Lawyer's Letters--Raising the stakes

By
Services for Real Estate Pros with Topkins & Bevans-etopkins@topbev.com

Lawyers are often the focal point of disputes between neighbors, family members, business associates and virtually any combination of personalities. While it is not always the case that people use my services for non-confrontational matters [estate plans, home purchases or setting up businesses], people many times consult with me, because they are unhappy with a situation and want resolution.

I cannot tell you how many times people have consulted with me, and the first thing they wish to do is start a lawsuit against another person or entity. I can tell you, from many years of experience, that lawsuits are almost always much more expensive for the litigants than at first imagined, and almost never produce the result which was sought when they are begun. The old adage that the only people who really “win” in litigation are the lawyers is sometimes true. On the other hand, many lawyers reach a point where they cannot, in good conscience, continue to bill their clients for the extended delays and machinations that characterize litigation, and billings arrangements are many times modified by lawyers, so that even the lawyers do not do well in the litigation arena.

This introduction leads me to a discussion of the efficacy of “lawyer’s letters” so-called, as a means of resolving disputes. My experience in disputes is that there are three “magic moments” in the course of a dispute, which may give rise to resolution. The first is the receipt of the very same “lawyer’s letter”. The second two are the receipt of a summons and complaint from a Sheriff or Constable, and the third is the date of the trial on the merits [usually extremely remote from the first two events].

When I write a lawyer’s letter for a client, I am trying to demonstrate to the person, or entity, to whom I am writing that the matter in question is “serious”.  I interview my client with the same precision as I would to file a lawsuit. I try to make sure I have all of the facts correct, and the sequence of events correct. That level of preparation, it itself, may have the desired effect. The other person knows that there is really not much left for me to do to start litigation. In effect, I have “raised the stakes” of the dispute to a level that makes the other side more likely to respond.

The other important part of my lawyer’s letter is I give the addressee some options which will be short of litigation. Normally, I do not threaten suit. I want the other side to understand that this matter can be resolved. I am not trying to paint the other side into a corner. In effect, I am doing just the opposite. I try to frame a solution whereby each side “bleeds a little” and they can move on.

Many times, I can achieve resolution by suggesting a mediation of the dispute. Many times, the other side only wants a fight. In any event, I suggest that it is always worth an initial effort to resolve matters short of a lawsuit, and that is what I always advise my clients.

 

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Re-Blogged 1 time:

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  1. Wallace S. Gibson, CPM 12/27/2011 05:24 PM
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Rainmaker
1,351,115
Andrew Mooers
MOOERS REALTY - Houlton, ME
Northern Maine Real Estate-Aroostook County Broker

Ahhh, poison pen letters, saber rattling, threatening to make someone a defendant on a court docket. Like kids that want their way or are taking their bat and ball and heading out of the back yard for home, we all need to mediate, not litigate. The wheels of justice, the lady with the blind fold holding the scales at the top of court house steps is slow moving, expensive. And delay resolution.

November 13, 2011 09:37 AM #1
Anonymous
Anonymous
Andrew Mooers

Andrew--I guess this post missed the boat. All the things you are complaining about are why I suggest a lawyers letter with a suggestion to arbitrate or mediate. I, personally, do not go to Court, because of the problems you advert to.

November 13, 2011 10:06 AM #2
Anonymous
Anonymous
A Concerned Citizen

Very interesting post

November 14, 2011 04:52 PM #3
Rainmaker
1,078,377
Wallace S. Gibson, CPM
Gibson Management Group, Ltd. - Charlottesville, VA
LandlordWhisperer

Elliott - like BBB complaints, I never respond to lawyer letters.  I received one this summer about a withheld security deposit and in their letter, the attorney indicated I could ONLY respond to them via e-mail.  After 20 days, my former tenant wrote me also and I did not respond.

If she has a case, her attorney - whose office is 2 hours from the county where she would have to file her $1,200 claim - should file a lawsuit.  I will then - at much reduced cost - file a COUNTERclaim and move the trial venue to the court that is a 30 SECOND walk from my attorney's office.

Here Kitty!  Kitty! Kitty!

December 27, 2011 04:05 PM #4
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Rainmaker
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Elliott S. Topkins

Massachusetts Real Estate and Title Atty
I need a Massachusetts real estate attorney
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