Letters and pleadings give structure and flow to a litigator’s practice. Just as we pursue our clients’ goals through the effective and judicious use of pleadings and motions, so too can we use letters to define and pursue our goals; to communicate those goals to our opposing counsel, clients, and staff; and to measure whether we are attaining them in a timely fashion.
The volume of communications taking place over the phone and via e-mail leaves little time to draft succinctly worded letters. Often we regard them as an impossible luxury. As nice as it would be to document the file, confirm with opposing counsel, and apprise the client of your two phone conversations and four e-mails this morning, there isn’t time to put it down on paper before you leave for court this afternoon. Do you keep the information in your head and try to remember to do a letter later? Do you reluctantly forward the e-mails to the client but wonder whether the casual tone and the pleasantries you are sharing with adverse counsel might seem a tad glib to the client?
In litigation, there is no such thing as a “casual letter.” Every letter that goes out becomes part of the litigation and should be done with care and with strategic considerations in mind. These may include the following:
- When in doubt, write it out.
- Be clear.
- Be relentlessly polite.
- Leave the ball in their court.
- Don’t overstate.
By Daniel I. Small and Robin Page West
ABA General Practice, Solo and Small Firm Division