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How to Write
Effective Letters:
Some
Lessons from “The Art
of
War”
By Marjory Harris, Esq.
The Art of War
has influenced military strategy
for over 2000 years. It contains valuable
lessons for the legal practitioner
as well. In this article we apply some of its wisdom to the art of letter
writing.
“For
to win one hundred victories in one hundred battles is not the
acme of skill. To subdue the enemy without fighting is
the acme of skill.”
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If litigation is compared to
war, letters are a major component of the battle plan. Like Sun
Tzu, we emphasize planning and knowledge of the enemy.
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The
Art of War is an ancient Chinese
military treatise that is attributed
to Sun Tzu. |
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Some general
principles
Know
why you are writing the letter. How does it advance the case? What
problem are you addressing, and what solution are you proposing?
The most effective letters are clear, concise, accurate, contain
only what is relevant to the issue, and are professional in tone.
Inform and persuade without offending the reader. You do not want
them plotting revenge but rather doing what you propose.
People
often put aside long letters to read
later, a habit you can discourage
by writing short ones.
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| People often put aside
long letters to read later, a habit you can discourage by writing
short ones. |
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Planning is key
"The general
who wins the battle makes many
calculations in his temple before
the battle is fought. The general
who loses makes but few calculations
beforehand."
Sun Tzu
emphasized the need to plan before
engaging in battle. Planning is key in litigation as well as
war. As conditions change, strategy must change.
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Know what you want to achieve
The first step to writing
an effective letter is to know what
it is you are trying to achieve.
Define the problem are you discussing
and the solution are you proposing.
While doing this, keep in mind the other side's point of view and
likely reaction.
The purpose of your letter may be to inform. Or
it may be to make a demand for some benefit or action, or it may
be both. Sometimes you need to write a letter because your client
wants you to, even though you know there is no law to support the
request, and it will be denied. While such a letter may make your
opponent think you do not know the
law, Sun Tzu would approve: "Pretend
to be weak, that he may grow arrogant." If you get a baseless
letter from an opponent, remember this too. A sword can cut both
ways.
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| The first step to writing an
effective
letter is to know what it is you are trying to achieve. |
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Know
what you want to avoid
Consider both short- and long-term goals.
Sun Tzu advised, “To win 100 battles is not the height of
skill, to subdue the enemy without fighting is.” Bear in
mind that the goal is to be efficient and effective. Letters that
engender rage or obstinacy will extend litigation, so be careful
not to provoke blowback by rude phrases.
Achieve your goals with
a minimum of resources. It is important to know what battles are
worth fighting, and what battles are to be avoided. Your letter
should be crafted with that in mind. Threatening board proceedings
does not necessarily help your client’s case. It is often
more effective to send a letter that requests opposing counsel
to advise whether they will require a hearing and order in order
to reimburse your expert witness, or will they pay voluntarily?
This puts opposing counsel in the position of having to advise
their client how costly it will be,
that you will probably prevail
with that proceeding and on top of
that they will have to pay defense
attorney fees.
Consider the potential outcomes: avoid blowback
by taking the high road and maintaining a professional tone and
stance.
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Consider the potential outcomes:
avoid blowback by taking the high
road and maintaining a professional
tone and stance. |
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Plan for unintended
consequences
"Whether in
an advantageous position or a
disadvantageous one, the opposite state
should be always present to your mind." Will it backfire? What
is the plan then?
"If we wish to wrest an advantage from the
enemy, we must not fix our minds on that alone, but allow for the
possibility of the enemy also doing some harm to us, and let this
enter as a factor into our calculations."
Something to consider
before taking a deposition, as well
as when drafting the letter.
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Know your reader
Sun
Tzu said, “Know your enemy and know yourself and in a hundred
battles you will never be in peril.”
Before you begin, have
in mind what your client wants to achieve, and what your opponent
wants to achieve. If your client is the injured worker, ask what
he or she wants. Usually they want to get well and return to work.
If they think there is no working future, they usually want you to
get them the most money you can. If
you represent an insurance company,
they generally want to close the file as soon as possible. If you
represent a self-insured or
governmental entity, they want to postpone
payments as long as possible
But don’t take for granted you
know what they want – that can lead to costly errors in war
and litigation. And remember whoever receives your letter will send
it to their client, and perhaps others. It may even be read by a
judge at some point.
Always ask yourself, “How will the reader
(or those the reader sends the letter on to) react?”
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| Always ask yourself, “How
will the reader (or those the reader
sends the letter on to) react?” |
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Drafting the Letter
What you write first is not the
letter. It is the first draft. The first writing may be verbose and
unpleasant in tone, thus ineffective
in achieving your long or short
term goals.
State your premise at the outset. A
summary of what has already happened
can follow (e.g., letter captioned “Demand for Treatment of
Compensable Consequence” may
start out: “Ms. IW has developed
a life-threatening side effect from treatment for her industrial
injury. As you know, she has been taking ibuprofen prescribed by
I.M. Doc, the authorized Primary Treating Physician, and now has
jaundice.”
Note the key facts and document them: “Please
refer to the reports of Dr. Doc dated
XX, which I am enclosing.” State
what law supports your demand: “While Ms. IW had pre-existing
non-symptomatic Hepatitis C, the
ibuprofen has now caused liver damage.
Pursuant to Granado
and its progeny,
you are required to provide treatment.”
