FORGET THE LETTER, FILE THE LAWSUIT
I always advise my clients to engage in litigation or arbitration as a last resort. Litigation is an expensive and difficult process often taking a personal, financial, and psychological toll on the litigants. Litigation will cost you money. Litigation will cost you time, taking you away from focusing on your business. Litigation will be stressful and in most cases litigants are rarely fully satisfied with the results of their court case or arbitration. So, why in the world am I writing an article encouraging litigation?
Let me explain. In over twenty-three years of legal practice, I cannot recall even one instance where I sent a letter to someone my client believed owed them redress (money, an injunction, etc.), and the other side said, “you’re right, please let me pay you in full or stop the conduct you claim I am doing.”—never happened, unlikely it ever will. What I do often receive in response to my letter is a return letter telling me how wrong my client is/my client is a liar, that my client had better not sue, and threatening me and my client with every legal remedy in the book if we ever dare to even bother them again. I do not blame the other side, that attorney is doing his or her job, and there are times such responses either scare litigation off or cause the client to have second thoughts. Of course, the natural response on my side after receiving what I refer to as “lawyer’s letter number one” is to send a letter back reminding the other side how wrong they are and how my client will no doubt obtain a massive judgment with all accompanying legal remedies. This written ping-pong will often continue for several more letters before one side or the other simply gives up (unlikely) or files litigation.
Put another way, a letter writing campaign is virtually always ineffective, and can, in most cases actually be harmful to the case. A few thoughts on the letter writing campaign, first, it is a waste of money. Many hours of an attorney’s time can be spent (and paid for) writing these often ineffective letters. Second, the other side is alerted to the fact litigation is planned, often giving them more time to prepare, and possibly hide/destroy evidence and/or hide assets. Third, the other side is often alerted to facts and claims in a lawsuit. Fourth, the other side is given time, often weeks or months of delaying your client’s case and possible redress. We have a saying in our law firm, it’s just as easy to write a lawsuit as it is a letter. Once the other side has been served with the lawsuit, they will know you are serious and they have 30 days to respond to the lawsuit—period.
I never encourage litigation, but, there are many circumstances where it is necessary. Sometimes, after examining all the facts, the decision that litigation is the best option will need to be made. While all efforts to settle and/or reach a resolution should be explored, a letter writing campaign is often an ineffective, costly and time consuming waste. If the decision is made to litigate, get it started. Once you force the other side to appear in court, they will often be far more realistic in their correspondences when they know they are on a strict time limit with court deadlines to follow and that they will now need to incur the cost of an attorney and other litigation related costs to defend your claims. Often times, after a lawsuit is filed, the first letter the other side sends will be one opening up of possible settlement options rather than “lawyer’s letter number one.”
If you have a personal or business dispute, Schreiber & Schreiber, Inc., can assist you and review your numerous options to reach the most efficient and optimal solution, be it negotiation, litigation, arbitration, mediation or other forms of alternative dispute resolution.
Eric A. Schreiber is a partner of the law firm of Schreiber & Schreiber, Inc., and is a licensed California attorney (SBN 194851). This article is for informational purposes only and should not be construed as legal advice or the creation of an attorney-client relationship. Copyright 2020 all rights reserved.