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Wednesday, October 19, 2011

How To Write an Effective Legal Threat Letter

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Since I graduated from law school in 1968 I've always had some sort of legal practice which varied from extensive in the early years, to these days when I'm retired and mostly just doing consulting work for a hefty fee.  In this period I've written a lot of letters threatening legal action on behalf of my client (or, on the rare occasion, myself—see Related Posts below).  In the classroom I've passed on my advice on how to create an effective letter, and now I offer it to you, blog reader.

A letter threatening legal action almost always discombobulates a recipient who is not him/herself routinely involved in legal actions.  I tell my law students that in their coming practices they will often receive such letters (or nowadays even emails), and they will calmly evaluate what to do about them depending on the legal issues involved and the wisdom of litigating them.  But the non-legal recipient of such a letter is in a very different position.  Non-lawyers are usually very upset just by the thought of having to (a) hire a lawyer, (b) pay the lawyer's fee, the court costs, and (gasp!) the damages that flow from losing, as well as (c) the publicity of being the defendant in a lawsuit and having to testify, and (d) having his/her common practices condemned by some jury and/or the court of common opinion.  The recipient, contemplating all this, feels inner organs turning over painfully, and will likely have trouble sleeping that night.

The first thing that occurs to many in such a state is to avoid the whole thing by settling the matter here and now.  Good.  That's exactly the attitude you want the person receiving your threat letter to adopt. 

All this presumes that the recipient is not locked into a "sue and be damned" mind frame before receiving the letter.  For this reason, I never make legal threats when dealing with potential defendants in person or on the phone.  I don't want this person to get angry and take it out on me with language like "I'll see you in court, you son of a bitch!"  After an exchange like that any subsequent letter will come as no surprise, and will not often make your defendant think about settling.

Before we go any further let me repeat a thought from the last post on this blog ("What Non-Lawyers Should Know About Warranties"): it is unethical and immoral to threaten something you are not really planning to do, and in which you do not have a good faith belief as to the soundness of your argument.  Even if this plea of mine to your better nature doesn't work, you should also consider that losing a lawsuit can roll your own life down a very dark alley.

Here is a list of the elements of a good threat letter:

1.  Be calm and professional.  You might be convinced that the other side is composed of incompetent quasi-crooks, but telling them so won't get their sympathy.  Instead start by identifying yourself and then stating the reason you are writing.  Describe what happened step by step, chronologically, all leading up to your current position.  Use dates and whatever specifics you have.  If there are documents that support your argument, attach copies to your letter.

2.  State clearly what relief you want.  "Make good on this and I'll go away" is just an unspecific threat and you sound disorganized.  Instead try something like "If you'll take the product back and refund my money, this matter will be over quickly."  If you have consequential damages of any significance, list them as part of the recovery you expect.  As I said in the last post, consequential damages are those that never would have happened if there'd been no breach of the contractual agreement (for example, your kitchen caught fire because the product malfunctioned, which also caused medical expenses, more consequential damages).  

Keep your demands as reasonable as you can.  Piling on minor things makes you sound unrealistic.  But if the other side has committed fraud (see last post), you should also mention that you will pursue that theory in any subsequent litigation, and that courts often award punitive damages and attorney fees if the defendant is guilty of such outrageous conduct.  If what happened violated your state's Consumer Law (check this via Google using that label plus your state's name), specify that, citing to the statute (by statute number if you have it) and quoting the specific language of the statute you feel has been violated.  Here is a sample list from Ohio's Consumer Sales Practices Act:

§1345.02 Unfair or deceptive consumer sales practices prohibited.

(A) No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.

(B) Without limiting the scope of division (A) of this section, the act or practice of a supplier in representing any of the following is deceptive:


(1) That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have;
(2) That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not;
(3) That the subject of a consumer transaction is new, or unused, if it is not;
(4) That the subject of a consumer transaction is available to the consumer for a reason that does not exist;
(5) That the subject of a consumer transaction has been supplied in accordance with a previous representation, if it has not, except that the act of a supplier in furnishing similar merchandise of equal or greater value as a good faith substitute does not violate this section;
(6) That the subject of a consumer transaction will be supplied in greater quantity than the supplier intends;
(7) That replacement or repair is needed, if it is not;
(8) That a specific price advantage exists, if it does not;
(9) That the supplier has a sponsorship, approval, or affiliation that the supplier does not have;
(10) That a consumer transaction involves or does not involve a warranty, a disclaimer of warranties or other rights, remedies, or obligations if the representation is false.

If you are yourself a lawyer, cite to whatever statutes and cases and regulations support your theory, using details.  This will likely intimidate the recipient who will want to avoid having to hire a lawyer, and if the recipient does take your letter to a lawyer the latter will now have to do legal research (which most lawyer avoid like the measles—"Can't you just fix the car?")

