Tips for Writing a Confidential Settlement Letter
Writing a demand letter or a confidential settlement letter is just like telling a story. Your client has a position and you as his advocate are going to champion that position zealously. If you have not tackled drafting a demand/settlement letter before, don’t panic. If you break the assignment into steps, you will have a workable product that can be built upon through the input and review of your attorneys.
When I write a settlement letter I begin by reviewing the entire file. I am always amazed at how many details I have forgotten. I make notes of pertinent and critical information that I need to include within the letter and I also note the “points” that I feel make “our case.” (This might include hospital records, witness statements, product guidelines issued by a manufacturer, hospital protocol, etc.) The key evidence or component you have been discussing with the attorneys for the past several months will be stressed (perhaps numerous times) in this letter.
One way to get started, especially if you have little or no experience with writing as a paralegal, is to go back to first grade. Remember when you were learning to read and write?
“See Dick. See Jane. See Dick run. See Jane and Dick run.”
The sentence structure was so simple. Begin with the same type of sentences when you begin your letter. Sentences can be so easily expanded upon, changed, complemented, or completely erased with the use of your computer. Building your letter this way allows for you to review the file and add pertinent points wherever you feel they belong. You can worry about the word flow, grammar, etc. later. For example, when you are beginning your letter you might start with a simple statement regarding the fact that your client was injured. From there you expand and add the material ideas and facts that need to be addressed regarding that injury:
“Jane was injured.”
“Jane was injured."
--how was she injured
--what injuries did she sustain
--where was she taken for medical treatment
--what treatment did she receive
--what treatment is she expected to need in order to recover
--is full recovery from this injury a realistic expectation
--did she in any way contribute to her injuries
As you can see, it is easier to build the foundation of your letter this way. As you compose the actual letter, you will be able to see if you have touched on all the key points that you listed in this early draft/outline. Don’t be afraid to add lots of information, even if it seems unnecessary. It is easier to cut something out of your letter than to find and remember something and add it later. DON’T ever get rid of your initial drafts. There have been numerous times when the first drafts of a settlement letter are kept in the file for use at other times. If the case continues beyond the settlement/mediation conference, it may be important to have those other drafts in the file. Perhaps an issue that you felt did not need to be addressed in the settlement letter has now become a key element. Your early draft and how you addressed that issue can be valuable and useful. These drafts can prevent you from having to write something over again.
If you have not written a confidential settlement letter or a demand letter before, ask other paralegals or attorneys in your office for sample letters that were written by the attorney or his staff on other cases. Try to review several samples to get a feel for how the attorney(s) likes to express his thoughts and how he/she likes to put their letters together. You will more than likely be expected to adopt that attorney’s style. The only alternative to this is to impress him/her early on with your grasp and written presentation of the issues. If you write a letter that is complete and well-written, there may be little or no need for re-writes.
Remember that your word selection will not only direct the readers’ attention, but may well sway his disposition. Example: To your client the defendant is a "vicious animal," but to his attorney he is a victim of "unavoidable circumstances." Making such distinctions within your letter will direct the readers’ attention to the defendant’s behavior. Don’t focus on sounds, alliterations and cadences in your letter or your readers’ focus will be on the flow of the words and not on the content behind them. However, I was once advised by an attorney to “never us a 25 cent word if you can find a 50 cent word that works.” Basically, when you are writing the settlement letter, you have a chance to be the ultimate advocate for your client. You can use descriptive words to your advantage. Your 51 year old female client who suffered injuries caused by the defendant can be described as a “middle-aged woman who suffered grievous injuries as a result of the defendant’s callous disregard for her well-being.” You use your words to paint a picture.
I suggest that you finish the first draft of the letter and then go over it to be certain nothing has been left out. Check to make certain that the flow of ideas and the basic letter structure are appropriate. Then, when is seems as if you are finished with your assignment, START OVER. That’s right! Begin again. Leave your work behind you for a day or so (deadlines permitting), and give yourself a rest from the assignment. Then start with a fresh perspective and read the letter as if you are reading it for the first time. Believe me, you will find many words you want to change, sentences you will delete, and entire paragraphs you need to add.
After completing the first “re-write,” give copies to the attorney and associate attorneys who are assigned to the case. Usually everyone will have some input and good ideas. At this point it truly becomes a group effort. Yes, you run the risk of being returned a document that appears to have been shredded! But, you may also be returned a document where only a word or a sentence or two have been added/deleted.
Typical areas addressed in the confidential settlement letter are:
Summary of the facts
Claims and responses’
Analysis of the case
Each side will have their own opinion as to which area is the most important and which needs the most emphasis within the settlement letter. Perhaps the case law favors the defense. If so, and you are working for the defense, this area will be heavily stressed in your letter. Some tips for these areas are:
Summary of the facts:
The case has certain elements that are not in dispute. This portion of the letter will include the description of the facts that make up the case. Remember FACTS are facts. This is a description of what has happened. Save most of your rhetoric for the analysis portion of the letter.
Claims and responses:
Always remember that you must address the claims and responses of the other side. This case has another side or sides to it or it would not be in litigation. Don’t forget to address the claims/responses of the other side or your letter will not carry as much weight.
Whatever statutes or case law your firm has been concentrating on need to be addressed here. Also, if the law appears to be against you on certain issues, address that issue here and dispute it to the best of your ability.
Analysis of the case.
Analyze your case and persuade your audience that your client should prevail. Everything you have written in the previous paragraphs comes into play in this portion of your letter. This is where you zealously pursue your client’s interests. It is the objective of this area of the letter to persuade the person(s) reading the letter to jump into your client’s corner.
The first letter you write will be the most difficult. They do get easier the more times you do it, but there is always another around the corner that may cause you an incredible amount of difficulty to write. In instances where you just can’t seem to get started, ask for input from the rest of your litigation team. Sometimes “cart-wheeling” ideas with others will put you on the right track and get you moving towards a finished product.