"So You Got My Letter": A Small Businessman's Guide To Dealing With Obnoxious Letters From Lawyers

Law Practice

Just before leaving the office last night I got a call from Greg, of Greg's Quality Plumbing.  Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners.  Unfortunately one of Greg's employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company.  The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days.  BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back.  From Greg's Quality Plumbing.

And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight.  As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water.  He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg's business assets.  All while trying to set me straight.

In the end, Greg did not set me straight.  What he accomplished was to give me information I will use against him at his deposition and at trial.  He kneecapped the defense attorney his insurance company will retain, an attorney who won't even hear about the dispute between BigState and Greg's Quality Plumbing for several months.  I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him.  All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get "the letter".

  1. When you get a letter from a lawyer, read it. Read it immediately. Read it more than once. Then take a short break, and read it again.  When Greg called me, he told me he "wanted to find out what all of this was about."  If Greg had bothered to read my letter, which detailed exactly what we think the problem was, what we want from Greg, and how to give us what we want, he wouldn't have needed to call me. And he wouldn't have answered a bunch of my questions as I pretended to search my files and databases to get to the bottom of the problem in BigState v. Greg's Quality Plumbing.
  2. Don't be an ostrich. Don't ignore the problem: It won't go away. I've spent most of my career defending clients for insurance companies, so I've ceased being amazed at how people hide their heads in the sand when they get bad news. But they do. They even get a "letter", by certified mail, that says CIVIL SUMMONS with another "letter" titled COMPLAINT attached, and file it away, meaning to get around to responding to it. They violate rule #1, failing to read the Summons which clearly states that they have 30 days to respond, in writing filed with the clerk of court, or something bad will happen to them. After you've read the letter, you need to frame a response. And that response should not come from you.
  3. Don't be an internet hero. You read a lot of things on the internet: you read about the day-to-day life of lesbians in Syria. You read about cute women who are just dying to meet lonely men in New York. And you read stories about laypeople who've beaten lawyers at their own game, with nothing but their wits and the righteousness of their cause. Those sure are nice stories, but are they true? All I can judge from is my own experience: I've never "lost" a case, for the plaintiff or the defendant, in which I faced a layperson on the other side. ("Losing" is a relative term: every time I litigate against laypeople, I feel like a loser because it's like beating up a twelve year old.) I've beaten a neurosurgeon who could have afforded counsel but didn't feel the need because it was a small case, he was right, and doggone it he was smart. I've beaten a hyperlitigious crank who's filed so many pro se lawsuits she's been featured in the Wall Street Journal and Forbes. And I've beaten everyone in between. Because while I'm not all that smart, I'm old. And I've been doing this for a long time. You haven't. Which leads to:
  4. Shut up. Wise advice, that applies to civil matters as much as criminal cases. Don't call the lawyer who sent you "the letter" to "set him straight". You won't solve the problem on the phone.  But you might hang yourself.
  5. Get help. Obviously the person or company on the other side thought the dispute between you was important enough to retain counsel. That's a hint. If you have a business, you probably know a lawyer. Even if you don't, your customers and friends do. Ask around, discreetly (i.e. not blabbing all over town that you're getting sued), for the name of a good lawyer or two. And call the lawyer. Today. If the lawyer doesn't call you back with reasonable promptness (meaning if you call me at 11pm on a Saturday, don't expect a return call before midnight), call another.
  6. Get professional help. Bob who pleads out speeding tickets for $250 a pop at the courthouse may be a good negotiator, but he's probably not the best choice to address your bank's demand for you to cover that Nigerian "certified check" that turned out to be fraudulent. The best source of legal referrals is other lawyers. By all means ask the lawyer whether the problem facing you is in one that's in his field. You'd be happy to have an ophthalmogist stop to help you as you lie bleeding on the side of the road, but once you get to the emergency room you'd want a trauma surgeon. If as Robert Heinlein said, specialization is for insects, that explains why lawyers give many people the creeps.
  7. Don't be penny-wise but pound-foolish. If you're getting a letter from an attorney because you owe sixty dollars at the video store, just pay the bill. If you're getting a million dollar demand because old Ms. Shuffler broke her neck when she slipped in the banana aisle of your store, get out your checkbook. You're going to need a quality defense.  Which leads to:
  8. Are you in good hands? Any claim that could conceivably be covered by your business's insurance policy (you are insured, right?) should be reported to your insurance company. In writing. Immediately. If you don't report a problem to your insurance company because you don't want your rates to increase or you're afraid they'll cancel your policy (as clients have told me when I was asked to get their default judgments set aside), YOU'RE DOING IT WRONG! What do you think you're writing the premium check every month for? If a loss is even arguably covered, your insurer will take over negotiation of the claim, speak for you through an adjuster who's not terrified of lawyers, and hire a lawyer to defend you at its own expense. Don't be Greg of Greg's Quality Plumbing, who should have turned this over to his insurer (in fact that's what I told him to do) and then could have rested easy.
  9. Keep your files. It should go without saying, but when you get a notice from an attorney, or for that matter the government, the first thing you should do is not to throw away all records relating to whatever the problem is. Covering up may turn a humdrum civil case into a criminal case. Instead, turn the file over to your lawyer. Let him worry about what to do with it. And lastly,
  10. Don't get depressed. And don't panic. The sonofabitch who sent you that obnoxious letter may not love you, but plenty of other people do.

