Very often, early in the course of representing clients, the same question comes up: “What do you think about sending a demand letter to the other side?“
A demand letter (frequently in the form of a cease-and-desist letter) is just what it sounds like: a written demand that the party that has caused harm tender payment or ceases damaging activity, or else face a lawsuit or protracted litigation.
Demand letters sometimes achieve the desired result right out of the gate, but in our experience, this is very rare. I’ve only seen this a handful of times in 13 years of practice. This is consistent with the principle that nothing worth having ever comes easily – you have to fight for justice much more often than not. That said, in certain kinds of cases, demand letters sometimes have a collateral benefit, which is to give you a preview of your opponent’s defenses.
Demand Letters vs. Civil Complaints
A good demand letter generally requires the same level of legal and factual investigation that a civil complaint does. Unlike a civil complaint, however, a demand letter does not start the clock for your opponent’s ultimate accountability in court. Prospective defendants sometimes just ignore demand letters, figuring that they’re likely bluffs and that the issue will only become one to take seriously if/when the Plaintiff files suit.
Indeed, demand letters can sometimes backfire because they give your opponent more time to prepare their defenses than they would otherwise have. This can significantly damage your command of the initiative in the case, which can be crucial to success.
Most important of all, you must never send a demand letter threatening a course of action unless you and your attorney are willing and committed to following the case through all the way through to jury verdict. If you should fail to do so, you can significantly damage your credibility (as well as your attorney’s).
The Results of a Demand Letter
Bottom line: you should generally not expect a demand letter to yield a quick and effective resolution, except in the rarest of cases where the stars align (enormous damages, clear liability, and reasonable defendant and opposing counsel on the other side). Most of the time, so long as you have done your research well, you’ll be better off filing your case as soon as possible.