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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.

 
The Art of War is an ancient Chinese military treatise that is attributed to Sun Tzu.
   
 
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.
 
People often put aside long letters to read later, a habit you can discourage by writing short ones.
 

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.

 
 
 
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.

 
The first step to writing an effective letter is to know what it is you are trying to achieve.
 
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.

 
Consider the potential outcomes: avoid blowback by taking the high road and maintaining a professional tone and stance.
 
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.

   
 
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?”

 
Always ask yourself, “How will the reader (or those the reader sends the letter on to) react?”
 
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.”

 
What you write first is not the letter. It is the first draft.
 
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."
 
 
 
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.”

 
The goal is to communicate and persuade, not make the recipient defensive and obstinate.
 
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."
 
Letters that are incorrectly formatted, contain misspellings or misstatements of the law or facts are ineffective.
 
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.)
 
Only use the passive construction for strategy reasons, when you do not want to identify who is responsible.
 
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.

 
Keep in mind the Board’s rule on sanctions.
 
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.

 
Rely on the power of words, rather than punctuation or formatting, to make your points.
 
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.

 
Get in the habit of storing any good letters you write in a separate folder. Tailor templates to the facts of your case.
 
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