Crafting an auto accident demand letter – Part I

Preparing your demand letter is a process that begins the first time you learn the facts of a case. Let’s talk specifically about what goes into a good demand letter.

Elements of good car accident Demand Letter:

  1. Accident Overview
  2. Theory of Liability + Proof of Liability
  3. Description of Damages + Proof of Damages
  4. Demand

This post discusses the first element: accident overview.

But first, a caveat: Don’t use this as your opportunity to play a little game of Hide the Ball.

If you walk away from this conversation (or whatever you want to call this) having learned only one thing, let it be this: Sharing information with the insurance company almost always helps your case.

Some bizarre plaintiffs’ lawyers decide that their strategy will be to treat the insurance claims process like a game of poker: They hold their hand close to their vest, put on a poker face, and tell nothing.

Perhaps this made sense back in the day when the ultimate goal was to get to trial (was this ever the goal back in the day?).

Maybe. But who knows?

Those people don’t practice law anymore.

Or, maybe this was a sound approach before litigation discovery was invented.

Or perhaps it was a viable tactic before the advent of sophisticated technology like universal claims databases and the Interwebs.  Maybe.

But what is clear is that today, this approach makes no sense.  Zero.  Less than zero.

It makes even less sense when you stop and realize that the real goal in most auto accident cases is usually settlement: a quick, clean, easy, honest, settlement.  If this is in fact the goal, it is most easily accomplished by giving the insurance company everything it needs (or thinks it needs) to evaluate the claim.

When you hide information, you d – r – a – g –  out your claim.

Moving on to your the writing of your demand letter. Do yourself a favor—save the drama and antics (dramantics) for the courtroom.

Your settlement demand is obviously not admissible, so no jury will ever see it.

What we should be dealing with here is a straightforward, professional document. One that lays out, as simply as possible, the facts of the accident, highlights the strengths of your plaintiff’s case and personal history, acknowledges –to the extent applicable–her weaknesses, sets out her medical claims and past and (if applicable) expected future treatment and wraps it all up by plainly stating how much it will take to make this go away today.

It probably goes without saying that the more money you’re asking for, the longer more support your letter should provide – and the greater the volume of accompanying documents.

1. Accident overview

Above all, begin by remembering who you are talking to. First rule of writing: consider your audience.

Whether you send your demand letter to the adjuster or an attorney — whether you send it before or after you file suit, your letter will ultimately be redirected to an insurance attorney.

In other words, your final recipient is (a) a lawyer (b) who deals with car wreck, after car wreck… after car wreck.

In laying out the accident, do not feel compelled to launch into painstaking detail that the car was blue, well, an off-blue really, and it had been given to the plaintiff on his 32nd birthday, by his wife – well his wife at the time, now his ex-wife – and due to the accident caused by your insured hurtling into him at an extremely high rate of speed the defendant’s car caused a scratch – a deep one – on the right side, in the front, right by the right front fender, and the scratch was not only deep but long, about the length of the distance from your fingertips to your elbow (assuming you are shorter than 5’2” but no shorter than 4’11”) but if you happen to be taller than 5’2” then….

Look. It was a car accident.

Unless either party was driving the batmobile at the time of the collision, there are only so many possible ways the accident could have occurred.

Either your client was rear-ended, caught between two cars, domino-style, or your client was hit from some other direction.  Two options: either your client was stopped or moving at the time.  The point here is describe the accident briefly. Explain who was at fault and why. Attach a police report and move on.

–         Plaintiff’s rate of speed
–         Defendant’s Mph.
–         Citations issued, and to the extent known, how they were resolved.

On that last point, remember that citations generally are not admissible evidence.  You’ll recall that the only time these are admissible as proof in Georgia is when the defendant pled guilty. 

In other words, if the defendant pled nolo contendere, then it is not admissible.

If he pled Not Guilty, the case went to trial, and he was either convicted or acquitted … well then, nope. Sorry. Still not admissible.

Ah!! But if he just plain ol’ didn’t show up for trial (and had notice ), this is considered a guilty plea: admissible.

You will recall from first year Torts that a car accident can be just that: An accident.  That being the case, you must identify exactly why you allege the defendant should be the one made to pay for it.

The mere fact that the defendant was driving is not enough.

You do not need to include citations to universally known rules of the road (a la, “…in the city of Atlanta, running a red light is in direct contravention of Municipal Ordinance —-“).

No. To the contrary, spare the adjuster any legal citations to municipal code – this is not a law review audition.

Instead, to the extent you are alleging that a commonly known rule of the road was violated, it suffices to say “your client ran a red light…”  Everyone get what that means.

Give your overview, then move on.


 

Watch video How to write a great demand letter.

 

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How to write a great demand letter (for lawyers)

In this video, attorney Candice Blain discusses how to write a great demand letter. Thank you to http://www.bensound.com for the music.

Transcript below.

Done with that?

Then read this: How to craft an auto accident demand letter


 

Transcript:

Who enjoys writing demand letters? Writing a demand letter is tough. And most lawyers will do everything they can to push back that moment when it’s time to sit down, put pen to paper, and write one.  

But if done right, the demand letter can be a lawyer’s most effective tool.

The key to mastering the power of the demand letter is in understanding what it is really meant to do. Yes, a demand letter is not entirely unlike a ransom note.

But unlike a ransom note, what you are threatening here (hopefully), is not murder, but business.

A demand letter is less a legal document, and more a business proposal. 

What this means is that the purpose of a demand letter is not to threaten to file a lawsuit.

Threatening to file lawsuit against an insurance company is a lot like threatening a plumber that you will call him. Lawsuits are the very stuff in which insurance companies deal.

So to write a great and compelling demand letter, you need to speak their language.

You need two things: A Compelling story. And a case.

You begin a demand letter with a compelling story.

Compelling to whom? Well, compelling to a jury. But as seen through the eyes of an adjuster.  What you trying to do is to give a preview of the story that will be told at trial. in writing a demand letter, you are fast-forwarding through time, all the way through discovery and litigation, to  the time of trial. You want to show the adjuster what the jury will be seeing and hearing. 

When this is done properly, what the reader will focus on will not be legal nuances, or case law, but how he now believes a jury will feel about what happened.

This is your story.

In addition to telling your story you need a case.

Not a legal one. A business one.

To make your case, you must identify a number, that is, a settlement figure you would now accept.

The effectiveness of your demand letter hinges on how well you create an incentive for the adjuster to agree to that number.

A demand letter is about incentives.The whole purpose of a demand letter is to show adjuster why a compromise, now — today, is the most sound business decision.

You do this by showing the adjuster why you will win at trial, and why it will end up costing more than it would to settle today.

In other words, the purpose of a demand letter is to illustrate why the cost of settling now is less than the cost of going all the way to trial. 

So, don’t place your final offer in or above the range you hope to achieve by winning at trial. Proposing that number is merely an invitation to meet in the courtroom.

Instead, in your demand letter, propose a deal. Explain why settling later — or not settling at all — will ultimately cost more than what you propose today.

In short, make them an offer they can’t refuse.

A great demand letter consists of two parts: a compelling story and a case. Tell your story as the jury will hear it. Then, pitch your offer: explain why what you are now proposing is the best possible outcome.

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