“I still think it would be pretty awesome if we, someday, did a writing blog thingy by posting either paragraphs, or a short legal writing prompt, and saw the various different things that people did with them, and maybe descriptions of why.” This suggestion by one of the guys on LawyerSmack sparked a discussion about doing a writing exercise where we would take a fact pattern or a pre-existing document, create our own (better) variations on it, and share it with one another. So I appropriated the idea and sat down one night to punch out a fact pattern for us. For this first exercise, we went with a simple personal injury demand letter.
The Fact Pattern
Your client, Carl Claimant, was sideswiped by a tractor-trailer that was changing lanes on the interstate. The commercial vehicle was driven by Tanya Trucker. Assume no fault by your client.
She was taken to the hospital by ambulance. Diagnostic testing revealed soft tissue whiplash injuries. The ambulance bill was $600. The hospital bill is $17,000. She followed up with her primary care physician who referred her to physical therapy, which she attended for four weeks and incurred $2,500 in bills. She then treated with a chiropractor for 8 weeks and incurred bills of $4,000. You are now 12 months out from the accident. Your client claims continued back and neck pain that affects her daily activities, but she has not had any additional treatment.
Assume the trucking company, Bad Mamma Jamma Trucking, has a $1MM liability policy. There was not any wanton conduct. No citations were issued resulting from the accident.
I issued the following instructions to the participants:
You will need to write a settlement demand to the claims adjuster explaining the trucker’s fault in some way and detailing your client’s claimed injuries and damages. Your demand letter must be your effort alone and may not be proofed using BriefCatch or any other similar product. Submit your demand letters to me via DM in a format that can be read by MS Word (.rtf, .doc, .docx) by 5pm Central on Tuesday, May 29.
We used two independent methods of judging the entries: (1) the LawyerSmack folk voted in a poll on which demand letter they found most effective and likely to lead to a positive result for the client; and (2) using the 5 criteria in BriefCatch (the Microsoft Word extension created by Ross Guberman to help improve legal writing): reading happiness, sentence length, flow index, punchiness, and plain English index.
Before we jump in, I need to make sure we understand what BriefCatch does not do – it is not designed for assessing critical thinking or legal analysis. It functions to improve your writing by making it more direct and concise, with simpler word choices and sentence structures, and by using transitions from one sentence or paragraph to the next.
Ross generously donated one of his books to the participants whose entry was chosen by the other lawyers and who scored highest using BriefCatch.
Demand Letter Submissions from the Participants
Regardless of which entry won the contest portion of this exercise, one of the things we were most interested in is how we could take one set of facts and show the variations in approach, writing styles, and diversity in demands arising from it. The exercise was an interesting peak into into each other’s processes and provided evidence of why practicing law and settling cases can be so difficult.
Entry Number 1
I represent Carl Claimant. Your insured, Tanya Trucker, struck my client’s vehicle on March 25, 2017 while traveling northbound on Interstate 3.14. Your insured is fully liable for the accident. Allow me to explain.
Your insured drove a tractor-trailer with an unloaded curb weight of approximately fifteen tons. Mr. Claimant drove a Honda Fit weighing a little over one ton. The accident occurred when your insured changed lanes suddenly, barreling into the side of Mr. Claimant’s tiny car. A copy of the police report along with photos of Mr. Claimant’s vehicle are attached if you care to review it. Luckily, Mr. Claimant survived your insured’s carelessness, but not without significant injury.
Mr. Claimant immediately complained of back and neck pain and stiff. An ambulance transported Mr. Claimant to the nearest emergency room for examination. X-rays showed no broken bones, so Mr. Claimant was discharged with instructions to follow up with his primary care doctor.
Mr. Claimant followed up with Dr. Dingus, who referred him for physical therapy. He attended physical therapy for four weeks. Physical therapy proved unhelpful. Mr. Claimant then sought chiropractic treatment for eight weeks, again with limited success.
At present, Mr. Claimant continues to live in considerable pain and discomfort due to your insured’s actions. His medical bills total $24,100.00. I have attached copies of all medical records for your review.
Mr. Claimant’s case is worth $500,000.000 at a minimum in front of a jury. If you would prefer to settle this matter short of litigation, his initial demand is $300,000.00.
I look forward to hearing from you. Thank you.
Overall, this letter got pretty good results, but could have improved with transitions.
Entry Number 2
This firm represents Carl Claimant, who sustained serious injuries as a result of Tanya Tucker’s negligence while operating a tractor-trailer for Bad Mamma Jamma Trucking on May 31, 2017. That day, as Ms. Trucker attempted to change lanes on the interstate, she sideswiped Mr. Claimant’s car. Because of Ms. Trucker’s carelessness, Mr. Claimant sustained permanent injuries and his life will never be the same. Your clients’ liability is indisputable. Please consider this letter as Carl Claimant’s demand to settle the case against your client for $100,000.
After Tanya Trucker’s semi-trailer slammed into Mr. Claimant’s car, he was transported to the hospital by ambulance. At the hospital, Mr. Claimant complained of back and neck pain, and he was diagnosed with soft tissue whiplash injuries. Mr. Claimant was directed to follow up with his primary care physician, and did so. The primary care physician referred Mr. Claimant to physical therapy, which he attended for four weeks. But Mr. Claimant’s back and neck pain continued unabated. Mr. Claimant then treated with a chiropractor for 8 weeks, in the hope of getting back to his normal life after it was turned upside down by Tanya Trucker’s carelessness.
