If you want to claim damages in a negligence action or a contract dispute, the letter before action will be your first step in asserting your rights. The breach of contract letter before action, or demand letter, will give the other party or parties notice that you are intending to make a claim.
If you are lucky, you can resolve the conflict with your letter. This is one area where calling an attorney or filing a lawsuit right away is probably a waste of resources, especially since the judge hearing a civil dispute will first ask whether you made any attempts to settle the matter without involving judicial resources. You need to be polite but let the other party know that you don’t intend to let the matter go, and explain the nature of your complaint. There is also an important point that if you are needlessly aggressive, the other party may only become defensive.
When composing your letter, you should explain the issues in the most neutral way, so that you don’t open yourself to a negative outcome. Here are some suggestions on how to write the letter and how to go through with the process of preparing for potential litigation.
What Are The Parts In A Letter Before Action?
Here are the various sections that a letter before action usually contains:
You need to set out how you came to be involved in the transaction at dispute. It is important to explain the background in a way that outside parties will be able to understand, as you will present this letter to the Court if you cannot resolve the issues in any other way.
The Circumstances That Led To This Particular Claim
This is where you give details about what happened in this instance. You shouldn’t attempt to write about other instances unless they are relevant in some way. Many people who are not accustomed to dealing with the courts like to put in extra complaints which seem relevant because they seem to show a pattern of bad conduct, but you need to be more concise and focus on the particular issue at hand. This is where you can explain exactly what the person did wrong in this instance, such as whether there was a breach of contract for non-payment or a lapse in a duty of care owed. You must be able to prove that you are owed what you are asking for, and if you have figured up the damages, you can list the amounts here.
What You Want
In some cases, the answer is very specific. For instance, if you were supposed to receive a certain payment for work you performed, you may want only a certain amount of money. You may want the other party to return an item you sent but that was never paid for, or you may be demanding another legal remedy, such as the enforcement of a service the other party agreed to. Even if you are willing to compromise on the eventual remedy, start with the maximum that you believe you are owed. You are not in a position of strength if you immediately concede part of your claim in an attempt to be nice.
The Time Frame You Are Allowing For The Response
There are always timelines when it comes to dealing with civil issues. You only have a certain amount of time where you are legally allowed to file a lawsuit, so you need to keep the statute of limitations in mind. In Arizona, you normally have up to six years for a contract claim. However, if you have incurred damages, receiving your compensation can be a big part of moving forward. Normally you would give someone at least two weeks to answer a letter before action, but you don’t want to let them drag it out.
The Consequences Of Failing To Comply
This is tricky because it is important to be honest. If you are not intending to do a specific action, do not make the threat idly. If you are serious about following through, let them know that you are going to file a lawsuit if you cannot get satisfaction. Make sure to let them know that if you win, they will be responsible for the legal fees you incur with filing, and possibly with attorney fees.
You Don’t Need To Be Antagonistic
This is just an important reminder that being antagonistic will not help with your negotiations. Even some lawyers do this, but it is a poor way to operate. You have a right to receive compensation if someone has broken the terms of a contract, and you can remind yourself to be firm and stand up for yourself. When they see that you are serious and that you know what you’re talking about, they are more likely to have a conversation with you about how to resolve your conflict.
The Size Of Your Claim Matters
Sometimes you are the victim in a dispute but the claim is so small or so large that the rules are different. A claim which is too small is probably not worth pursuing, as you will spend needless hours pursuing a result that won’t help you very much. When it’s not worth pursuing an action, you might want to choose not to deal with the offending party again.
If the claim is very large, then you may want to consider whether you want to deal with it on your own. Even if you choose to write the letter before action first, you are probably better off seeking the advice of an attorney to make sure you aren’t setting yourself up for failure or for further losses down the road. There are also special rules, such as for public entities, where the notice of claim must meet certain specifications.
Many attorneys offer a free one-hour consultation, so you won’t lose anything by asking for help. Never worry about looking like you don’t know very much because it only looks good if you are new to dealing with courtrooms.