3.  Specify what you will do next if the letter's recipient doesn't solve the problem immediately (give the recipient a deadline, say ten days, in which to act).  Be detailed as to what will happen if the deadline isn't met ("Be advised that unless this matter is settled to my satisfaction within ten days of your receipt of this letter, I will file suit in the _______ County [or City] Small Claims Court, asking for damages in the amount of $______, plus court costs").  In the last post I suggested downloading the Complaint from the Small Claims Court's website and filling it in, and then attaching it to your threat letter ("Attached is the Complaint I will file unless I hear from you shortly").  Holding an actual Complaint that names someone as the "Defendant" is shocking—people don't want that label pinned to their name.

4.  The Escape Clause.  In a new paragraph of your letter state as calmly and specifically as you can what steps the recipient can take to avoid of all this.  Use language like this:  "I hope we can resolve this problem short of formal legal action—all I really want is ­­­­­­­­­­­­­­­­­___________ ["a product that works" or "my money back" or whatever]".  Get their mind fixed on helping you and not having to do something as strange as going to some court and hash this out.

5.  Then sign your name with a standard closing.  I don't use "Yours truly" (which is misleading in that I am not "theirs" in any way, much less "truly"), preferring something closer to reality such as "Sincerely."  Make sure all contact information is included in your letter.

Finally, let me mention that if the recipient subsequently calls you up or sends a reply letter challenging you ("Is that a threat?"), you must be ready to ignore the natural human reaction of "Oh, no, I didn't mean it that way."  Instead, hold your ground.  "Of course, it's a threat!  Weren't you paying attention?  Life as you know it is about to get much worse unless you satisfy me immediately."  Don't let the other side bully you.  Having said that, compromise is also a good thing, and proposing one that allows the recipient to save face is often the right solution to the legal dilemma that led to you sending your threat letter in the first place.


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Related Posts:
"I Threaten To Sure Apple Over an iPad Cover," April 8, 201l;
http://douglaswhaley.blogspot.com/2011/04/i-threaten-to-sue-apple-over-ipad2.html
 
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011;
http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html
 
"What Non-Lawyers Should Know About Warranties," October 11, 2011;
http://douglaswhaley.blogspot.com/2011/10/what-non-lawyers-should-know-about.html

“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;

"Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article," February 11, 2013; http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html
 
"Legal Terms You Should Know," September 11, 2013;
http://douglaswhaley.blogspot.com/2013/09/legal-terms-you-should-know.html

"How To Respond to a Legal Threat," March 29, 2014;
http://douglaswhaley.blogspot.com/2014/03/how-to-respond-to-legal-threat.html

“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;
http://douglaswhaley.blogspot.com/2014/09/clicking-on-i-agree-sticking-your-head.html

 “My Battle with Sony To Get a Refund on a DVD Player,” July 16, 2015;
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
 

“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.

15 comments:

  1. como puedo acer una carta de amenaza quedano
    en acuerdo con la trato nigocio

    ReplyDelete
  2. BRILLIANT post! Thank you. There should be more individuals like you in the world. Thank you for sharing your knowledge and wisdom.

    ReplyDelete
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    ReplyDelete
  4. Hey, thank you for this post and the one about warranties. I'm wondering if you can help me with a question. Like you, I live in Ohio, though I'm down in Cincinnati. I would like to threaten a maker of fitness equipment with small claims court, but the company is incorporated in a different state. They do have authorized dealers in Ohio, including one in Hamilton Country, where I live and where I purchased the disputed equipment. The rules of Cincinnati's small claims court state that I need an address for the entity I'm suing. Can I use the address of the authorized dealer, even though they're distinct from the business I'm going after? I checked with the Secretary of State's office, and the equipment maker appears not to have a statutory agent in Ohio. Anyway, thanks for your time, and congratulations on your nuptials!

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  5. I can't give specific legal advice in this blog. I can say that the usual course is to sue the retailer, and then the retailer can bring the manufacturer into the suit.

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  6. Thanks, I much appreciate the general recommendation.

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  7. Hello,
    Thank you for such brilliant writing.
    How about "Answering to a threat letter" ...please?

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  8. Brilliant! and now...how about "Answering to a threat letter...PLEASE..?

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  9. Interesting idea. Let me think about it and see what I come up with.

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  10. I did write such a post: "How To Respond to a Legal Threat," March 29, 2014

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  11. Thanks Doug for providing this resource. It really helped me out today with writing a letter that I hope will avoid me having to take someone to small claims court. This is a great resource for us "non-lawyers!"

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  12. Thank you Douglas for this post & sharing your knowledge in general! What you're doing helps restore my faith that not all attorneys are just after your money & simply don't care. You obviously do care! I was wondering if you could point me in the direction of where I might find templates for legal letters?

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  13. Sorry, but I do not know of any such template. My guess is that the facts always vary so much that a template would be useless. Write your letter with the advice I give in the above post in mind and that should be some guidance as what will work and what will note. Good luck with this.

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  14. good point about explicitly stating the issue. you won't get anywhere without doing that

    ReplyDelete