Chapter 19 - Correspondence

The three main categories of letters that include legal research and analysis to some degree are:

1. Letters that provide information—informational letters 2. Letters that provide answers or legal opinions—opinion letters 3. Letters that demand action—demand letters

Answer/Conclusion

A brief answer to the question similar to the brief answer section of an office memorandum The answer/conclusion section presents a brief answer to the question. It is similar to the brief answer section of the office memorandum. By placing the answer near the beginning of the letter, the reader immediately knows the result without having to read the explanation. The answer should be clear and as short as possible. Because the answer is usually a legal opinion, you should state it as an opinion. Add any needed specifics or limitations after the answer.

Facts

A brief presentation of the background and key facts relative to the question(s) being addressed Present the facts in an opinion letter in the same objective manner as in an office memorandum. Include only the key and background facts to keep the section as short as possible. Therefore, including the facts focuses the client on what is relevant to the content.

Answer/explanation

A detailed presentation of the legal information or background on a legal issue

Introduction/opening

A detailed presentation of the legal information or background on a legal issue

Introduction/opening

A sentence or paragraph explaining the purpose of the letter

Introduction / opening

A sentence or paragraph identifying the question or questions that will be answered

Closing

A standard closing statement or if the answer/ explanation is lengthy, a summary of the answer. In some instances, especially when the answer/explanation is lengthy or complex, it may be necessary to include a summary or a conclusion in the closing.

General Considerations—All Correspondence

Adopt the highest standards of accuracy, both substantive and stylistic, when drafting legal correspondence. In many situations, the information provided in the correspondence constitutes the practice of law and subjects the firm to possible liability for claims of legal malpractice. Therefore, the quality of the product is critically important. You should do the following: • Take the utmost care to ensure that any legal research and analysis are free of error. • Make sure that the finished product is free from writing errors involving grammar, spelling, and so on. • Be prepared to perform

Explanation

An explanation of how the law applies to the facts raised by the question, crafted in a manner that the recipient will understand. The explanation section is similar to the analysis section of an office memorandum. The difference is that the explanation must be crafted in a manner that is not so technical that the client has difficulty understanding it.

An opinion letter

An opinion letter is similar to an information letter in that it provides information concerning the law. It is different in that it often includes, in addition, an analysis of that information and provides a legal opinion or legal advice. The purpose is to inform the reader how the law applies to the facts. An opinion letter is usually generated in response to a client's question or raised by the facts in a client's case. Therefore, the focus of this section is on opinion letters addressed to the client. An opinion letter provides the reader with a legal opinion and legal advice; therefore, it constitutes the practice of law and an attorney must sign it. The attorney is subject to legal liability for harm that occurs as a result of the client acting upon erroneous information contained in the letter. If you are preparing the draft of an opinion letter, take great care to ensure that your research and analysis are accurate. Because the purpose is to inform the client of the law and provide legal advice, the opinion letter is drafted in the same objective tone as the office memorandum. The difference is that the client is usually a layperson unfamiliar with legal terms and legal writing. When this is so, avoid legalese, and keep legal quotations and citations to a minimum.

Demand or Advocacy Letter

Another basic type of letter you may be called upon to draft is a demand letter, sometimes called an advocacy letter. This type of letter is designed to persuade someone to take action favorable to the interests of the client or cease acting in a manner that is detrimental to the client. This may be as simple as demanding payment on a debt or as complex as requesting that a course of conduct be taken, such as rehiring an employee. In many instances, a demand letter will include a summary of the applicable law in support of the requested action. This section addresses the considerations involved when preparing a demand letter that includes a reference to the law and an analysis of the law. A major difference is that a demand letter is not designed to address a legal question, but to encourage action or seek relief. Therefore, it does not contain an answer/conclusion section in the body because it does not address a question that requires a brief answer. The demand letter also differs from an opinion letter in that it is designed to advocate a position and persuade the reader; therefore, it is written in a persuasive manner.

method of delivery

At the left margin, below the date, is the method of delivery. This is usually required only if the manner of delivery is other than U.S. mail. Examples are as follows: Via Federal Express Via hand delivery Via facsimile

