The Art of Letter Writing: A Crucial Pre-Litigation Strategy
An essential tool for the self-represented to achieve a just resolution.
When a person is representing themselves, mastering the art of letter writing is an essential skill. I’ve learned that the primary purpose of writing these letters is to establish a formal line of communication with the other party, whether it's opposing counsel or the court itself. Unlike a phone call, which can lead to miscommunication and misunderstandings about context, meaning, or nuance, a written letter ensures clarity and provides a formal record. This formal record becomes an evidence chain, demonstrating a good-faith effort to negotiate and settle a dispute before resorting to litigation. It's a foundational step in attempting to resolve a dispute amicably.
The Anatomy of a Formal Letter
A formal letter has a specific structure. It should begin by stating who the letter is from, who it's being sent to, and the date. The introduction should clearly state the reason for the letter, and the body should convey your claims or counterclaims. You must also provide a way for the recipient to respond, such as a return address or email. This practice of back-and-forth correspondence opens up a formal channel of communication, allowing each party to respond thoughtfully and take their time to articulate their position. The goal is to be precise in your language so there can't be more than one meaning. This precision prevents claims of misunderstanding and adds to the evidentiary record.
Letter Writing as a Negotiation Tool
The exchange of letters creates a formal setting for negotiation. This process, often referred to as pre-trial negotiations, lets the other side know there's a dispute and the scope of the issue. It provides an opportunity for a "meeting of the minds" where you can present your claims, and they can respond with their counterclaims. They also get a chance to explain if you've misunderstood something, or to bring to light facts you may not have been aware of. This back-and-forth communication is a powerful way to test your legal theory and evidence informally before going to court. The ultimate purpose of this letter-writing campaign is to avoid litigation, as lawsuits should always be a last resort.
Building an Evidentiary Record
The letter-writing exchange is crucial for building a paper trail, which serves as an evidentiary record. This record can demonstrate that you have been trying to negotiate a settlement in good faith. If they ever try to claim you are litigious, this body of evidence can prove the opposite. This letter trail helps to protect you from being labeled a "litigious litigant," someone who files lawsuits prematurely or without merit. It also protects you from being seen as a "vexatious litigant," a person who uses the legal process to harass or intimidate others. By having a clear and consistent record of your attempts to resolve the issue, you can show the court that you were not quick to sue but instead tried to handle the matter responsibly.
Informal Discovery
Another vital aspect of this letter-writing process is that it acts as an informal discovery procedure. While a formal discovery occurs in court with sworn testimonies, depositions, and the exchange of documents, the letter campaign allows for an earlier, less formal version of this. In this informal process, you can find out if the other side has any information that might be "fatal to your cause" before you ever file a lawsuit. Discovering these issues beforehand is a huge advantage, as litigation is costly and time-consuming. This informal discovery helps you create a stronger case for yourself and can even lead to a favorable settlement without ever setting foot in a courtroom.
The Path to a Just Outcome
Ultimately, every letter you write and every response you receive can be used as evidence later on. Because of this, it is critical to be strategic, tactical, polite, and formal in your communications. The entire letter-writing campaign sets the stage for a strong legal case in your favor. It allows you to test your evidence, find out what the other side knows, and try to achieve a settlement before entering the complexities and costs of litigation. This process helps to ensure that you are seen as a credible and professional person who sought a just resolution outside of court, which is a commendable and powerful position to be in.