How do you respond?
Have you ever received a letter of demand from a lawyer? It may just be that the letter itself was a nasty surprise, rather than the content. You might have received a demand, or a warning, or a request for information.
Lawyers write letters like this to each other on behalf of their client all of the time. Occasionally, as a lawyer you get a letter that is a really nasty surprise. Something unexpected, that you think has potentially dire consequences if you don’t get the response right. I had a colleague who used to call those kind of letters the “oh sh!t” letters, and the habit stuck. I know that for a lot of people, any letter from a lawyer would be an “oh sh!t” letter.
So what do you do?
Firstly, don’t panic! Famous words immortalised on the cover of Douglas Adams’ Hitchhikers Guide to the Galaxy… but we digress…
Now, once you get over the panic, you then have the chance to work out what the letter is really about. I was asked to comment on a legal letter just this week. The letter was from a work injuries regulator to a health service provider – who did panic.
Reading the letter through, it was simply a request for a response to a complaint received from the person who was being treated. The regulator was not making any accusations (which is what the health care provider thought the letter was about) and was not asking for justification. It was simply a request for comment. Now, without more context, the health provider could simply comment that the complaint of the worker was untrue, and the health care provider stood by their report. Right now we are waiting to find out if anything more is actually expected.
So you see, in that example, there really was not a lot to get concerned about. The lesson is to read the letter carefully and make sure you understand both the content, and the context, before even considering a response.
Make sure you understand the content and the context.
Lawyers will often put timeframes for a response just to keep things moving for their clients. Not every end date is a ‘drop dead’ date. There are legal time frames that you do need to comply with promptly – particularly in court matters. If you do get a court notice or letter about a court matter, then the dates that you need to respond by should be very clearly set out.
If you get a letter that needs a response within a timeframe set out in legislation, then that law should be referred to, usually with a reference to the section of the law that applies. If no law is referred to, then the time limit might just be set by the lawyer. Don’t be afraid to ask!
Find out whether your timeframe for a response has been set by the lawyer, or is according to a law.
It is rare that a timeframe cannot be extended. If you need more time to put together a response that you are happy with, then ask for it!
What lawyers do when it is clear that the timeframe has been set by the other lawyer and not by law, is to go back and say “I will respond once I have recieved instructions from my client” without agreeing to the original timeframe.
The next thing to do is check the facts. If there are accusations in the letter, are they true? I’ve seen a number of letters this year written to people accusing them of breach of trademark and demanding that the person receiving the letter immediately stop using the trademark and hand over materials etc.
After checking the trademark register, I don’t think any of the claims were true. Each was close, but none of the recipients were using a trademark that they were alleged to have misused.
Check your facts.
And lastly, get help! A lot of people are worried about spending money and think they can handle things without having to get a lawyer involved. Sometimes that is true. At other times spending the money to get early advice, particularly strategic legal advice, can save you heaps in the long run.
Think about the worst case scenario, the time, the cost and the stress involved in running a dispute for two years, against spending some money upfront to help you develop a strategy to resolve your matter in a couple of months instead. It really is worth it.