Recipient's Address Block

Below the date and method of delivery is the address block of the addressee. Place it at the left margin. The address block is single-spaced and includes: • The name of the person to whom the letter is addressed • The individual's title (if any) • The name of the business (if applicable) • The address The following is an example of an address block: Elizabeth Counter President Friendly Enterprises 139 Main Street Friendly, NW 00065

Salutation or Greeting

Below the reference line is the salutation or greeting. Legal correspondence is generally formal in tone, and the greeting is normally formal. An example of a greeting follows: You may use the first name if you know the addressee well, but this is usually the exception. If in doubt, ask the supervising attorney. If you do not know the name of the addressee, such as may be the case when the letter is addressed to a business, contact the business and ascertain the individual's name. The use of "To whom it may concern:" is impersonal and invites a slow response. A person is likely to respond more quickly when he or she is specifically named. In addition, it indicates the law office is ill-informed as to who it is contacting, which can reflect poorly on the law office.

Correspondence

Correspondence is a major form of written communication between the law firm and the outside world. Other than documents submitted to courts and transaction documents, such as contracts, correspondence is the primary form of writing designed for an audience outside the law office.

Information letters

Letters that provide general legal information or background on a legal issue (e.g., the information may be a summary of the law or the requirements of a particular statute)

Opinion letters

Letters that provide information concerning the law, an analysis of that information, and a legal opinion or legal advice

Closing

Like the closing of an opinion letter, the closing of a demand letter is usually not a separate section. It is usually the last paragraph of the explanation section and is similar to the closing of any legal correspondence. The closing should restate the relief requested and indicate the next course of action.

Enclosures

If enclosures, such as contracts and documents, are included with the letter, indicate their presence with an enclosure notation by typing "Enc." or "Encs." at the left margin following the signature. Sarah Smith Attorney at Law Encs.

Others Receiving Copies

If other individuals are receiving copies of the letter, indicate this by typing "cc:" and the name of the individual(s) after the signature and title. This follows the enclosure notation if an enclosure notation is used. An example is as follows: If you are uncertain who should receive copies, check with your supervisor.

explanation section

If there is more than one issue, discuss the issues in the order in which they are presented in the introduction. •If possible, limit the letter to as few issues as possible (i.e., two to three). If there are multiple issues, the letter may become too complex or long, and the reader may have difficulty understanding or keeping track of the subject matter. Separate the issues, and prepare more than one letter if necessary. •Draft the content with the reader's legal sophistication in mind. The client may not be familiar with the law and technical writing, and an explanation that is as detailed as the analysis section of an office memorandum may not be appropriate. Keep quotations and citations to a minimum. Rather than quoting, rephrase the statutory or case law in a manner that a layperson can understand. If you must use a legal term, make sure its meaning is clear. Define the legal terms that you use. •Provide a complete explanation. The client must be fully informed. Do not omit important information because the client is unsophisticated in the law. Present all the key information in a manner that fully and clearly informs the client.

Requests or instructions for the recipient

Include any requests or instructions for the recipient in the last section of the body. In some instances, a paralegal or law clerk may draft and sign a letter to the client. A paralegal or law clerk may sign a letter that provides general information. Neither may sign a letter that gives a legal opinion or legal advice. Most state laws and rules of ethics prohibit a paralegal or law clerk from practicing law, and providing a legal opinion or legal advice constitutes the practice of law. Therefore, when preparing a letter that you, another paralegal, or law clerk will sign, be sure not to include a legal opinion or provide legal advice.

Demand or advocacy letters

Letters designed to persuade someone to take action favorable to the interest of the client or cease acting in a manner that is detrimental to the client (e.g., a summary of the applicable law in support of the requested action)

Other letters

Letters that inform the client of the current status of the case Letters that present the firm's bill Letters that give the results of an investigation Letters that provide general legal information or background on a legal issue

Answer/Explanation

The answer/explanation section presents the results of legal research and analysis.

Basic format of a letter

The basic format of a letter varies among firms, and is dictated by personal taste and style. Two fundamental styles are full block and modified block. In full block, everything but the letterhead is flush with the left margin. In modified block, the date is centered, and the signature line may be just to the right of the center of the page or flush left. The first line of each paragraph is indented.

body of the letter

The body is the heart of the letter—what the letter is about. The body is usually composed of an introduction, main body, and requests or instructions

body of the letter

The body of the letter usually begins with an introductory sentence or paragraph (if necessary) that identifies or summarizes the main purpose of the letter. Be sure to use language that sets the appropriate tone. Understanding the type of letter being written and the content of the letter will allow the paralegal to choose words that set an appropriate tone.

