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    Schiess Writing Effective Letters to Opposing Counsel

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    Schiess Writing Effective Letters to Opposing Counsel

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    Schiess Writing Effective Letters to Opposing Counsel

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    Write effective letters to opposing counsel ‘Wayne Schiess Certainly every lawyer has occasion to \write to counsel on the other side ofa mat- ter, whether its a loan deal, a public-utili- ties rate negotiation, ora lawsuit. In fact, trial lawyers probably do it so frequently that it can become mindlessly routine. But ‘we ought to take our communications with opposing counsel seriously—espe- cially our written communications. ‘Afterall ina letter to opposing counsel, you reveal much of yourself: your attitude, your experience, your knowledge, and your professionalism. If your letter contains typographical errors, the reader might assume youare sloppy. Ifit contains punc- tuation errors, the reader might thinkyou are semiliterate, And ifit contains faulty legal citation, a lawyer might consider you inept. Of course, you do not want to convey any of those characteristics. So take care ‘when writing to opposing counsel. The tips in this article will help. But frst, a pitch for civility: My to rise above the petty insults, sarcasm, and mean: spiritedness that appear in so much legal correspondence. The American Bar Associ ation agrees; the ABA Section of Litigation's, Guidelines for Litigation Canduct, adopted {in 1996, contains the following: Lawyers dts to other counsel 1, We wll practice ur profession witha continuing avarenes that our ol isto2eal- ‘usly advance the egitimate interests of our liens In our dealings with oterswe wll ot reflec the il felingS of ou ents. We will ‘weatall other counsel, paris and witnesses ‘nacciil and courteous manne, nt only in ‘court, but aso inal ther written and oal ‘communications. Wayne Schiess, a former practicing lawyer, teaches legal writing at the Uni- versity of Texas School of Law in Austin. This article is excerpted and adapted from his forthcoming book, Writing for the Legal Audience: Quick Tips for Better Documents (Carolina Academic Press) © 2002, Wayne Schiess. 70 SPEAKING & WRITING Inyour correspondence, strive foratone that is assertive without being offensive, firm without being mean, and precise with ut being insulting, Those are the hall- marks ofa professional Now to three specific techniques for \writing effective letters to opposing coun- sel. They are designed to improve the let- ‘ters lawyers write to their opponents in any To achieve your client's goal, report on what happened instead of commenting on it, characterizing it, or interpreting the motives behind it. situation, but the suggestions are especially seul for trial practice Don’t antagonize ‘When your client has a problem and feels cheated or taken advantage of, is your instinct to put on your bulletproof vestand. prepare for war? And does your war gear include a laptop computer, so you can fire offanastyleter? ‘Sometimes you will want.a fight, and ‘most trial lawyers can provoke one. But ‘what if your client has different expecta- tions? As Steven Stark, an experienced lit- igator and author, has said “Afterall its far more difficult to de-escalate a fight than. itis to escalate one.” (Steven D. Stark, Writ= ing to Win: The Legal Writer 239 (1999),) ‘So write that first letter carefully; don’t antagonize your opponent unintentionally. Ina recent, informal survey I con ducted, Isenta sample letter to a dozen, practicing attorneys experienced in several fields, asking them to comment on the let- ter, specifically its tone. Their thoughts and suggestions formed the basis ofthe re~ commendations here. Foran idea of what kind oflanguage and tone can antagonize a lawyer, consider an. example ofa letter from a plaintiff lawyer toanattorney representinga (potentially) opposing party. You are the trial lawyer. Your client leased a commercial property toa fastfood, franchiser. As part ofthe lease, your client receives a small percentage ofthe restau rant’ profits. Your client complains that the franchiser promised him free home delivery when the ease was signed but now refuses to continue it. The two have dis- ‘cussed the subject already, but ths i the first time lawyer has been involved. Your client is angry, but what he really wants is to get the home delivery restated without ‘much conflict or cost. ‘And, by the way, you haven't had time to ‘investigate the underlying details. Here is one possible “first letter,” adapted from areal one. Are the boldface phrases likely to help or hurt your client’ cause? Dears Richards represent dam Riso who, a8y0uROM, teased a property to our lent Roger Page in December 1298. Page perpetrated afro ca Mr Rstovin connection with the leaseand ins subsequent dealings with my client ‘That fraud needs tobe remedied: toassuea ‘romp resolution, Tam forwarding acony of this ter to Me Page's franchise, Burer- Time Restaurants ne "When the property was ast to Mi Pa, hema cern promises abouthomedelvery {Me Risto ble the franchiser ought to snow that Mr Page created this web of es tmerl tine Mr Ristov to enter the ase ‘As youare obviously aware, Mr. Rstov is nited to recevea percentage of theresa rant’ rots When my cht recent tid ‘ery Mr Pageabout the rash desion to stop sll fome delivery Me Page guaranteed that Stopping home clivery would increase pat its He thereby tied to buy off Mt Risto. Many lawyers will ind nothing wrong with ths letter. Infact, about 50 percent of the lawyers have spoken with think eters like this are fine. Yet that means about 50 percent, including me, object to letters that adopt tis antagonizing tone. Here are the problem phrases, with my comments: “Perpetrated a fraud.” This phrase directly accuses opposing counsel's client of fraud. That is too strong an accusation