What is a Demand Letter, and what’s it used for?

A demand letter is a tool used prior to litigation to demand that a certain outcome be obtained from an opposing party or else a lawsuit will be filed against them. Your demands can be for money or for some sort of action. If you’re asking for the other party to stop doing some action, the demand letter can also be referred to as a cease and desist.

Demand letters are typically requests for negotiation, but they can contain varying levels of assertiveness. You must carefully craft the language to mirror the voice you want to portray. If you’re looking to be very open to negotiation, you’ll want to include language that does not attack the other party; however, if you’re looking to ensure that the other party knows that you’re not backing down from a fight, you’ll want to include more authoritative language. Both of these types have severe drawbacks if done wrong.

If you want to be open to negotiation, yet use any language that attacks the other person, you’re going to be shutting the door on the negotiation process. In this case, you shouldn’t use many absolutes in your letter. Try to avoid words such as “always,” “never,” and “clearly.”

A more authoritative demand letter generally contains more facts and explanations of the law, but when using these, be sure that you’re correct. If you explain an area of law and are incorrect, you look like you’ll be an easy opponent to overcome. (This happens all the time). Only use absolutes when you’re absolutely certain that you’re correct. This includes facts and the analysis of the law.

No matter what type of demand letter you’re writing, be sure to only use facts that you can prove in the letter and do not get caught up in fighting over the facts. The core issue is the demand and be sure to illustrate that fact stating that no matter what facts are ultimately important, this demand is what we’re looking for.

At the end of the demand letter, you spell out your demands. Whether it is monetary or some form of action or inaction, you want to be clear in what you want. After that, you should give the person a certain number of days. Too short of a time period looks as though you’re trying to pressure them into making a decision and is typically seen as a red flag by that person and a court, but if you give them too long, they’ll likely not take the demand seriously.

Finally, you should leave the person with the best way to contact you. For us, it’s email because we want a quick response and everything in writing. We find that phone conversations are a waste of time because they usually entail the opposing party venting at us about how our demands are not fair without venturing a compromise. Even if a counteroffer is made, since it is not in writing, it’s hard to prove.

One important thing about demand letters is that you cannot threaten and then not follow through. If you tell the party that you will take them to court if they don’t respond in 30 days, you must be prepared to file a lawsuit in 31 days; otherwise, they won’t take you seriously, and in some cases, you may be violating debt collection laws by threatening with no intention to follow through.

For more information on demand letters and cease and desist letters, feel free to contact us at richard@lawplusplus.com or by calling 919-912-9640.

 

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