Lawyers should feel free to criticize or supplement this list in comments.  Our lay readers are encouraged to tell us stories of how they fought City Hall and The Man on their own, and won.

 

Last 5 posts by Patrick Non-White

29 Comments

26 Comments

  1. Ken  •  Jun 16, 2011 @11:04 am

    Excellent advice throughout. My "shut the hell up" posts apply with equal force to civil situations.

    With respect to point one, I think that the "what's all this about" is not necessarily to be taken as a literal statement that the person has not read your letter. It's more of an opening rhetorical device by a person who is accustomed to dealing with disputes and problems by trying to talk his way out of them. I encounter it with clients all the time — from reasonably reputable businessmen to career con men, they think they can talk their way out of it, but focus on the potential persuasive impact of their words, not on their probative impact in a lawsuit or prosecution against them. (Hence the recent client who, after hiring us, went to the police station to sign for some property, fell victim to a detective saying "Gee, you look like an upstanding citizen, why are you here?" trick, and talked to the detective for two hours.)

    Second: thank God you're back. The natives were getting restless.

  2. Jim Clay  •  Jun 16, 2011 @11:23 am

    Assuming that the neurosurgeon actually was in the right, isn't it an indication that our system is fundamentally FUBAR that having a lawyer matters more than being in the right?

  3. Patrick  •  Jun 16, 2011 @11:42 am

    Well Jim, my client firmly believed that the neurosurgeon was in the wrong. All I did was help him to explain why.

  4. TJIC  •  Jun 16, 2011 @12:08 pm

    Great post.

    Especially loved #10.

    I got my first demand letter 8 or so years back, and it freaked me out for weeks.

    It took a while to realize that letters are worth, approximately, the paper they're written on.

  5. Paul Baxter  •  Jun 16, 2011 @12:15 pm

    My small personal story. I once got "the letter". It wasn't really "the letter", though. It was "a letter" from a customer who was convinced that I had damaged her property through negligence of some sort. The letter contained some vague threats of a vaguely legal nature. Between the letter and my own experience of talking with the customer I knew two things: she was a bit crazy and she was poor.

    Though my situation was a bit different than the plumber's, what I did was call a lawyer who I knew personally and ask him if he would be willing to give me some advice over a dinner that I would pay for. He assured me that he would be happy to since during the day he had to give advice to people he didn't even like for minimal compensation.

    The result was that he advised me to ignore the letter until such time as the other party actually did something. Worked out pretty well for me.

  6. Piper  •  Jun 16, 2011 @12:29 pm

    I'd definitely say that #10 is easier said than done. Especially if you haven't gone through 1-9 yet. Thanks Patrick.

  7. Ken  •  Jun 16, 2011 @12:48 pm

    One of the reasons #10 is so key is that failure to obey #10 generally makes you violate #1-#9.

  8. Charles  •  Jun 16, 2011 @12:58 pm

    Paul Baxter –

    Your attorney advised you to go about your life as normal because you received a letter from a whiny customer. Greg received a letter, on letterhead, from an attorney purporting to represent an insurance company seeking six figures in damages. If you had brought that letter to your friend, he'd have pulled out his Rolodex and referred you to a lawyer prepared to respond formally to that letter.

  9. d-day  •  Jun 16, 2011 @3:50 pm

    I’ve never “lost” a case, for the plaintiff or the defendant, in which I faced a layperson on the other side.

    Me too.

    (“Losing” is a relative term: every time I litigate against laypeople, I feel like a loser because it’s like beating up a twelve year old.)

    SUPER me too. Ugh.

  10. Paul Baxter  •  Jun 17, 2011 @5:45 am

    Charles-
    I'm sure you're right. My only real point was that I sought legal advice when faced with a potential legal problem.

