March 20, 2014
Last week’s installment of this series explored the dangers of overextending in your written arguments – that is, going so far in your arguments that your case on the whole suffers for it. Where the previous post discussed this hazard generally, this post will delve into specific contexts where it can be particularly easy to fall into the trap of overextending – and how to avoid it.
When I first approached this topic, I had intended to address types of documents as the aforementioned “specific contexts.” However, when I thought about it more, it occurred to me that the issue is better framed not by the vehicle through which legal arguments are made, but to whom they are made.
The first of these “specific contexts” – i.e. the audience that your writing is address – is an opposing party, typically in the very early stages of litigation or before litigation has commenced at all.
One of the primary legal documents used in this context is the demand letter. As mentioned in the above paragraph, any arguments used here are made with little or no litigation. This means that very little information has likely been gathered by the other party, and it may be possible that your opposition hasn’t even found an attorney yet.
Under these circumstances, it can be very easy to take your demand letter too far. After all, the other side likely hasn’t had the opportunity to verify your assertions to any significant degree, so for all they know, everything you’re claiming is true.
On the flip side, demand letters are often where attorneys inflate the strength of their cases significantly, and attorneys are generally aware of this. Thus, if your opposing party has an attorney – or finds one after receiving your letter – your demand letter is likely going to be taken with a grain of salt, no matter how little you have inflated your argument in the letter.
And therein lies the problem: because attorneys generally expect demand letters to ask for more than the sender could reasonably expect to receive, attorneys writing these letters will take their arguments farther than they would if making an argument in court.
The trick is figuring out how to take your demand letter argument far enough without going too far. First, “too far” means that you’ve passed the point of reason and it may appear from reading it (at least to other attorneys) that you may not have a firm grasp on reality in asserting your claims – and that they shouldn’t be taken too seriously.
You’ll know if you’ve gone too far if what you are “demanding” in your letter doesn’t have a clear legal and factual basis – that is, based on the facts of the case and the law, there wouldn’t be a realistic chance of getting what you’re looking for if you went to court (it’s worth noting that what your client wants may be within this realm). And the best way to ensure that what you are asking for has such an anchor in reality is by actually citing to facts and pertinent law in support of your claims.
At the same time, your demand letter should not be so conservative as to start off negotiation at a low point for your client’s interests. Therefore, it’s important to try to hit a “sweet spot” with the “demands” in your demand letter: asking for more than you believe would be the most reasonable based on the law and facts, but short of crossing that line of going “too far.”
In fact, you stop yourself short enough of this “too far” line so that it is apparent to the other party (particularly to an attorney) that you could have put more into your demand but did not. Even better is when you can cite to something that you are not asking for because your client “would like to resolve the dispute amicably, if possible” (or something to that effect).
Even if your client had no interest in that foregone demand to begin with, it will leave you in a better starting position for negotiation.
The demand letter is often the starting point for further legal action, so it’s important to start off on the right foot and make the best opening move possible.
Next week, we’ll get into hitting the “sweet spot” for other audiences, such as your judge and opposing counsel.