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Why do people hate to get letters from lawyers? They carry bad news. They mean serious business. They're hard to understand. They use strange words. They carry the inherent threat of suit.
Why do lawyers send such letters? They mean serious business, and they intend to sue.
But must they use those ancient, strange words and be so hard to understand, or can lawyers express serious business and imminent suit using words everyone knows?
Whether writing a demand letter to a contract breacher, an advice letter to a client, or a cover letter to a court clerk, the letter fails if the person receiving it cannot understand what it says.
All of these letters have one thing in common: They are not great literature. They will not be read in a hundred years and analyzed for their wit, charm or flowery words. With any luck they will be read just once by a few people, followed quickly by their intended result, whether that be compliance, understanding or agreement.
Lawyers are Letter Factories
Lawyers write many, many letters. An average for me might be five letters a day. This includes advice letters, cover letters, demand letters, all sorts of letters. Some days have more, some have less, but five is a fairly conservative average, I would think. Five letters a day for five days a week for fifty weeks a year is 1,250 letters a year. This is my 25th year in practice, so it is quite conceivable that I have written 31,250 letters so far.
Why do lawyers write so many letters? A primary reason lies within the ethics of our profession. Florida Bar Rules of Professional Conduct Rule 4-1.4 says:
"A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
While clients can be kept informed and given explanations orally, lawyers certainly know the value of the printed word over the spoken word: it is not as easily forgotten or misunderstood. Letters also create a record of advice given, which is useful to both the lawyer and the client. That is why letters are the preferred method of keeping clients informed and giving clients explanations.
Some Things To Do Before Writing
Before you start writing the letter it makes sense to do some preliminary background work.
"In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer."
Simple Stuff That Will Make You Look Dumb If It's Wrong
Letters begin with boring things like the date and recipient's name and address, but if any of these are missing or wrong the letter writer will look pretty careless, to say the least. So be careful when starting the letter, and you can even include some extra things that will make the letter even better than the regular letters the recipient receives.
Consider using the international dating convention of day-month-year rather than the U.S. convention of month-day-year. As reported in the 1 June 1999 Wall Street Journal:
"The quirky U.S. style of date-writing is giving way to the day-first standard used by most of the world.
... Both the MLA style guide and the Chicago Manual of Style support the day-first format. 'You get rid of the comma that way,' says Joseph Gibaldi, director of book acquisition for the MLA in New York."
If you are sending a fax or email, then type the time next to the date. While letters "cross in the mail" in days, faxes and emails "cross in the wires" in hours and minutes.
NOTICE: This is privileged and confidential and intended only for the person named below. If you are not that person, then any use, dissemination, distribution or copying of this is strictly prohibited, and you are requested to notify us immediately by calling or faxing us collect at the numbers above.
Date Sent ________ Time Sent __ 95;_____ Number of Pages _______ _
Person Who Conf'd Receipt _________
After sending a fax, call the recipient to confirm receipt and write that person's name in the space provided. Never rely on the fax machine itself to confirm a fax transmission; fax machines do not yet have the credibility of a human witness.
The Corpus of the Litterae
The body of the letter is why you are writing it. You succeed by leaving the reader with full knowledge of why you wrote the letter and what it means. You fail by leaving the reader dumbfound and clueless as to why you sent such a letter. While most letters fall somewhere in between these two extremes, following these suggestions will keep your letters on the successful end of the scale.
Identifying your client is an ethical concern, as well. Florida Bar Rules of Professional Conduct Rule 4-4.3 says:
"In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested."
Therefore, the first time you write someone a letter, the letter should open with the following sentence: "I represent _________." After that, every time you write another letter reconfirm who you represent by referring to your client by name and as "my client."
purpose of this letter is to _________."
"This letter is to inform you that _________."
"My client has instructed me to _________."
"This is to confirm that _________."
"This confirms our phone conversation today in which _________."
The enclosures should be described with specificity so that there is later no question as to what was enclosed. At a minimum, the title and date of each document should be listed. If the document was recorded, then the recording information should be included. Whether the document is an original or a copy should also be specified. The following is an example:
"Enclosed are the following documents from your closing held on ___/___/1999 in which you purchased the home at _________, St. Petersburg, Florida, from _________:
- Warranty Deed dated ___/___/1999 and recorded on ___/___/1999 at O.R. Book ____, Page ____, _________, County, Florida (original)
- Title Insurance Policy issued on ___/___/1999 by _________ on _________ as policy number _________ (original)
- HUD-1 Settlement Statement dated ___/___/1999 (original)"
"In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation."
"During the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel."
Playing with the Words
Why does it take lawyers so long to write letters? Because we play with the words. We write, rewrite, move around, delete, cut and paste the words over and over and over again until we are happy with the way it sounds. That's the art of legal writing. It's like Picasso painting over the same canvas again and again, transforming it from one painting to another and then to another until finally he is satisfied with the result. Not always 100% satisfied, but good enough for it to go out the door and into the world. That's why writing is an art. And that's also why more copies of WordPerfect were sold to lawyers than any other industry. So here are some things to play with.
Every profession has its jargon. That's not bad. It's part of our identity. It's a form of shorthand. It's a form of common knowledge among professionals. If my physician failed to use jargon in describing a medical condition, I would probably wonder if I had the right expert. A good professional not only knows the jargon, but can also explain it to a layman. Therefore, show your expertise. Use the jargon when necessary, but explain it when you use it.
Be consistent in your use of grammar. Be aware of such things as where you put ending quote marks, whether you place commas after years and states, and similar variations in style. Many rules of grammar are a matter of choice, but your choice should be internally consistent within the letter.
"Wherever used in this letter, the word "Goods" shall mean the goods that _________ agreed to purchase from _________ under the Contract."
"Make the paragraph the unit of composition: one
paragraph to each topic."
"As a rule, begin each paragraph with a topic sentence; end it in conformity with the beginning."
"Use the active voice."
"Put statements in positive form."
"Omit needless words."
"Avoid a succession of loose sentences."
"Express co-ordinate ideas in similar form."
"Keep related words together."
"In summaries, keep to one tense."
"Place the emphatic words of a sentence at the end."
Now that you have the letter written, it's time to do some cleanup work before you hit the send button.
Recipient's name _________
Computerized Letter Writing Tips
My wife Cathy said I have to put this way at the end here because this article is about letter writing and not computers. She thinks I love wrestling with computers as much as I love playing with words. She's right. In my first three drafts this section was on page one.
But I think anyone who likes to play with words should play with them on a computer. That's where they really dance. And when you've written 31,250 letters, as my earlier calculations indicate I may have written in my practice so far, a fourth of them before I started writing letters on computer in 1980, you really begin to appreciate the ability to cut and paste text from prior letters. So here are my tips for anyone still around willing to listen.
Letters serve many purposes: advising clients, seeking compliance, sending documents, obtaining information. All letters benefit from clear writing and simple organization. Lawyers who write direct and concise letters to nonlawyers are more likely to achieve successful results.
Writing letters is no different from other lawyering skills. The demand letter that the recipient cannot understand is no more effective than a shouting match. If you want a shouting match, then by all means write long letters with big words that no one understands. But if compliance is what you really want, then writing a letter that the recipient understands is really the order of the day.