Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Anyone hoping to start a solo or small practice should know that it takes at least three months to figure out how to mail a letter. Thirteen years after leaving law school, I still spend a significant part of each working day focused on the simplest mechanics of getting the contents of a letter to its intended recipients. Technology has thrown in some new twists. A letter is one of the lawyer’s most powerful weapons — the rifle to the sniper. Recoil can injure an inexperienced marksman. Poor aim or focus can cause devastating collateral damage. Sending a “simple” letter could put you on the hook for a dispute. Before signing your name to it, make sure you are ready to stand behind it. A well-documented and researched letter may persuade an adversary and achieve the ultimate objective. I recently charged a substantial fee for a letter in a trademark opposition proceeding. The letter, which included case citation and 10 evidentiary exhibits, caused the opposer to withdraw the entire proceeding for fear of losing his client’s trademark. Filing a “pro-forma” answer would have cost less initially, but in the end could have cost thousands of dollars more. Here’s my highly subjective checklist of considerations involved in mailing a letter. � Is your retainer agreement in place? Many states, such as New York, require written retainer letters. Much as motorcycle riders wear helmets, no lawyer should write a letter without this protective gear. Lawyers get sued or receive disciplinary complaints from clients claiming the lawyer agreed to do something or promised a certain result. A retainer letter may be a complete defense. � No ex parte communications. Everyone gets a copy of what is sent to the judge. There are limited exceptions, but make sure your conduct comes within one of them. When in doubt, copy everyone. � What are the privileges? If you communicate with co-counsel on a defense, the communication may be subject to joint defense privilege. Are you offering the information “for settlement purposes only” to ensure that your letter may not be used as evidence? Write that in caps at the top of the letter. Know when you are immune from civil liability (in connection with a court proceeding) versus when you might be accused of tortious interference with contract. Let the client sign letters that state the client’s personal knowledge. � Do you really want to commit it to writing? When a client comes in, tells you a terrible story and gets you all fired up, you may wish to talk to the person involved before unleashing your poison pen. Think hard about it, since your actions may have permanent consequences. You are creating evidence. � Never write in a state of anger. Your “outrage” should always be calculated carefully. When an adversary has just insulted you and has your blood boiling, STOP. Adversaries are rarely worn down by nasty or provocative letters — although they may be goaded into providing information. Better yet, pick up the phone with a big smile on your face. Most lawyers who write nasty letters to impress clients are fair and reasonable when talking to them. � Always set the record straight. At least in civil litigation, never ignore falsehoods and false accusations of wrongdoing. Even if the judge’s rules forbid letter writing to the court, if the falsehoods went into the public record, acknowledge the judge’s rules and ask for leave to submit the letter in the first sentence, but respond in full. Succinctly. Wherever possible, take a moderate tone and use the word “reasonable” to describe yourself and your client. In all communications, assume that every word you write will live forever and make sure you are proud of each word. � What is it written on? Order fine letterhead from a printer with a beautiful rendition of your firm’s name and professionally printed envelopes. The material has an emotional impact. It will help clients pay their bills and will be one of the first subconscious factors your adversary will consider in determining how much it will cost to make you go away. Remember: Certain letters must not reveal that they come from an attorney’s office, so order some plain envelopes of the same stock. � Rules, laws and contracts. Check all rules applicable to what you are doing. “I am writing pursuant to … ” is a good start. Even if you are incorrect in relying on a particular law or rule, at least you make clear a good faith basis for the communication or request. � No threats of criminal prosecution. Check the ethics rules. Do not even imply that you will initiate criminal proceedings to advance a civil cause. It is illegal. An adversary, however, can be told of the legal consequences of non-compliance with a request. � Check the address and fill out the affidavit simultaneously. If an affidavit of service is required never wait until the next day. It is contemporaneous evidence. Check the address, then double-check it. Nothing is more embarrassing than misdelivered mail. � Three lines to yes. A judge should never have to read more than three or four lines of a letter to know the precise relief sought and the general legal basis for your request. If the judge agrees with the relief, why cause her the pain of reading more? Only if there is an inclination to deny will all of that fancy argumentation become relevant. Judges do not like letters of more than three pages, so check their individual rules. Some judges love letters, ignore rules forbidding them, and treat them as motions. Some return them unread with an angry scolding. Ask the clerk. If a two paragraph letter requesting a conference will avoid multiple motions and save the judge a lot of work, write the letter anyway, citing the extraordinary circumstances. � Use point headings and numbers. Point headings clarify your thinking. They force adversaries to respond in detail. Use short sentences. They make for easy future reference. � Weigh the psychological impact. Do not waste money on Fedex or a messenger unless it will have a significant psychological impact or there is real reason for it, such as speed or certainty. � Copy it and save it. Mail your client a copy as a matter of routine. No matter how hard you work, clients honestly believe their attorneys do nothing unless they see a steady and comforting stream of paper in their mailbox. � Remember attorney client privilege. Make sure that what you are mailing to your client is going to the right place. Clients have employees, children, and spouses who may not be privy to their legal situations. Do not let your clients cc (carbon copy) you; bcc (blind carbon copy) only. � Write the method of mailing above each recipient’s name. For example, Via First Class Mail/Copy Via Fax w/o Enclosures. When mailing documents, always enclose a cover letter listing the documents with an encl. at the bottom of the letter. If you hand deliver to the judge and use regular mail for an adversary, it may violate a judge’s rules. Faxing or e-mailing a copy to your adversary may save on costs of hand delivery, yet provide proper and fair notice. The term a “simple letter” is an oxymoron. Electronic innovations notwithstanding, a “lawyer’s letter” will keep its place in the legal profession. Letters resolve cases, change opinions, and cause disasters. How you mail a letter will determine whether your message is effectively conveyed. Write a letter to the editor if you think I’m wrong. Raymond J. Dowd runs the commercial litigation practice of Dowd & Marotta and serves on the board of directors of the New York County Lawyers’ Association.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.