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Cease-and-desists letters, demands for personal injury payments, claims of defamation, slander and libel -- these are the bread and butter of the demand letter. And boy are they demanding, always full of requests that must be met "immediately" and clients who will defend their rights "vigorously."
How you respond to a demand letter can help shape the tone and path of your following interactions, so make sure you do it well. To help, avoid these three common mistakes lawyers make when responding:
1. Over Relying on "For Settlement Purposes"
Most lawyers will label their response to a demand letter with something along the lines of "Confidential / For Settlement Purposes Only." The goal of this often isn't to settle, it's to bring the letter under Federal Rule of Evidence 408, or its state equivalents, which make inadmissible settlement communications.
Don't think that your disclaimer will keep your demand response from being used in trial or depositions, though. Several cases have found that response letters may be admissible -- once the settlement boilerplate is stricken. If the letter becomes an exhibit at trial, you will want it to put you and your client in a sympathetic light, so avoid sounding threatening or unreasonably sarcastic. Avoid threatening "legal proctology exams."
2. Failing to be Proactive
Your response to a demand letter doesn't have to be solely reactive. If it fits with your defense strategy, you may consider taking swift, preemptive action. You may be able to file for a declaratory judgment or invoke an arbitration provision.
That's what a Florida law firm did when it received an ostensibly unjustified demand letter from Getty Images, a company notorious for threatening demand letters. Instead of responding with a letter of their own, they sued, claiming "unfair and deceptive business practices." Getty apologized for sending the letter "in error."
3. Bluffing on the Law
Remember, that potential plaintiff probably isn't going to read your response to a demand letter, whether they're a slip and fall litigant or the CEO of a major company. Who will? Their lawyer. So, don't expect to score extra points by making your position seem better than it is.
A strong tone and demonstration that you're in a good legal position is one thing, selectively citing laws and cases to make yourself look invincible is another -- the other side will see right through it.