Just like it sounds, a demand letter is a letter that makes a demand of the recipient. People send them to seek compensation for loss or injury, or to compel or restrict an activity the sender believes violates a law or agreement.
Some of the ways demand letters are used include:
Although you can sue someone without first sending a demand letter, most of the time people send a demand letter in hopes that the recipient will comply and a lawsuit won't be necessary. While these letters are often written in blustery language that threatens a lawsuit, demand letters routinely accomplish their purpose, motivating the parties to resolve the matter without going to court.
Demand letters usually include a description of the dispute, the names of the parties involved and their relationship to the dispute, a statement about the laws or agreements the sender claims have been violated, and the action the sender wants the recipient to take, along with a timeframe for doing so.
Don't assume that just because a demand letter looks and sounds official, its assertions have merit, or that the sender will prevail in court or mediation. The claims made in the letter are just that: claims. You and the other party have the power to arrive at a mutually agreeable resolution that doesn't parrot the letter, or failing that, a mediator can suggest a resolution. As a last resort, a judge can resolve the dispute.
You should carefully weigh the claim and decide whether to comply with the demand, contest it, or negotiate a different resolution. Your analysis should consider the facts, the applicable law, the risks to you if the case does go to court, and your chances of winning a lawsuit.
Carefully review the facts that the other party has provided. Suppose you receive a demand letter from a handyman you hired to install four shelves in your store. You agreed to pay $200 upon completion of the work and paid a $50 deposit before the work began. But the handyman left you high and dry after installing only two of the four shelves.
You decide that the $50 deposit is sufficient payment because the work wasn't completed and the job looks half-finished, but the handyman is demanding you pay the balance of $150. Before you decide to contest the demand, you should:
While going to court will ideally result in winning (paying only $50), even a win is not without risks. The possibility of negative, collateral consequences is what attorneys call "assessing your exposure." For example, even if you win, you'll spend time and money preparing for court at the expense of tending to your business, and your reputation might suffer. If you lose, in addition to possibly paying the winner's court fees and attorney's fees, a court judgment might include additional penalties (along with damage to your reputation) that would total considerably more than the amount the claimant is demanding.
The store owner in the example above might want to fight the demand, feeling that the handyman is taking unfair advantage by insisting on the full payment, but paying an additional $50 (or even the full balance of $150 if there was no service agreement) might be a lot cheaper than the hundreds, or even thousands, of dollars a court judgment would cost.
Just because you believe the action you took (or didn't take) is justified, do not allow your emotions to dictate your response to a demand letter. Instead, carefully assess the evidence to determine your chances of winning your case in court. If the evidence doesn't back up your position, consider giving in to the demand or negotiating a settlement. Seasoned businesspeople call such decisions "the cost of doing business," and they feel no shame in cutting their losses.
No matter the position you take (or how legitimate you believe the claim to be), respond in writing, preferably by postal mail, and obtain delivery confirmation. If the matter ends up in court, you'll want a paper trail that shows your good faith efforts to address the problem. Using email is risky; recipients can claim that they never received your reply, and unless you have used a receipt-generating tool (which the recipient might refuse), you'll have a hard time proving that you replied.
It's never wise to ignore a demand letter, no matter how questionable you believe the claim to be. A judge can interpret your failure to respond as an admission of fault, which would usually favor the other party in the dispute.
Be aware that once you've received a demand letter, you won't be able to claim ignorance of the problem. You are also obligated to preserve any records or other evidence that pertains to the dispute.
A response that comes from an attorney will generally be taken more seriously than one you write yourself. Even if you are hoping to settle the matter without going to court, you should consider hiring an attorney and paying a one-time fee for the sole purpose of responding to the letter (a less expensive option than retaining an attorney for the duration of the proceedings).
A response drafted by an attorney adds not only an air of legitimacy to your position, it can also bolster your position by ensuring that all the relevant legal arguments are included.
If you do handle the response yourself, keep it civil and factual, even when you believe the demand is completely without merit, and send it by the deadline requested.
Some states allow litigants to use the response to a demand letter as evidence in trials or depositions, so a threatening or smart-alecky response can work against you at trial. A clear and complete recitation of your position might also convince the sender of the demand letter to drop the matter or negotiate a settlement.