  11. anonymouse  •  Jun 17, 2011 @7:16 am

    Patrick – I am aware of and understand your obligation to diligently serve your client, but despite that knowledge, I am intrigued by my visceral reaction to a post that clearly showed that you were aware that Greg was potentially hanging himself, but took advantage by allowing it to happen and in fact encouraged it by stalling and giving him more time to communicate damaging information.

    My thought was that rather than take advantage of Greg and write this post afterward, could you not have jumped straight to #8 (kudos for being kind enough to tell him that his insurance company should be dealing with this) and hung up as quickly as possible? Even though "the right thing" with respect to your client was to act exactly as you did and extract as much information as possible, it does fit with the idea that "you don't have to be an asshole to practice law, but it helps".

    To be clear, I don't believe that to be the case in general and specifically not for the lawyers who blog here. I also expect that you would have risked discipline for an ethics violation if you didn't act as you did, and from a business perspective, BigState would probably look for new representation if you consistently advised opposing parties to STFU for their own protection.

    BTW, I'm going to assume that you realized posting this could make you look like an asshole, and accordingly I'm impressed that you were willing to do so in the interests of educating your readers.

    Perhaps you could expand on the ethics issue, for the further benefit of laypeople like myself: how does your ethical obligation to your client specifically preclude being a nice guy in this situation?

  12. Patrick  •  Jun 17, 2011 @7:47 am

    anonymous, the answer to each of your questions (all of which distill to "Is it ever acceptable to take advantage of a mark?"), is "It depends."

    As for looking like an asshole, what makes you think I'm not an asshole?

  13. Matt  •  Jun 17, 2011 @8:03 am

    Were I Patrick's client in this situation, I certainly wouldn't want him to tell the other party to shut up for his own benefit. My reaction would be along the lines of "What? You gave _free legal advice_ to someone whose interests in this matter are _antithetical to mine_, while _I_ am the one paying you?"

    Would I have legally-valid cause for a formal complaint on conflict-of-interest grounds? I don't know…I'm not a lawyer. But I'd regard myself as having morally-valid cause for, at the very least, taking all future business elsewhere. And I'd at least ask my _new_ lawyer whether my old one had acted in a way that was legally actionable.

    Lawyers don't have to be assholes. But when they're acting in their official capacities, on behalf of clients, they sometimes have to do things that would, if done on their own behalf, make them seem like assholes. The common rules of civil society require that, on occasion, we cede ground and act against our own immediate best interests. We do this all the time, in minor matters, and hardly even notice, because it's always our own choice to do so. But a lawyer acting on behalf of a client doesn't have the same right, because the interest he'd be giving up isn't rightfully his to give.

    Just like when your accountant gives 10% of his own money to charity, it's generosity, while if he gave 10% of your money to charity without you specifically ordering him to, it'd be embezzlement.

    But our instincts are still wired to hear a story like this and think "asshole". Which is another of the ever-growing list of reasons I'm glad I'm not a lawyer.

  14. anonymouse  •  Jun 17, 2011 @8:27 am

    Patrick – Sorry if I've offended you by suggesting that you're not an asshole. ;-)

    Why don't I think so? Probably just because it's human nature to give the benefit of the doubt to people you agree with, and in general I share the opinions in your posts and comments.

    Mostly, though, because a full-bore asshole wouldn't take the time to write a longish blog post giving free advice to potential marks.

  15. anonymouse  •  Jun 17, 2011 @8:28 am

    Matt – I am on board with the premise that I wouldn't want my lawyer helping the other side, but I remain curious as to how much of the decision is this commercial consideration (people won't hire me if I do this) and how much is legal obligation. That's brought into sharper contrast by Patrick's post today regarding
    Kirsten Powers throwing Anthony Weiner to the lions: while Greg isn't a friend, Patrick does acknowledge that he seemed to be a nice guy and that he (almost) felt sorry for him.

  16. Scott Jacobs  •  Jun 17, 2011 @9:55 pm

    Probably just because it’s human nature to give the benefit of the doubt to people you agree with

    Actually, that sounds like how I judge whether someone IS an asshole – agreeing with me tends to win you points towards being one.

    I hardly consider it a bad thing, though.

  17. Dody  •  Jun 22, 2011 @9:36 pm

    Oh dear. I'm afraid I will offend you. I love lawyers. They are the best type of friends to have. I won't say I have sued and won a lot of people. No, that would be false. I will say I have successfully defended myself in a couple cases, until…here's the real clincher, I could afford an attorney.

