Does a letter from a lawyer really work? There is a widespread belief that a simple letter from a lawyer has an uncanny power to resolve difficult legal problems. While lawyers like to think that they are mighty with the pen, even the strongest letter will usually fail to make a legal challenge go away. Why?

To begin with, legal problems are often more complicated than a client imagines. As the saying goes, “there are three sides to every story: your side, my side and the truth.” Clients frequently fail to realize that their “facts” rarely coincide with the “facts” believed by their opponents. They also fail to focus on the practical problem of how to prove the “facts.” If a dispute goes to court, clients do not get to simply tell their story; they have to prove it with evidence. But evidence can be tricky. Witnesses do not always remember what they saw or heard. Sometimes they do not remember what they said. Sometimes they remember events differently than the client does. Sometimes they go missing or become unavailable. Sometimes they even change their story. Documents are no better. Language that looks “black and white” to one person may be understood far differently by another. Documents that appear to present the “smoking gun” may be contradicted by other documents, or may not be so convincing once other evidence comes to light. A document that a client believes will answer every question may not even be admissible under court rules, and therefore is of no value in proving the client’s claim.

Then there is the problem of the law. Statutes, case law and general legal principles rarely agree so completely that they yield only one answer, or leave no room for interpretation. The law may take a controversy that a client sees as a “slam dunk” and turn it into a quagmire. A letter from a lawyer cannot alter that outcome, although it may certainly accelerate it.

Letters from lawyers also rarely impress the lawyer on the other side. We are trained to poke holes in an opponent’s position, and we know that there are usually significant problems in an opponent’s claims that can be exploited. If nothing else, we are by nature reluctant to throw in the towel before all the facts are known. We take everything the other side says with a grain of salt, and advise our clients to do likewise. All of us can tell tales of cases that looked bad at the beginning, but improved markedly with age and incremental increases in evidence.

So, are lawyer’s letters good for anything? Yes. Just the act of writing a good letter will expose weaknesses in a client’s claim, and suggest ways of more effectively communicating that claim to an opponent or to a jury. You cannot write clearly until you can think clearly. Putting facts and legal theories on paper forces more precision in analysis. Sometimes that analysis will show there is no viable claim at all, or will persuade a party to change theories. On the other hand, a letter that clearly articulates a claim and the evidence that supports it will often provoke a reasoned analysis by opposing counsel. That, in turn, can lead to early and productive settlement efforts. If nothing else,
a letter that showcases a strong, well-supported claim is an effective road map for further actions, including a lawsuit.

Letters from lawyers have their purposes. But forcing an early and favorable outcome is usually not one of them. So by all means, ask your lawyer to write a letter, but remember — or ask your lawyer to remember — two things: First, the letter may ultimately end up before a judge or a jury, so it is important that its tone and content be civil and professional. Nobody likes nastygrams or the persons who write them. Juries in particular are more likely to decide in favor of people they like or identify with. Do not let an unpleasant letter be your introduction to those who will decide your claim. Second, use the letter as a tool to think carefully and critically about your claim. By all means, write the letter as persuasively as possible for your position. But do not ignore the weaknesses that writing a reasoned letter may expose. You will know ahead of time where you need to concentrate your efforts to find evidence or favorable law, and will all the more prepared for an effective settlement effort or lawsuit.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact us at  480.461.5300, log on to udallshumway.com,  or contact an attorney in your area.