Occasionally, a potential client calls me and asks if I would “just write a demand letter” to the recalcitrant company or person on the other side of a dispute. I don’t do this. When I’m hired to pursue a claim for a client, I will rarely send a demand letter before filing the lawsuit. The reason is simple: it’s a waste of time and frequently puts clients at a disadvantage.
By the time a dispute reaches my office, there has almost always been a back and forth between both sides trying to resolve it without involving lawyers. A letter from a lawyer won’t magically end it. Litigating cases for 17-years in two states, my experience has been there are lawyers known for writing scathing demand letters but rarely taking any action beyond putting a stamp on the envelope. Everyone knows the “letter writers” and no one takes them seriously. The most effective lawyers are the ones you never hear from until a lawsuit lands at your door.
The other reason I rarely write demand letters is that it can put the client at a disadvantage. A demand letter alerts the opposing side that a lawsuit might be coming and may spur them to rush to the courthouse to sue first. This makes them the plaintiff. At trial, the plaintiff conducts voire dire of the jury panel first and makes an opening statement first (even if there is a counter-claim). This means they are the first to frame the issues and the first to establish a theme. There is a decided advantage to going first. I don’t want to lose this advantage by tipping off the other side to an imminent lawsuit with a useless demand letter.
There are exceptions. Certain contract provisions and statutes require notification of the issues or a demand before filing a lawsuit. When there is no possibility of a claim brought by the other side a demand could be useful. However, usually a demand letter before filing a lawsuit can be a strategic mistake.