spend big dollars in settlement. However, making your audience realize that your case is their problem is not enough, you need to make it easy (but not cheap) for them to solve that problem.
THE SOLUTION — EMPATHY
The Plaintiff is the one that has been harmed here. And it was the Defendant's fault! People should feel sorry for the Plaintiff, not the Defendant!! Yes, all of that is probably true. But even though it may seem counterintuitive, to negotiate the best possible settlement for the Plaintiff, the Plaintiff's attorney must have empathy for his or her audience, even though that audience is comprised of the Plaintiff's attorney's adversaries.
To have empathy for another person does not mean to feel sorry for them; it means to psychologically identify with them so that you can vicariously experience their feelings, thoughts, and attitudes. To empathize with your adversary is to get in his or her head. Therefore, empathy for your adversary empowers you against the adversary.
Remember that your audience is composed entirely of individual human beings. Their individual feelings, thoughts, and attitudes will be different in every case, but here are some common problems that these individuals face to which your demand should be tailored:
THEY ARE BUSY.
In most cases, your audience is busy and would prefer to be done with your case. They have a pile of other work to do.
If your audience is busy, then you want to make it easy (but not cheap) for them to settle your case. Provide them with everything they need: medical records, medical bills, expert opinions, etc. Make your demand easy to ready. Organize the information clearly. At the same time, make them see that if they fail to settle your case, that they will be buried in a tremendous amount of additional work that in the end probably won't do them any good whatsoever. Therefore, they should just stroke the big check right now.
There are some people in your audience for whom “busyness” may not be a problem. In fact, they may consider it to be the opposite of a problem. If the Defendant is being defended by lawyers in a private law firm, then there is probably a direct relationship between how long they work on the case and how much they get paid. Therefore, they have an economic incentive to drag the case out for as long as possible. But to the credit of the defense bar in Arizona, I rarely get the impression that my opposing counsel is deliberately trying to drag things out.
THEY NEED TO JUSTIFY THEIR DECISION TO SOMEBODY ELSE.
The members of your audience all have bosses. They need to be able to justify their decisions to these bosses. “The Plaintiff just seemed like a nice person” is not going to cut it.
Claims adjusters often would like to be able to offer more money on a case, but they are unable to do so because they cannot get permission from their boss or claims committee. This happens frequently even though the claims adjuster certainly knows the case better than anyone else at the insurance company. To empower the claims adjuster to be able to go and get more money, you need to provide the claims adjuster with the information they need to obtain additional settlement authority.
What information empowers claims adjuster to obtain additional settlement authority? For starters, you should pose that exact question to the claims adjuster. They will often tell you. In addition, I find that special damages calculations have a tremendous capacity to move the meter for members of your audience that are less familiar with the intimate details of your case.
THEY SCREWED UP.
Handling personal injury claims is complicated — more complicated than it seems — and it is complicated for both sides. It's easy to screw something up. If your demand letter audience has screwed something up in their handling of your claim, then they will probably want to protect themselves from the consequences of their mistake. That will probably have a major influence on the way they handle your claim going forward. You can probably use this to your advantage, but if you misplay the situation, it can easily backfire on you.
For example, if the claims adjuster believes that the value of your claim exceeds the value of the Defendant's insurance coverage, but the adjuster for the Defendant's insurance company has failed to tender its policy limits in a timely manner, then the adjuster may have made a serious mistake. So now what is the adjuster going to do? Before answering that question, let's consider what you would want the adjuster to do.
In some cases, the Plaintiff might be delighted by the adjuster's above-described failure because it might open the door for eventually recovering an amount of money far greater than the policy limit. But for this hypothetical case, let's assume that the Plaintiff would prefer that the adjuster simply tender the policy limit because the Plaintiff believes that his or her causation case has some serious weaknesses.
Under this scenario, the adjuster probably just wants to pay out the policy. And the Plaintiff just wants to receive the policy. To borrow a poker analogy, you have been dealt a winning hand; however, you can still lose if you do not play the hand out correctly. In this scenario, you should give the adjuster another opportunity to gracefully pay out the policy. This will require some finesse because you need to keep the pressure on while avoiding an escalation. If the adjuster feels backed into a corner, he or she may launch into a desperate counterattack to try to justify his or her earlier failure to tender the policy. This could lead to litigation that may delay the resolution of your case by two years — and you could even lose the case outright.
THEY WANT TO IMPRESS SOMEBODY.
The individuals who comprise your demand letter audience have people they want to impress: bosses, co-workers, clients, their friends and family, and probably most importantly, themselves. They want to look good to all of these people, and they want to feel good about themselves. If it would cost you nothing, why wouldn't you want to help them? Here is a better question: Since it would provide a tremendous benefit to you, why wouldn't you want to help them?
Your audience is mostly composed of professional claims handlers. They each want to be known for handling claims professionally, quickly, and economically. I will discuss each of these traits below.
The most respected professionals generally work on the biggest claims. When you treat your audience like highly respected professionals, you condition them to treat your claim like a big claim.
Your audience generally wants to resolve the claim quickly. That is what you want too. So help them. Give them everything they need to pay out a large settlement as quickly as possible.
When it comes to resolving claims economically, your interests certainly diverge from the interests of your demand audience, right? In one sense, yes — because the Plaintiff wants the settlement to be as large as possible, and the Defendant wants it to be as small as possible. But here's the thing: neither side knows what is possible.
In the early stages of the case in which a demand letter is normally sent, the parties have such limited information about the claim that it is difficult to delineate the range of possibilities. But the Plaintiff generally knows more about the claim than the Defendant in its early stages, and this circumstance can be used by the Plaintiff to great advantage during the early negotiations.
I'm careful with the requests I make of a jury — I won't ask the jury to award any damages that I have not fully proven. But the demand letter phase of a case occurs long before any proof gets admitted into evidence. In the demand phase, I am much more liberal with my requests. I might ask for certain damages in a demand letter that I might ultimately decide not to ask for at trial. In the demand letter, I make the case for those damages as convincingly as I can. My demand letter audience might reject some portion of the damages, but we might still be able to get the case settled. By approaching the demand this way, you allow your demand audience to get a win by knocking down some portion of your damages claim, but the Plaintiff gets the biggest win of all because he or she gets a great settlement.
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