No Demand Letter is Better than a Bad One!
DISCLAIMER: As always, my blogs are aimed at providing general information, not legal advice. Always consult an attorney when making a decision as to legal matters. Enjoy!
You just stamped, sealed, and dropped your letter off into the mailbox. You’re feeling pretty good about the fact that you just saved a few hundred dollars and that two-face, double-crossing, good-for-nothing contractor is at last, getting what he deserves. A mouth full of yours truly. Right? Gosh, it feels good to unload. And why not? You're in the right, he’s in the wrong--it's just that simple.
I imagine that most people, whether they’ll admit it or not, have that triumphant moment where they finally put into words what they've been thinking all along. I know I have.
But before we pop the cork to that beautiful bubbly bottle of champagne, let’s pump the brakes for a second and make sure our celebration is not premature.
Good Demand Letters should not only be pleasing to the eye, but brimming with important information. After all, a sound letter can, and will, be the difference between success and failure.
So, what’s the trick behind writing a good demand letter? And more importantly, why not writing a demand letter at all is still better than sending a poorly written one. The answers may seem obvious, but you’ll be surprised, how often a set of key principles are overlooked and/or misapplied--time and time again.
Let’s start with the fan favorite--a good demand letter.
FORMAT FORMAT FORMAT.
It can not be stressed enough how important format is when talking about a good demand letter. Having a clear and concise manifestation of what your issue is, how the law favors you, and ultimately what your demand is, is absolutely critical to a demand letter’s overall success.
First and foremost, make sure you are sending the letter to the correct place.
For example, say you hired Flaky McAdams to build you a bathroom, but he doesn’t follow through. And just to muddle the waters, let’s say there are three locations you could potentially send the letter to: his primary residence, vacation home, or place of business. Now, you may be shaking your head and thinking, “It’s his home, it has to be his home.” Gosh, it's obvious, right? Actually, not so much.
Whether Mr. McAdams spends the majority of his time at home, his vacation home, or his office, will be a case-by-case study. It might be the middle of winter, and seemingly this guy would rather be at his sunny vacation home, rather than getting beat down by subterranean temperatures. Or perhaps he’s a workaholic (which seems counterintuitive if he’s flaking on his job with you), and spends 70% of his time at the office. Or maybe he’s just the prototypical person that actually spends most of his time at his primary residence when he is not working. Whatever the case, it's important to know where to send your demand letter.
Why? Because in BOLD blistering print, you're going to give Mr. McAdams a DEADLINE. Essentially telling him that if he doesn’t make amends within a week (or two) you’re going to file a lawsuit. Thus, every day he doesn’t have your demand letter can be detrimental. It effectively increases the probability you’ll have to make good on your demand, which in-turn, means going to court. Something we would all like to avoid, if possible.
Second, which RULE/LAW you choose to use matters! Now, if the facts don’t fit the law, well....there’s really nothing you can do. Don’t force it--they either fit or they don’t. Coercion never bodes well.
Thirdly, use FACTS! Facts that dovetail the rule are imperative. Not to say you should saturate your letter with facts, no no no. Cherry pick your facts. Pluck out the big, juicy, incontestable facts, and stick it into your demand letter--those are the ones you want. Always, always always make sure the facts you use are important to your claim (in a breach of contract case, use facts that show how the recipient breached i.e. didn’t finish the job, work is faulty, etc.).
For instance: The fact that Flaky did not build your restroom as he said he would, raises a damages claim based on a theory of breach of contract. If I were you, I would include the facts that unequivocally show that the Flakester is in breach. You can do this in a number of ways- producing the contract itself, invoices evidencing a contract, detrimental reliance i.e. receipts showing that you paid Mr. McAdams, but still don’t have the bathroom he promised, etc.
Just remember, as satisfying as it may be, to mention that on the day Mr. McAdams was supposed to build your bathroom, he was instead at McDonald’s, knocking down Big Macs like a pudgy kid at a pie eating contest, it probably won’t help your case much.
Fourthly, make a demand and STICK to it!! But Ruben, what do you mean? Ask for something, otherwise what's the point? More importantly, make sure whatever it is you're asking for, is unambiguously clear to the reader.
Example: If you had to pay someone else to build your bathroom, because Mr. McAdams flaked on you, you can recover the overage from Mr. McAdams. It doesn’t matter that it ended up costing more than the contract you had with him. Hence, your demand would be for the DIFFERENCE between the two contracts.
Formula: [New Contract Price minus Old Contract Price= $ Damages $]
Finally, set a DEADLINE. I would recommend one to two weeks. This is pretty standard. Any more time, people tend to get too lax, and at this point in the resolution process, the last thing you want is a lackluster McAdams.
So, now that we know how to write a good demand letter, let’s look at the equally important principle of not writing a demand letter, if doing so, means that it will be subpar.
“YOU BETTER!! KEEP IT UP AND I’LL SUE YOU!!!
THIS IS YOUR LAST CHANCE!! YOU GOOD-FOR-NOTHING, ….”
These are telltale signs of a poorly worded letter. I’m not saying that Flakey doesn’t deserve a stern rebuke or that the words don’t justify the emotion. Not the case. What I’m saying is, that in the world of demand letters, the most aggressive letter, doesn’t always win. In fact, the only thing it guarantees is an equally emotional reaction. And ladies and gentlemen, in the course of negotiations, heightened emotions and reactions, from either side, is the very last thing you want. So please, I implore you, do not give into your primal urges. For the sake of glory and victory, or whatever you want to call it, stay calm, stay focused, and above all...stay cordial.
As stated earlier, no demand letter is better than a bad demand letter. But of course, it goes without saying, a good letter trumps them both.
So, now that you’re equipped with this newfound knowledge... don’t be reluctant to draft that letter of demand the next time someone wrongs you, and that wrong has legal ramifications.
Until next time, jurisprudence, my legal bugs!