Stating your plan (or phrasing it so your opponent gets a benefit)
comes next: “Will defendant voluntarily provide the required
treatment, or do you require that we
proceed to trial on this issue?
We would like to avoid the filing of a petition for unreasonable
delay, so we request your prompt attention to this.”
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| What you write first is not the
letter. It is the first draft. |
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Rules of Written
Battle
Letters that give no room
or opportunity for compromise propel one to trial, where settlement
might be a better option. Any letters you write should not be so
inflammatory that there is no room for compromise. It is important
to keep a civil tone and to stick to the law and facts. Choose your
battles wisely. Sun Tzu advised, “Move only when you see an
advantage and there is something to gain. Only fight if a position
is critical.”
Pick your battles carefully. Make sure you have
law and facts to support your demands and positions. "He who
knows when he can fight and when he
cannot, will be victorious."
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Avoid personal attacks and
inflammatory language. The goal is to communicate and persuade,
not make the recipient defensive
and obstinate. While you may feel
better having got off your chest your anger and annoyance, it is
best to do this in a draft, then delete or shred the draft and
work on a dispassionate but powerful response.
Always bear in mind that your letter might be evidence that will
be before a judge or a reviewing body. It may be attached as an
exhibit to a pleading, submitted at trial. What you write today
is around tomorrow and for years into perpetuity.
Limit boilerplate.
Your letter loses power with every
extra word or unnecessary paragraph.
There's no need to quote the entire statute if you are relying
on one clause. You can note that you are attaching a copy of the
entire statute or case. If you are planning to use your letter
in a later petition, it is good to
note next to "Enc." what
exactly was enclosed. It makes a powerful point in a sanctions
petition that your opponent ignored the law after being sent a
copy of it.
Save breezy language for face-to-face communication if you must
use it at all. It has no place in the legal letter and can cause
blowback. Even if you are on personal and friendly terms with the
recipient, remember that your letter will be sent to the client
and maybe others. You want to avoid the impression that you are
in cahoots with “the other side.”
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| The goal is to communicate and
persuade, not make the recipient defensive and obstinate. |
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Editing: From Draft
to Signed Letter
Letters that are incorrectly formatted, contain
misspellings or misstatements of the law or facts are ineffective.
Check your facts. Make sure you can prove what you state in your
letter. Otherwise, take refuge in "It appears that," the
letter equivalent to the pedantic pleadings phrase, "informed
and believes and thereon
alleges."
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| Letters that are incorrectly
formatted, contain misspellings or
misstatements of the law or facts
are ineffective. |
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Check for passive constructions.
Use the active voice for more power and impact. Who did what? Only
use the passive construction for strategy reasons, when you do not
want to identify who is responsible.
For example, you want something
done for your client and do not want to appear to be attacking the
other side (“Mr. IW was not
provided the requested treatment” may
be more effective than “Your
client failed to provide the requested
treatment.” You can use the
latter in your penalty petition.)
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Only use the passive construction
for strategy reasons, when you do not
want to identify who is responsible. |
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Check for phrases that might
be misunderstood or are undocumented. “You misstate the law
and the facts” needs to be followed with specific examples
and references.
Check your tone. Are you advising or attacking,
suggesting or demanding? Avoid sarcasm or disparagement. Avoid
words that raise hackles
("ridiculous," "nonsense,"
etc.)
And never, ever use foul language in your letters.
Keep in mind
the Board’s rule on sanctions:
“Using any language...
in any …document: … where the language…is
directed…to…any party… or the attorney or
other representative for a party…and…is patently
insulting, offensive, insolent,
intemperate, foul, vulgar, obscene,
abusive, or
disrespectful…” 8
CCR 10561(b)(9)(A)
Try to read the communication from your
reader's point of view and add,
change, or delete where appropriate.
Ask yourself if the communication
gives your reader enough information
on which to act properly.
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Rely on the power of words
Your letter should be clear and
concise, free of the verbiage common
in legal letters.
Within the letter, you can use an outline format,
rubrics and other ways of drawing attention to the importance of
the content. Rely on the power of words, rather than punctuation
or formatting, to make your points.
Putting words in capital letters,
bold or underlined type outside of headings, dashes and exclamation
points do not make for powerful letter writing. Also avoid weak
words such as "very" or wordy phrases such as "with
respect to."
Make one last
pass
Remove anything that serves no purpose, is
inflammatory, rude or hostile in tone.
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| Rely on the power of words,
rather
than punctuation or formatting, to make
your points. |
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Don’t
Reinvent the Wheel
Lastly, store good letters in a templates-type folder, which is not
sent to archives the way the client's folder is. This folder can
be organized by topic or purpose
(Penalty Warnings, Sanctions Warnings,
Settlement Demands, Meet and Confer, Discovery Disputes) Next time
you need such a letter, save a copy to the client's folder and use
it as a template for your draft. As a caveat, It is important to
avoid the predictable and boilerplate. Instead of using the same
template over and over, tailor it to the facts of your case.
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Get in the habit of storing any good letters you
write in a separate folder. Tailor templates to the facts of your
case.
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Marjory
Harris, Esq. began practicing law in 1974 as a defense attorney
and later became an applicant's
attorney and a certified specialist.
She continues to represent injured workers in the San Francisco
Bay Area and Inland Empire, and
mentors attorneys on big cases.
Reach Marjory Harris at (888) 858-9882 or email
to MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com
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