Learning and Preparing a Legal Malpractice Demand Letter

What is a Legal Malpractice Demand Letter?

A legal malpractice demand letter is a written communication sent by an individual (or entity) who believes they may have a claim for legal malpractice to an attorney he or she feels committed legal malpractice or was negligent at some point in time. The purpose of the demand letter is to inform the attorney of the issues the client/client’s representatives have with their actions or inactions and requests that appropriate redress be provided. Such a demand may include compensation, accountability, or some sort of resolution to the perceived harm. Demand letters often intend to set the stage for further action should the matter not be resolved in good faith. There are many purposes demand letters can and do serve; one of which is to preserve claims and avoid statute of limitations issues down the road. For some states, a demand letter is a jurisdictional prerequisite to filing suit against a negligent attorney .
Perhaps the most important use of a legal malpractice demand letter is to notify the offending party or parties prior to filing suit. The contents of a demand letter and any proper response will likely be admissible in court. Demand letters are useful in alerting the offending attorney or firm of potential liability and allowing them the chance to avoid further litigation by timely resolving the dispute. It is also a good way to prove you did give a negligent attorney an opportunity to correct things before pursuing legal action.
These letters are useful for both the client and attorney. They can assist in establishing a legal malpractice claim and gathering evidence during the pre-suit discovery period. Demand letters also help an attorney obtain the basis of his/her retainer. Requests can be made in these letters for the return of funds in the attorney-client relationship.

When to Send a Demand Letter

The first question that must be answered is when it is appropriate to even send a demand letter to the potential defendant. There is no one answer, but here are some general guidelines:
• You should contemplate sending a letter if you have a clear basis upon which to believe the care was substandard.
• Similarly, you should consider sending a letter if you have a strong basis upon which to believe you suffered damages that resulted from the alleged malpractice.
• If your case is relatively minor in scope, it may not even be worth sending a letter in the first place.
• If you cannot find an appropriate attorney for your matter it likely is not worth sending a demand letter.
The failure to send a demand letter before filing suit or commencing arbitration is not fatal to your case. An attorney will not be able to use your failure as a "get out of jail" card or as leverage against you to possibly lessen an award or settlement. However, this is solely at the arbitrator or judge’s discretion and you could be at a disadvantage in a mediation or settlement conference.

Essentials of a Legal Malpractice Demand Letter

For an effective legal malpractice demand letter, the following components are a must:
Opening Paragraph: An introductory paragraph should open the letter in which you state that you are writing with respect to a claim for legal malpractice against the attorney(s)/law firm(s). Include an explanation of how and why this issue has come to your attention, be as brief as possible, and include a request for a written response.
Factual Background: This is the meat of the letter where the facts (and documents) supporting your claim and damages must be detailed. Outline all the important facts, timelines, events and correspondence. Summarize the decisions made, and if possible, state when you seek relief and what form that relief may take, i.e., equal payment for the value of the lost case, settlement, etc. Include supporting documents as part of your exhibit(s).
Liability and Negligent Actions: This section is devoted to creating a road map to how the attorney, law firm or defendant is in breach of their fiduciary duties. Outline the negligent actions involved, i.e., failure to file a lawsuit before the statute of limitations runs out, or failure to notice up a default hearing. Clearly lay out how any breaches to the duty of care or other tort caused your damages.
Damages: In this section, provide a summary of damages and evidence supporting those damages. For example, if your damages are $100,000 dollars, a similarly complex case that is of equal duration and difficulty, but successfully handled by a different attorney, may be an appropriate form of evidence proving damages. If the attorney was negligent in failing to file suit, there should be damages easily quantifiable, like interest on damages and loss of property. If the damages are not readily quantifiable, this is something we will develop together with our expert consultants.
Conclusion: Sum up the key components of the various sections. Include a short time frame for a written response.

How to Write a Demand Letter

To begin the complex process of drafting a legal malpractice demand letter, you must first undertake a thorough review of the attorney-client file to help establish the necessary factual and legal elements of the underlying cause of action for which you are suing the attorney. After obtaining a comprehensive grasp of the facts, and having fully analyzed the attorney-client file, start drafting the demand letter by explaining the basis of your legal malpractice claim and why you should prevail. A good demand letter is analogous to a prosecutor explaining the defenses available to the accused or what the prosecution must prove beyond a reasonable doubt in order to obtain a conviction for a crime in a criminal law case. In that instance, the prosecutor is not likely to be swayed by the arguments of the defense attorney. In our experience, insurance adjuster’s often make final settlement authority decisions based on how quickly a case or claim can be resolved. Therefore, with respect to the dispute at hand, try to take the position that the attorney is clearly the party at fault and that he (or she) is liable for all the damages the client suffered. This is why it is paramount to review the attorney-client file before specific causes of action are pled, to identify strengths and weaknesses in the case, and to determine what evidence exists to prove or disprove the elements of a claim. After carefully reviewing the legal malpractice insurance policy, and examining the strengths and weaknesses in a potential legal malpractice claim, the next step is to draft a demand letter, which follows several well established techniques to persuade the reader to see the merit of the claim. First, put the reader on their "back foot" by explaining to them that they are the offending party. Second, acknowledging the strength of opposing arguments "seizes the moral high ground." Third, when drafting a legal malpractice demand letter, talking about your plans to file a lawsuit acts as both a realization of a potential threat, and demonstrates your willingness to go forward with litigation. Fourth, if you cannot settle your case, explain that you will seek further litigation to prove your point. Fifth, concluding your demand letter with suggestions to reach a settlement, before turning your attention to litigation, is also sometimes helpful to resolve a case. Sixth, reiterate the legal basis of your claim, and reaffirm the strength of your legal position in the demand letter.