Now, more than a year after the collision Mr. Claimant suffers from neck and back pain on a daily basis. In addition to the continued pain and suffering Mr. Claimant experiences, he also incurred the following damages for medical treatment arising out of the collision:
- Ambulance bill: $600
- Hospital bill: $17,000
- Physical Therapy: $2,500
- Chiropractor: $4,000
- Total $24,100
Despite Mr. Claimant’s tremendous commitment to recovering from his injuries, he still has a long road ahead. He will incur additional medical expenses and continue to suffer pain on a daily basis. Before the accident Mr. Claimant’s life was marked by energy and physical activity; he worked hard to support his family financially and to be a good father and husband. This is not a case where a person was injured but has since recovered. Mr. Claimant continues to feel the effects of the collision every day, both physically and psychologically. In the past year, Mr. Claimant has tried to be the man he once was. But there is no denying the fact that Mr. Claimant’s life has changed in a substantial way—his spirit and body are just not the same.
Your clients are liable to Carl Claimant. Given the serious and life-altering injuries sustained as a result of your clients’ negligence, and the serious impact the collision continues to impose on Mr. Claimant, their exposure in this matter is significant. Please consider this letter Carl Claimant’s demand to settle the case against your clients for $100,000. If this demand is not accepted in thirty (30) days, Mr. Claimant will move forward with litigation and seek an amount in excess of this demand. This is a opportunity to protect your client and resolve all claims against them.
Solid scores all around. This demand letter won the vote in LawyerSmack for the most effective and likely to lead to a positive result for the client.
Entry Number 3
Due to the negligent conduct of your insureds, I am demanding $150,000 for full and final settlement of my client’s claims for bodily injury.
My client Carl Claimant was traveling on the interstate, entirely within his own lane of travel, when your insured’s vehicle entered Mr. Claimant’s lane and struck his vehicle. Not only were Ms. Trucker’s actions negligent but also a jury will find her to be negligent per se for her violation of the Rules of the Road. Ms. Trucker failed to maintain her lane of travel and crashed into Mr. Claimant’s vehicle.
Because of this wreck, Mr. Claimant has permanent injuries he will not recover from. Paramedics took him to the hospital from the crash site. Doctors diagnosed him with cervical and lumbar strains that continue to cause Mr. Claimant daily pain and discomfort. His daily activities are so negatively affected that he can no longer pick up his children or get in the floor to play with them. His wife has remarked that Mr. Claimant isn’t the same man she married.
Since this wreck Mr. Claimant has missed significant time from work while receiving treatment for the injuries your insured caused. Mr. Claimant has attended chiropractic and physical therapy sessions. He has been vigilant in his home exercise program, to the extent his pain allows. But all these efforts only provided temporary relief for his back and neck pain.
Mr. Claimant owes his medical providers more than $20,000 for the treatment your insured has made necessary. While his body will not be made whole by any amount of money, $150,000 is a fair and reasonable settlement demand that will enable us to resolve this matter. Please issue payment within the next fourteen days.
Overall, good scores, but could have had better transitions to flow from one thing to the next.
Entry Number 4
Spoiler: This entry scored the best on BriefCatch. It contains concise, active-voice sentences with plain language. That’s what the software is designed to get lawyers to do, rather than write fluffy, convoluted sentences with passive voice and unnecessarily complicated or arcane words. And BriefCatch does not monitor for swearing, which may have other unintended consequences.
I write on behalf of my client, Carl Claimant, who is a victim of your employee’s negligent actions. In short, all your money belong to us.
On or around May 28, 2017 your ******** employee sideswiped my client in your company trailer tractor, resulting in severe whiplash injuries. While my idiot client opted to partake in pseudo-science treatment involving a shady Russian chiropractor, his injuries are not any less real. This quack chiropractor ended up charging him $4,000 for bogus treatments! Treatments he never would have sought but for your employee’s negligent actions.
And let us not get started on the outrageous medical bills associated with the resulting hospital stay. If your client had just stayed in her **** lane none of this would have happened- but her complete disregard of the commonly accepted rule that slow-*** trailers need to stay out of the left lane has resulted in catastrophic economic loss to my client. She’s a bad dude.
Give us $30,000 in the next ten days and we won’t pursue this in a more formal setting. Or don’t. Your call.
Go **** yourself.
Entry Number 5
I represent Carl Claimant, who was sideswiped by a tractor- driven by Tanya Trucker when she was changing lanes on the interstate. You insure Tucker through her employer, Bad Mamma Jamma Trucking.
Carl was taken to the hospital and diagnosed with whiplash. The bills so far for the hospital visit and transportation are $17,600. Carl then saw another doctor for a long term treatment strategy and was referred to physical therapy. After four weeks and $2,500 she was unable to afford the time off work so she sought alternative care that could fit within her schedule and went for 8 week at an expense of $4,000. The total for known expenses is $24,100.
Sadly, the treatments have not been effective and ongoing pain limits Carl’s daily activities. A long term treatment plan would involve more physical therapy, but he can’t commit without compensation for lost time and wages. A year of physical therapy would cost $32,000 and the lost work time would be $3120.
While we are hopeful this treatment will resolve Carl’s ongoing issues, it is not certain and his work as a paramedic is very physical. We are also requesting $40,000 for a long term disability policy to cover Carl in case he is unable to continue his work after more intense treatment.
This request does not include any request for pain and suffering or quality of life issues, but we reserve the right to include them should you decide to go forward in an adversarial fashion.
Thank you for your attention.
In Conclusion
It can be difficult to find the right tone for a demand letter. Overly aggressive and you’ll turn the audience off. Too passive and you run the risk of not making your point. But regardless of the tone your demand letter takes, it should be clear and direct. You should tell the reader exactly what your client wants and why she’s entitled to it. A demand letter is often the opening of a dialogue between two adverse parties. Be sure yours makes a good first impressions.