    The only case I have successfully won on my own involved an apartment. I was being evicted. I used every bit of brain power I had to find out what I could do to get more time…so I had money to move into another apartment. I don't know how I did it… I am not that bright honestly. May be my landlord's attorney was having a bad day. Maybe he felt sorry for me. Anyway, I ended up with 3 months rent free. That was great…

  18. mer  •  Jun 23, 2011 @4:49 am

    "As for looking like an asshole, what makes you think I’m not an asshole?"
    As a non lawyer, I have to admit that my first reaction was "You're a lawyer, of course you're an asshole. Just how big of one depends on your specialty".

    :)

  19. JLR  •  Jun 23, 2011 @7:01 am

    Great post. I don't think you had any obligation to keep Greg from hanging himself. If you get this kind of letter from a lawyer, and your reaction is to call the lawyer to see "what this is all about," i.e., make the whole thing go away through your powers of persuasion or intimidation, then you deserve what you get. This doesn't sound like a guy who was calling because he was freaked out and hoping it was not as bad as the letter made it sound or someone of low intelligence who was truly confused about what was going on.

    I've dealt with pro se litigants who just didn't have money and couldn't find a lawyer, and I've dealt with some who are just blowhards who think they know more than any lawyer out there. There are some pro se litigants you should feel bad for, but others not so much.

  20. RJ  •  Jun 23, 2011 @11:17 am

    I'd add, if you receive a summons and complaint, answer it immediately, preferrably with counterclaims and/or crossclaims. Many attorneys are very experienced at filing default judgments but soil themselves when they find the least little opposition. This is particularly true of debt collection mills which drop a case if the defendant files an answer and counterclaim.

    If your opponent fires a shot accross your bow, it is a better tactic to return fire and show him that you too, are armed and dangerous.

    Greg, in the case of the plumber, would have been much better off to get a hired gun to deal with plaintiff's hired gun. Instead he went into a gunfight with bare fists.

  21. Frank N  •  Jun 23, 2011 @1:55 pm

    Ethical codes and canons aside, as one in the position of having more legal knowledge and experience, wouldn't it have been the ethical action to advise the plumber in clear, easy to understand and repeated statements that you are the attorney who has engaged to be this plumber's adversary and that everything he says will be noted and possibly used against him in the pending litigation?
    It certainly seems a bit tawdry for the "expert" to draw along the amateur in hopes of extracting a little more advantage.

  22. Patrick  •  Jun 23, 2011 @2:49 pm

    Frank, this was not an episode of One Adam Fucking 12. An attorney is not obliged to give Miranda warnings. That's for cops.

    Believe me, my letter to Greg did state in clear, easy to understand and repeated statements that I am the attorney engaged to be his adversary in forthcoming litigation.

    Even clearer, the letter said I'm going to sue him for ONE GODZILLION DOLLARS! It was a threatening letter.

    Since you're so naive, I'll give you a visual image:

    Suppose my letter was a dog. If my letter was a dog, it would be a huge dog named Thor, bearing a spiked collar. Thor would be at the end of a chain, teeth bared, growling in a low tone alternating with furious barks, drool flying all over the place. Behind Thor, there would be a sign reading: NO TRESPASSING! and another sign reading: BEWARE OF DOG!

    Would you hold out your hand to Thor, so that he could sniff it and make friends?

  23. Ken  •  Jun 23, 2011 @5:57 pm

    I think there are times when a lawyer has an ethical and/or moral obligation to clarify his relationship to the person he is addressing. For instance, I am always very careful to do so when I am representing a company and communicating with an employee, subsidiary, or agent of the company — they need to understand that I represent the company, not them.

    But I don't think a lawyer is ethically or morally obligated to talk someone out of doing something foolish that hurts them and helps the lawyer's client, so long as the lawyer doesn't mislead. When people who get a scary lawyer letter call to talk, it's not because they are confused about the lawyer's role — it's because they are trying to talk their way out.

  24. Jack  •  Jun 23, 2011 @7:43 pm

    Right, Ken. If I hire a lawyer, he has an ethical duty to me. Not. To. My. Adversary. Sorry Anonymous, you're just plain wrong.

  25. Ken  •  Jun 23, 2011 @7:56 pm

    Well, Jack, many codes do indicate that an attorney has some basic duties to third parties — but those generally include not abusing them, rather than helping them.

  26. WhangoTango  •  Jun 24, 2011 @2:14 pm

    Anonymouse, if you're still confused, just remember that a chief tenet of the attorney's philosophy is that he isn't bringing his own opinion or viewpoint into this; he's there solely as a technician, someone whose duty is to the machinery of the law, whose role in all of this is to (as Patrick described earlier) make his client's arguments in a legally-valid manner that yields the client's desired result.

    In other words, he's just following orders.

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