Roger Fisher and William Ury, Getting to Yes (New York: Penguin Books, 1983), will tell you that being nice may be more effective. On the other hand, Gerard I. Nierenberg, Fundamentals of Negotiating (New York: Harper & Row, 1973), is a firm advocate of a harder-nosed approach. The choice of which approach to use is yours, subject to the requirement that you should be scrupulously polite and surgically civil in all cases at all times.
It is ethical and lawful to threaten to bring a civil action.
Never, however, threaten to bring a criminal prosecution or to defame a person. The criminal case belongs to the district attorney or city prosecutor, not to the victim. Unless you are with the prosecutor's office (prosecutors may ask defendants to make restitution as part of a plea bargain), never, ever offer to compromise a criminal matter in return for money damages or as part of the settlement of a civil claim. To do so is not only unethical, it constitutes the crime of extortion (regardless of whether you are representing the victim or the defendant), and if the offer is telephoned interstate or sent via the mails it also constitutes the federal felony of blackmail.
If there is a pending or possible criminal case against the recipient of your demand letter, make it very clear that your letter offers to compromise only the civil claim. I believe the opening line of my paradigm for demand letters more or less does this.
My paradigm for demand letters:
|1.||Attention-grabbing statement of who you are and why you are writing the letter.|
("I have been retained to file suit against you for . . . . " or
("I have been requested to file suit against you for . . . . " or
("I have been retained to . . . ." or
("As a dissatisfied customer, I intend if necessary to sue you.")
|2.||Statement of the facts and argument.|
|3.||Call for action. ("Send us your check now in the amount of . . . .")|
|4.||Threat. (". . . or expect further action.")|
In the statement of facts and argument portion of your letter, useful sentence structures often begin with words like "recall," "consider" and "your lawyer will explain." ("Recall you told my client . . . ." "Consider that your representations were . . . ." "Your attorney will explain to you the significance of your having failed to . . . .")
The request for action may be simple: "Send us your check now in the amount of $2,315." A specific statement of the action you wish the other side to take and when you wish them to take it (usually "now") is most effective.
Sometimes, the only action step contained in the letter is your request for the recipient to "Call me now." This is weak; it's usually better to request specific action. Only if the offer you intend to convey is so voracious and grasping that you are embarrassed even to put it in writing should your action step be, "Call me now."
Before moving on to the threat step, you may wish to say something like: "You may prefer to ignore this letter in the hopes that your problem will just go away all by itself. It won't."
The threat may also be simple, ". . . or your next communiqué will be delivered by the sheriff." Other nice closers include: "Consider the consequences and govern yourself accordingly." Or try, ". . . or expect unpleasant action." The last threat, of vague "unpleasant action" or of vague "further action" or of "legal action," is particularly effective in that the recipient imagines the worst possible scenario -- perhaps your doing something worse than you actually have in mind or could even ethically threaten.
If a criminal case is pending or imminent, it is best to make it clear: "We have been retained to handle only the civil case against you, and any negotiations will be limited to the civil claim."
Consumer complaints to large corporations are best directed not to the company president (he gets dozens of complaints and never personally reads any of them), but rather to the appropriate vice president or to an elderly chairman of the board (the latter having been kicked upstairs, he has nothing better to do than hassle his company's employees about your client's complaint). In the case of large corporations, the public library can give you the names of all corporate officers out of Moody's Directory or from Standard & Poor's Directory of businesses. The reference department of the East Baton Rouge Parish Public Library is (225) 231-3750.
Consumer complaints to small corporations may be directed to the company president. To learn the names of the officers of a small corporation and other information about the corporation, call the Corporations Department of the secretary of state's office at (225) 925-4704 or visit the Louisiana secretary of state's web site at http://www.sec.state.la.us/crpinq.htm. Other states' secretaries of state have similar web sites, and both Lexis and Westlaw also offer information on corporate officers (as well as the correct spelling of the corporate name and the name and address of the registered agent for service of process, all of which you will need if you do decide to file suit).
If your motivation in writing the letter is also to protect yourself and your client against a claim that the lawsuit you are planning to file was without probable cause, do first send a letter by certified mail, return receipt requested, and do include in the body of the letter a paragraph reading, "If you know of any valid reason why my client should not file suit against you now, please communicate all pertinent details to me in writing immediately."
Demand letters should be sent by certified mail, return receipt requested, whenever: (1) the letter is one required by law to be sent before suit may be filed, or (2) the letter is being sent to preclude a Rule 11 or Article 863 claim that you charged into court without first ascertaining the facts, or (3) it simply appears desirable to get the addressee's attention. Nothing will stimulate most people's adrenal glands better than an envelope from a lawyer for which the postal service required a signature.
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Copyright © 1998 by M. R. Franks - ALL RIGHTS RESERVED