In a defamation case, just like any other personal injury case, the purpose of the demand letter is to inform the defendant that, although you are ready to file a lawsuit, you are also open to negotiating a fair and reasonable settlement beforehand, to save both parties time and money.
There are a number of reasons to settle your defamation case. Lawsuits can be expensive, the outcomes unpredictable, and their resolution can take a very long time. Though these reasons are common to litigation in general, they especially apply to defamation cases because defamation is such a fact-based cause of action.
In this article, we'll discuss how to write a persuasive demand letter for your defamation case. If you'd like to see some examples of demand letters to get an idea of what they look like, see our sample demand letters page.
A demand letter should begin with an introduction, then provide a discussion of the relevant facts, articulate the legal claims raised, detail the damages suffered, and make the actual demand.
The introduction portion should state who you are and why you are writing the demand letter. Next, if defamation is not your only cause of action, list the other causes of action you intend to raise. Then, inform the reader that your letter is confidential and is for purposes of settlement only and subject to all applicable privileges and exclusions. Conclude by indicating that you are open to discuss settlement, if the terms are fair and reasonable.
The factual portion of your demand letter may be the longest portion. This is because defamation is a very fact-specific cause of action. Generally, the fact portion will be written in chronological order. If, however, there are multiple defamatory statements, it might be helpful to organize the fact portion chronologically according to each statement.
Some attorneys caution that the factual portion should be brief because they worry about giving too much information to the other side. While it is true that you do not want to give away any information that the other side cannot discover on his or her own, chances are, the defense has access to most of the information you provide, or will be able to obtain it through discovery. Furthermore, the defense will not be able to decide whether or not to engage in settlement negotiations if they don't have enough facts to make a reasoned decision.
The next portion of your demand letter is the liability section. Here, you will briefly discuss the applicable law when it comes to proving harm from defamation, and how it applies to the facts of your case. Be careful not to go into too much detail with your rule statements. You do not want to come across as trying to teach the other side the law, or help them build their own case.
The next portion of the demand letter will lay out the damages suffered as a result of the defamation. Calculating damages depends heavily on the facts of your particular case and can be very complicated. In fact, if the damages are great and/or complicated, you might want to consult with an expert.
Begin by calculating the actual damages. This includes the losses you suffered with respect to property, business, trade, profession or occupation, including any expenses you had to pay as a result of the defamatory statements. Since this is a tort cause of action, emotional distress damages are also compensable.
If applicable, discuss the availability of presumed (or assumed) damages and punitive damages. Punitive damages are damages meant to punish the defendant for particularly egregious conduct. Punitive damages can potentially increase your award by a factor of 3 or 4. Finally, if attorney's fees are authorized in your state, you should mention that in your letter as well.
Next, make your monetary demand. First, add up the damages that you have listed in the above section. Then, discount a reasonable amount based on the amount of time, costs, and risk that you will not have to face by settling early. Be cautious that you do not choose a number that is so high that the defense counsel will simply ignore your letter. At the same time, do not go so low so as to undervalue your case or signal to the defense counsel that you are simply chasing a quick settlement. For more tips on making your demand, see How Much Should You Ask For in Your Demand Letter?
The final section of your demand letter is the conclusion. This section should restate your desire to negotiate a fair and reasonable settlement, but also indicate that you are willing and able to litigate the case if need be. Also, give the defendant a specific date by which he or she needs to respond, usually two or three weeks, otherwise you will go forward with filing a defamation lawsuit in court.
You are not required to hire a lawyer for your defamation claim, but without legal representation, you'll have a much harder time getting the opposing party to take you seriously. This is especially true when the damages you are claiming are significant - beyond the limits of small claims court. Defamation cases are won or lost on the strength of the evidence, and an attorney will be very helpful when it comes to getting all the right evidence together.