It is an illusion to believe that results can be achieved by using a free letter of demand template. Complexities exist that a simple cease and desist letter does not usually deal with.
Templates are useful, the more the better. However, at least in Sydney all need to be heavily customised to convince recipients to respond as desired. Thirty years ago people respected a “solicitor’s letter”. Today they need to be convinced by one.
A writer of a demand letter is in the behaviour modification business. It requires cunning and craft to convince people and businesses to change their position or behaviour on demand.
Behaviours are unlikely to change on receipt of a generic template-style letter saying “Stop”, “Give Way” or “Go Back Your Going the Wrong Way”.
Template demand letters use generic statements. Customisation makes them substantiated and convincing.
Emotions and psychology
Before discussing conventional and useful hints for drafting, upfront let’s emphasise the rarely noted but helpful role of emotions and psychology.
You and your lawyer should develop the emotional intelligence of a demand letter by getting inside the mind of the targeted recipient of the letter.
Study the target and deduce what you can from the target’s size, level of wealth, location, cultural background, values, decision making process, use of lawyers, and trading history.
Assess and act on what might frighten the recipient into moving in the right direction for you. Seek to move recipients by applying the compound impact of emotions and rationality. Do this professionally and ethically.
Call, letter, meeting or litigation?
Sometimes a phone call is best. Sometimes a mediation or informal meeting gets results. Sometimes a letter is best. Litigation is inevitable in some cases.
In each case it is critical to be properly prepared for negotiations, cutting a deal, or taking further action to a conclusion if needed.
In the case of a letter it works better if there is a surprise attack with a clear deadline. Query if this is the best time to strike. Consider in detail how to deliver the letter. There may be better results writing to more than one address. It may be best to have an open demand letter and a without prejudice separate letter. It may be logical to separate a civil law claim from a “please explain” letter about possible criminal law breaches. Customisation is the key.
For a demand letter the aim is to make the recipient conclude that it would be fighting a lost cause. The recipient should perceive that a greater force and enforcer is on the trail monitoring every movement. In this way the demand letter becomes like an armed police officer with a loud speaker directing the recipient to stop, step away from the vehicle, and put hands on head.
Legal hints for demand letters
Let’s now turn to conventional legal hints for demand letters. To achieve success, at a minimum:
- Conduct search work to discover or confirm the identity of the targeted recipient. The type of required name searches differ, eg for a trade mark, business name, trust, or company name. It may be possible or appropriate to write to more than one recipient, eg a company and each of its directors, threatening potential personal action.
- Succinctly state the facts, the claimant’s factual situation and that of the recipient. The need to gather comprehensive, dated and evidence-supported facts cannot be over-emphasised.
- Develop a precise statement of the legal implications of the facts, noting a claimant’s legal rights and the lack of them for the recipient, in addition to any obligations that apply. These legal implications are what law calls the “causes of action”. They are foundational requirements for starting a court action. They are wording for a statement of claim. Making them clear will give a clear signal to a lawyer acting for the recipient that you’ve done your homework and are ready for serious legal business. The causes of action lead to identification in the letter of legal remedies which may be imposed on the recipient for failure to comply with the demands. Civil legal remedies include an injunction, damages, account of profits or declaration. Criminal law remedies may also be available (eg fines or jail sentences). Civil wrongs in intellectual property and business law are being increasingly criminalised as a trend in legislation. Copyright piracy, trade practices law for cartels and gross worker safety breaches may all potentially found police or criminal law action against individuals and company directors.
- Craft written undertakings for the recipient to sign. For example, give the recipient the opportunity to agree to pay X dollars by Y date to avoid your commencement of court action, to supply documentation or source code, or to transfer the registration for an infringing domain name.
With this level of verifiable details the pressure of the demand letter is more likely to convince a recipient to select the option to now pay up, deliver up, drop its argument, or take other action you demand.
Benefits of demand letters
An effective demand letter has many benefits:
- It secures timely action or agreement by the recipient.
- It achieves results with diplomacy. Diplomacy is usually faster and more economical than litigation. Litigation is often conducted as if it was a type of civilised war, civilised partly due to the array of applicable court and ethical rules which govern the participants and their lawyers and add to the formality, lawyer and court accountability and hence legal costs.
- Even if you end up in litigation, a good pre-war letter of demand ticks away reminding all parties and their representatives about why the court war began in the first place. It can therefore help frame a peace treaty, AKA Short Minutes of Order or Deed of Settlement.
An effective letter of demand helps the recipient convince itself – in a timely fashion – that completion, settlement or compromise is a better option than delayed, risky and costly court-imposed resolutions.