In most personal injury (PI) cases, settlement negotiations begin with a demand letter. A demand letter is simply a written request to settle your personal injury claim before you file a lawsuit. The demand letter starts a discussion between you and your opponent—usually but not always an insurance company—by explaining:
This article serves two purposes. First, it explains why a demand letter is important. Second, it describes what you need to include in your personal injury demand letter. We'll close with a few points to keep in mind throughout the process. (One of these points has to do with the special procedures you must follow if you want to sue the government.)
A well-written personal injury demand letter does three things:
Lawsuits are expensive, time consuming, and stressful. The ultimate goal of any demand letter is to prompt settlement without a lawsuit. Even if earlier conversations with your opponent have gone nowhere, laying out the facts, your injuries, and the reasons why the other side is responsible may jump start settlement negotiations. In short, your chances of getting paid are likely to increase when you make your case in writing.
Keep in mind that in most cases, your demand letter is going to an insurance company adjuster. These are people who are responsible for dozens, even hundreds, of personal injury claims. A well-written demand letter backed up by solid evidence sends the insurance company a message: You know what you're doing and you won't just go away. If the adjuster takes you and your case seriously, that, too, increases the odds of a settlement.
Writing a demand letter to an insurance company is a process, one that takes time and effort. Before you begin writing, you'll need to gather the evidence to prove your case. In an auto accident case, for example, part of your preparation would be getting the police report and, if possible, speaking to the reporting officer.
You'll need written proof of any wages and benefits from your employer that you've lost as a result of your injuries. You'll have to contact doctors' offices, hospitals, pharmacies, and other providers to gather medical records and bills. You must track down witnesses and get statements.
Taking these sorts of steps helps you think through every aspect of your case, including the facts, the applicable law, and the evidence you'll need to prove your claim. You'll be better prepared to go to court if you don't settle and have to file a lawsuit.
Before we cover what you should include in your demand letter, let's talk about style and tone. You're writing this demand letter about something bad that happened to you. It's natural to feel strong emotions. But as a rule, you want to keep your emotions out of a personal injury demand letter.
To the insurance company, yours is just another case among thousands. The adjuster who will read your demand letter wants facts—what happened, how it happened, how you were hurt, and your damages. Keep your demand letter business-like and factual. If your case doesn't settle, you'll have chances to tell your story in more detail later.
A good personal injury demand letter will discuss these four things:
This is the "who, what, when, and where" portion of your demand letter. Start by describing who was involved.
Once you've detailed who was involved, describe what happened and when and where it happened.
Your demand letter should list all of the injuries you suffered, and the damages that resulted from those injuries. Your injuries are all of the physical and emotional harms you experienced. Damages are simply an expression of those injuries in dollars and cents. They generally fall into two categories:
In most personal injury cases, you will want to collect both economic and noneconomic damages. We'll show you how to do that below. Before turning to damages, though, you need to describe your injuries.
Now that you've summarized your economic damages, you need to quantify your noneconomic damages. This can be tough for things like pain and suffering. How do you put a value on these noneconomic losses?
There's no hard and fast rule. Lawyers often use some multiple of medical expenses. It's common to use a multiple of two or three times medical expenses to calculate noneconomic damages.
Let's return to our hypothetical case. Mom's medical expenses were $4,000, and each of the children had medical expenses of $1,000. We might calculate damages for pain and suffering and loss of enjoyment of life at three times those amounts: $12,000 for Mom and $3,000 for each child.
The key is to be reasonable. If your economic damages are $6,000 and you demand millions for pain and suffering, your opponent won't take you—or your demand—seriously. Don't blow your credibility by being greedy. And be aware that some states cap noneconomic damages, which might limit your available recovery. You'll want to check your state law for this kind of damage cap.
Your demand letter should explain why the other side is legally responsible for your injuries and damages. In most personal injury cases, establishing responsibility means showing that:
Finally, you should total all of your damages and demand that amount to settle. There aren't any magic words you need to use; simply demand settlement for the amount you've calculated.
Finally, you should include a deadline for your opponent to act. Barring any concern over the applicable statute of limitations—which you must check—allowing your opponent 30 days to respond is common.
Again, be reasonable. The insurance company may need more time to investigate and respond. The key is to keep things moving in the right direction—toward settlement.
Now you know how to compose your demand letter, but don't send it just yet. Make sure to consider the following issues.
You should send your demand letter by certified mail and request a return receipt so you have proof of delivery. You can also send it by email if you have the insurance adjuster's email address.
Barring any concern over the statute of limitations, wait to send a demand until your doctor tells you that you've reached maximum medical improvement (MMI). That way, you'll know what your total damages are likely to be. If your treatment extends for a long period of time or is recurring, then you might need to send the demand letter before you reach MMI to avoid statute-of-limitation problems.
So far, we've assumed your opponent is represented by an insurance company, in which case you should send the letter to the adjuster who is assigned to the claim. If your opponent has a lawyer, you should send the letter to the lawyer. (Importantly, though, if you're dealing with a lawyer, you should try to get one of your own to handle the demand letter and everything else about your case.)
If your opponent hasn't told you about any lawyer or insurance company, send the demand letter directly to your opponent.
If your case doesn't settle and you need to file a lawsuit in court, you'll probably want to ask for more than you did in your demand letter.
On the chance that your case is one of the rare ones that goes all the way to trial, you'll want to make sure that evidence of your settlement demand doesn't get to the jury. To do that, you must make clear that your demand letter is an attempt to settle. Something like this will do: "This letter is an attempt to settle the case without the need for a lawsuit. My settlement demand will not be admissible into evidence if a trial becomes necessary."
Remember that your demand letter is, among other things, an attempt to send a message: You know what you're doing.
You want the demand letter to help establish your credibility. Rambling, overwrought prose or an astronomical demand will do far more harm than good. You're playing on the insurance company's turf, and to the insurer, this is just a business transaction. The time to argue your case will come later, if you need to file suit.
If you're pursuing a claim against the government (federal, state, or local), you'll almost certainly be required to follow special procedures. For example, if you want to sue the federal government, you'll probably have to first file an "administrative claim" against the government agency you think caused your injuries. If you want to sue a state or local government, you'll need to first send the government what's often called a "notice of claim" that provides specific information about your claim and your injuries.
Importantly, a demand letter likely won't count as an administrative claim or a notice of claim. If you're unsure about claim notice requirements, you should consult with an attorney who is familiar with suits against the government. Failure to follow the required procedures will almost certainly doom your case.
Sending a demand letter doesn't guarantee that your case will settle. If settlement fails and you want to pursue your case, you'll need to file suit, in the proper court, before the statute of limitations runs out.
Can you properly file a lawsuit on your own? Yes. Should you do it on your own? Unless you plan to file in small claims court (because you're not asking enough for your case to be in regular court), probably not. Complex rules of procedure and evidence govern court proceedings and can quickly overwhelm unrepresented parties.
If your case isn't complicated, meaning the facts are simple and uncontested and there are no thorny legal issues, you can probably handle settlement through a demand letter on your own. You can find sample demand letters for different kinds of cases here.
If, on the other hand, your case has complicated facts, liability or causation issues, or damages problems, or if you need to file a lawsuit, you should give serious thought to hiring a lawyer to represent you. This is especially true if your injuries are serious and complex. You're going to need medical testimony to prove those injuries and damages and you'll want an experienced lawyer to help. Once you file suit, you'll find yourself in unfamiliar territory, and you won't get any special treatment because you're without a lawyer.
Your opponent (and the court) will take you more seriously if you're represented by counsel. You can bet that the insurance company will be represented by a lawyer. You should be, too.