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How do I go about sending a letter requesting an out-of-court settlement to someone I can potentially sue?
May 30, 2012 10:59 PM   Subscribe

At the advice of counsel, I need to send a letter to a party I thought about suing suggesting we settle a personal injury case out of court. The lawyer is out of the picture for now, otherwise it'll cost me money. So... how do I do that?

I consulted a lawyer about a personal injury matter. He said that before I retain his services, I should send the potential defendant a letter asking/suggesting that we "reach an agreement without getting counsel involved." He says his legal services and the case will cost a lot of money and his professional opinion is that this case can be settled between the two parties without lawyers involved.

I wish I could have asked the lawyer the questions I am about to ask you, but alas, that would have cost me (he didn't charge anything to look at the case and call me on the phone with his advice).

How do I go about sending someone a letter like that? What is that letter even called? Is there protocol I need to follow? A template I can use? Can I email, or should I snail-mail it? Who do I send it to, and cc?
posted by Opal to Law & Government (5 answers total) 2 users marked this as a favorite
 
Something like this is typically called a demand letter, and in it you'd alert the party that you have a potential claim against them, briefly set forth the factual and legal underpinnings of your claim, and then state an amount you'd settle for.

Do:
-plainly mark on the letter that it is "For Settlement Purposes Only."
-state an amount that you'd settle for that is higher than you're bottom line. This is a negotiation.
-set forth enough of your favorable facts that when the other party takes it to their lawyer, their lawyer will (hopefully) be able to tell them that, yes, if what you say is true you have a viable claim
-explain in some fashion why you believe the other party is liable to you. Just state facts, you don't need to exaggerate too much
-explain the basis for the damages you are claiming, and state what you feel your claim is actually worth (high number), then explain that in the interest to save the time and inconvenience of litigation, you're willing to settle the matter now and release your claims for $x (clearly lower than the first figure, but more than you're actually willing to settle for)
-invite them to respond so you can discuss a mutually agreeable settlement

Don't:
-get into ad hominem attacks on the other party
-go way off into irrelevant stuff that no reasonable person would think they are liable for
-actually threaten anything, aside from saying that if the matter isn't resolved now you'll have no choice but to pursue appropriate action, including litigation
-exaggerate in an attempt to make your claim sound way more attractive than it is

So, a letter could very roughly be something like,

Dear ____:

On April 30, 2012, you struck me with your vehicle as I was crossing the street at the intersection of Oak and Third. As several witnesses said, you rolled through a stop sign and into the crosswalk, hitting me and knocking me to the pavement. I had to go to the hospital, where the doctors treated me for a broken arm and concussion. In fact, I am still seeking treatment and the doctors may not yet be aware of the full extent of my injuries. As a result being hit by your car, I have missed three weeks of work.

I would rather not go to court over this matter, but the injuries I incurred did cost me money and have greatly affected my quality of life. The medical bill alone was $____, the lost wages at work were, $___, and there were additional expenses beyond that. It is very likely that a jury verdict could be well over $_____. But in the interest of resolving this quickly and without having to put ourselves through litigation, I would release my claim for a payment of $________. Please contact me so we can discuss a mutually agreeable solution.

Sincerely,


You do not need to cc anyone, unless someone should obviously be cc'd. If you know they are represented to counsel, you could cc their counsel, or even direct the letter to their counsel, instead, if you wanted to.

Write the letter on actual paper, letterhead if you have it. The less formal it looks, the less seriously they'll take it, as a general proposition.
posted by MoonOrb at 11:38 PM on May 30, 2012 [6 favorites]


Is there an insurance company involved?
posted by lee at 11:44 PM on May 30, 2012


Send it certified mail.
posted by pearlybob at 12:53 AM on May 31, 2012


You go back to that lawyer, or to another, and tell them you want to hire them by the hour, and that you're only hiring them to write a demand letter. Once they write it, then you're done with that lawyer.

Look, the lawyer will charge somewhere between $150 - $400 an hour, but it shouldn't take more than an hour or two of their time to write such a letter (if even that much). I assume the dollar value of your dispute is great enough that a few hundred dollars would probably be well spent in that fashion. If not, then, well, figure out a letter you can send yourself, like the first answer in this post.

What the lawyer was _probably_ saying is that if you hired them to represent you on a contingency basis, it would likely be a money-loser to you because your lawyer would take 25 percent or 33 percent of the settlement, even if he or she only put in 2 or 5 or 10 hours of work. So don't do it on a contingency, do it by the hour, and make sure to have a written fee contract.

This is not legal advice. I detest personal injury law and I am not your lawyer.
posted by Happydaz at 1:20 AM on May 31, 2012 [5 favorites]


The less formal it looks, the less seriously they'll take it, as a general proposition.

They will take it much more seriously if it comes from an attorney. Particularly if the other party does have an attorney or is covered by an insurance company with lawyers, it may well be to your financial benefit to pay the attorney just what it would cost to write this letter and possibly also to negotiate the payment once the other party responds. You have to pose a credible threat. If you don't have a lawyer, they'll give less weight to the possibility of you filing a lawsuit.
posted by slidell at 6:58 AM on May 31, 2012 [1 favorite]


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