Some lawyers seem to think that “cease and desist” and “demand” letters should threaten a lawsuit if the other side doesn’t do what’s demanded. It’s been my experience, though, that nothing good ever comes from explicitly threatening to sue:
- Your letter will not cause the other side to suddenly see the light and agree with your position, especially if there’s any uncertainty at all about who’s right. If anything, a threatening letter will often have the opposite effect. (Letters full of bluster always make me think of the screeching-apes scene at the beginning of 2001: A Space Odyssey.)
- Alerted by your threat, the other side might beat you to the punch by suing you — in a court you might have wanted to avoid — for a declaratory judgment that they’re not liable, sort of like the swordsman scene in Raiders of the Lost Ark.
- If you don’t make good on your threat, the other side will conclude that you’re all bark and no bite, which likely will make it more difficult to settle on terms you like.
The better course, I’ve found, is to write the demand letter as a courteous, professional-sounding business letter:
- Briefly describe the problem, in a factual, non-argumentative way — with enough details to educate the other side’s lawyer (your real audience) and keep the other side from later claiming that your notice was insufficient.
- Ask that the other side’s lawyer contact you as soon as possible to discuss the matter.
- If your demand letter is about a breach of contract, emphasize (if true) that your client wants to preserve the business relationship.
- Don’t even hint that you might file a lawsuit.
This won’t guarantee a favorable settlement by any means. But neither will it needlessly get in the way of one.
Agree with your post. Nothing is worse than threatening to sue and not suing. In Australia it is considered bad form by many not to notify the other side before suing (though I have never had any sort of positive response when I do so).