for your frst leter. Besides, iis prema- ture when you've had little time to gather facts “To assure a prompt resolution, Tam forwarding a copy of this letter to Mr. BT ‘TRIAL # June 2002 Page's franchiser.” In a first letter, this isa drastic step, You might hope it will prompt a better or faster response, but an angrier and more defensive response is also likely. “The franchiser ought to know that Mr. Page created this web of lies.” Again, the threat of contacting the franchiser antag- onizes. And “web of lies’—besides being a cliché, which you should avoid-—unnee- essarily characterizes the opponent ina negative light. Generally, that’s not wise tnless you intend to antagonize opposing counsel “As you are obviously aware.” This somewhat sarcastic phrase implies that you can read opposing counsel's mind and know what he or she is aware of. This approach offends some (“How does she ‘know what I'm aware of?”). “Rash decision.” Without having had ‘much time to gather facts, you may unnec- essarily offend by characterizing the oppo- nent’sactions so negatively. “Tried to buy off Mr. Ristov.” This, too, characterizes the opposing party's actions; its fairly sordid accusation. Now; how can you improve thisleter to achieve what your client wants? Here are revisions of the problem phrases, with explanations: “Perpetrated a fraud.” —Broke a pro- mise. In context, this is probably more accurate, and it is nota slur. “To assure a prompt resolution, I am forwarding a copy of this letter to Mr. Page's franchiser.”—Omit this. You may eventually decide to contact the franchser, but you can reduce a lat of the potential tension here by dropping this phrase. “The franchiser ought to know that Mr. Page created this web of lies.” — Mr. Risfov relied on Mr. Page'spromise of home deliv- ery when Mr. Ristov entered the lease. This ‘isamore concrete, factual description with- out the cliché or the antagonizing threat of ‘reporting the situation to the franchiser. “As you are obviously avare."—As you maa row or Te eae proves that. Tone dow the assertion of what opposing coun- sel is aware of, or just state the facts. “Rash decision." —Decision. Avoid characterizing the decision. “Tried to buy off Mr, Ristov.”—Lifort fo dissuade Mr. Ristov was not successful. Again, rather than comment on the ac- tions, describe them more objectively. A theme emerges from these revisions: Report on what happened instead of com- menting on it, characterizing it, or inter preting the motives behind it. That approach to legal writing works well in almost any context, but especially in writ- ing to opposing counsel Ifyou force yourself to be specific, you will be less likely to write a letter that will provoke unnecessary delay, expense, and stress. Remember, the hypothetical client is most concerned with regaining home delivery peacefully. He probably does not ‘want to start nasty litigation. IFhe does, then the origina letter i jus fine Infact, nearly al the lawyers I surveyed believe there isa place forthe “nasty” lt- ter. Most said thatthe original leter here islessharsh than others they hae een, So you may decide itis appropriate to send a letter exactly lke the original. But remem- ber to consider the audience, the goals of your client, and the potential reaction to ‘your letter. Hereisa complete revision ofthe eter, changing toa more balanced, professional tone. ear Ms Richards Trepresent Adan Rist, who, 2 you know leaseda property to your clint Roger Pagein December 198, Mr. Page broke a promise to i Ristovin connection with he eee anc in his subsequent deangs with my client. That needs tobe remedied. ‘When the propery was eased to Me Page, ‘he made certain promises about home deliv cry to Mr, Risto. Me Risto relied on Mr. Page's promise ofhome delivery when Me Ris toventeedthe lee, ‘he ease provides that Me Ristovisetiled ‘oreceivea parentage ofthe restaurants pr is, Wher my client recente to guery Mi Page about the decision tostopal home deliv Mr Page guarantead that stopping home avery would increase profits Hiseflor to dis ‘se Mr Rit vas not sees Be specific ‘Make your letters as precise and clear as you ean, You cannot reveal client confi- dences or release strategic information, but you can explain exactly what happened, ‘what it means, and what you want. For example, instead of writing, “a breach has occurred,” describe the under- lying facts: “Your client did not make the December payment, which breaches the contract.” This will also help you avoid antagonizing. Describing something spe- cifically will often keep you from charac- terizingitor commenting on it. Plus, if your client’ gals to move the dispute along amicably and resolve iteffi- ciently, specificity pays. Specific details in “demand” letters are easier for opposing ‘counsel to respond to, which can speed up and smooth out the resolution of disputes. ‘Specific responses and explanations when replying to demands are also much more +helpful in settling matters than are broad generalizations or vague descriptions. And if you force yourself to be specific, you will be less likely to write the reflex- driven “go to war” letter that can so often provoke unnecessary delay, expense, and stress for your client. Heres the letter again, incorporating the revisions for tone, this time with the ‘vague and general phrases in boldface: Dear Ms Richards repent am Rist, whoa youn ‘eased a property to your lent Roger Pagein December 198, Mr Page broke a promise to ‘Me Rstvn connection wit he lease ain his subsequent dealings with my lien. That needs tobe remedied ‘When te property was leased to Mr Page, ‘he made certain promises about home deliv- ery to Mr Risto. Me. Ristv relied on Mr. age promise of home delivery when Mr Ris toventeedthe lee ‘he ease provides that Me Ristovisetited toreceivea parentage othe restaurants prof its When my cence ted to query Me Page boat the decision to stop all home dei ey Mi Page guaranteed that stopping home

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