Attorney’s Role in Legal Malpractice Demand Letters

When contemplating legal malpractice litigation, a demand letter is a common starting point. For some clients, it is a way to get their attorney’s attention and get them back on track. For others, the demand letter is an opportunity to force the attorney to settle on favorable terms before any litigation takes place.
There are many advantages to having an attorney draft or review your legal malpractice demand letter. For one, the attorney could be able to identify which claims are meritorious and which ones are not. They also are familiar with the law and know what, if any, damages could potentially be recovered. Being armed with such knowledge allows the client to make informed decisions before the letter is sent. Ultimately, having an attorney prepare a legal malpractice demand could save time and money by eliminating costly litigation over actions that do not give rise to an actionable claim.
Another major advantage to having an attorney prepare or review a legal malpractice demand is the possibility of improving your chances of a favorable outcome. An attorney should be familiar with drafting legal malpractice demand letters and negotiating those demands. Having an attorney write the letter , possibly with language from more favorable decisions, could influence the attorney to resolve the case sooner and on more favorable terms. Or, the attorney already could be familiar with litigation or negotiated settlement history and have some understanding of the attorney’s reaction to such a demand.
The decision to write a demand letter could vary based on the circumstances of each individual case. Accordingly, the need for an attorney to draft or even counsel on the potential need for a demand letter could save the client time and money down the road. Having an understanding of how your former attorney will react to the demand could help you decide on the best course of action and improve the chance of obtaining a settlement on favorable terms in the future.

What Happens After Sending a Demand Letter

After sending a demand letter to the attorney you allege committed legal malpractice, your options will break down into three broad categories. The attorney may choose to settle with you, may deny liability and refuse to settle, or may recommend litigation. A settlement offer is an ideal outcome to your demand letter and generally takes the form of a lump sum payment. If the offer is low, you may be disinclined to settle and choose to pursue other options. If the attorney denies liability and refuses to settle, litigation may be your only choice.
There are additional nuances to understand about these responses. For example, if the attorney denies liability, he or she will likely insist that they did nothing wrong and, therefore, do not owe you anything. This ‘not-guilty’ characterization of the behavior in dispute can be frustrating for a client.
If a denial is followed by litigation recommendations, the attorney may offer a referral to another legal professional, recommendation to file suit or an indication that they would help defend any claim you bring against them. Referrals to other legal professionals may or may not be useful to you. Many legal malpractice attorneys offer a referral service that can connect you with other lawyers in your area. Speaking with a lawyer who has specific expertise in your area of need is an option worth considering if there is another attorney who may be able to help you.
It may turn out that the demand letter is unsuccessful in gaining the desired response. Perhaps the lawyer with whom you are dissatisfied rejects your demand, or merely sends it to their malpractice insurance company. If this occurs, you will need to make a decision about how to move forward with your legal malpractice claim.

Common Pitfalls

Experience in any field helps to avoid issues, as does the knowledge of the profession. In the realm of legal malpractice, there are common mistakes made by lay people when responding to a legal malpractice demand letter. Let’s take a quick look, and hopefully prevent you or someone you care about from making those mistakes.
1: Don’t Ignore the Deadline! Speak to a Lawyer – FAST
A lawyer (or attorney) has an ethical obligation to address a legal malpractice claim (read about it here). The obligation begins with a "demand letter" which usually sets a six month deadline to bring suit. Unfortunately, the statute of limitations is a lot shorter for legal malpractice claims, too short, as we note in Sinclair v Long Island Rail Road – USTLA seeks an extension of the 2 1/2 year statute of limitations. So, when you receive a letter from a lawyer which states that you have six months to sue, what you really need is a lawyer.
2: Don’t attempt to even the score. Get a Lawyer
Many people feel that the best course of action is to fight fire with fire. If the lawyer were dishonest or deceitful, so will you. Don’t get sucked into the lawyer’s world, make the fight fair, get your own lawyer. I know lawyers from many states, so please ask if I can recommend one.
3: Don’t confuse anger with fact. Get a Lawyer.
Yes, the legal system (legal malpractice claims in particular) make many people very very unhappy. It is unlikely that you’ll feel any better by artfully composing a letter . It will make you feel better to express your anger in a well constructed complaint filed in court by an experienced litigator. It is a lot more satisfying to hold someone legally accountable for their actions than letting the angry emotions boil away in a letter.
4: Don’t give up. Do something.
Too many people take no action at all when they are unhappy with a lawyer or law firm for whatever reason. There is a misconception that taking no action, or a passive approach is a good idea. Legal malpractice cases by clients are a tenant of the legal insurance market, who consider such claims too risky or difficult, and far worse – extremely expensive in terms of the time and effort necessary for litigation. This allows lawyers to make a living on cases which are not worth that effort by the legal malpractice insurer. Too often people throw in the towel or take no action under these circumstances. The right question is why take no action, and that will be addressed in the next section.
The right answer is money. We are a plaintiff’s firm, that is all we do, we represent plaintiffs in legal malpractice cases. A typical legal malpractice case is a long hard slog for one good reason, they are going to litigation. The expenses are heavy and the time spent is significant by all involved. That is why an insurance company is underwriting your lawyer’s conduct, and controlling the defense. There should be an insurance settlement of a value in line with the value of the case at mediation, but policy limits cases just happen to be the ones we are in.