Closing

The closing follows the body of the letter. The closing usually consists of some standard statement. The follow- ing are examples of closings: Thank you for your prompt consideration of this matter. Sincerely, Please contact me if you have any questions in regard to this matter. Very truly yours, Thank you for your assistance. Best regards,

facts

The content of the facts section is the same as in the opinion letter except that you should present the facts in a persuasive manner similar to the persuasive presentation of the facts in a court brief.

The explanation section

The explanation section presents the legal authority in support of the relief requested. Because the reader is a non-lawyer, draft the section with this in mind. \ This section of a demand letter differs from the explanation section of an opinion letter in that you should draft the section in a persuasive manner.

Initials of Drafter

The final notation on the letter is a reference to the author of the letter and the typist. Note the initials of the drafter in all capitals, and note the typist's initials in lowercase letters (e.g., JDR/mwt).

Full date

The full date is usually below the letterhead at the left margin, or centered below the letterhead. The date includes the full date: the day, month, and year. Because most correspondence is filed chronologically, a date is essential for the chronological file.

Demand or Advocacy Letter - Components

The introduction of a demand letter is somewhat different from the opening of an opinion letter. It begins with the identification of the writer or the client. A statement of the purpose of the letter follows the identification. It establishes the focus of the letter and identifies the problem addressed and the relief sought. Introduction/opening Facts Explanation Closing/conclusion An identification of the writer or client followed by the statement of the purpose of the letter. A brief presentation of the background and key facts relative to the question(s) being addressed A presentation of the legal authority in support of the relief requested, crafted in a manner that the recipient will understand The last paragraph of the explanation section, containing a standard closing statement (or, if the explanation is lengthy, a summary of the explanation); should restate the relief requested and indicate the next course of action. The content of the facts section is the same as in the opinion letter except that you should present the facts in a persuasive manner similar to the persuasive presentation of the facts in a court brief. The explanation section presents the legal authority in support of the relief requested. Because the reader is a non lawyer, draft the section with this in mind. This section of a demand letter differs from the explanation section of an opinion letter in that you should draft the section in a persuasive manner. Like the closing of an opinion letter, the closing of a demand letter is usually not a separate section. It is usually the last paragraph of the explanation section and is similar to the closing of any legal correspondence, as discussed in section II of this chapter. The closing should restate the relief requested and indicate the next course of action.

The introduction of a demand letter

The introduction of a demand letter is somewhat different from the opening of an opinion letter. It begins with the identification of the writer or the client. A statement of the purpose of the letter follows the identification. It establishes the focus of the letter and identifies the problem addressed and the relief sought.

Closing/Conclusion

The last paragraph of the explanation section, containing a standard closing statement (or if the explanation is lengthy, a summary of the explanation); also includes a statement of any action the client should take or what will occur next

Letterhead

The letterhead usually consists of the full name, address, telephone number, facsimile number, and web address of the law firm. It is usually preprinted on the firm's stationery and centered at the top of the page. An example of the information in a letterhead follows: Only the first page of the letter will be on or have letterhead. Subsequent pages contain an identification of the letter, which is usually called a header. These pages do not contain the letterhead. The header includes the Thomas, Belter and Ryan 751 Main Street Friendly, New Washington 00065 (200) 444-7778 • FAX 444-7678 • www.thomaslaw.com Name of the addressee, the date, and the page number, and sits at the top left or right margin of the page. An example of a header is as follows: Jon Jones May 5, 2016 Page Three

Main body of the letter

The main body of the letter follows the introduction. The main body explains in detail the purpose of the letter. Craft the main body with care to ensure that you communicate the required information clearly and concisely. It may be necessary to use an outline when a letter covers multiple or complex matters. As with an office memorandum or court brief, the body may require several drafts. You must always consider the audience when drafting the main body. If you are drafting the letter to a lay- person, such as the client, avoid the use of legalese; define and clearly explain any legal terms used. When writing to a layperson, consider the sophistication of the reader. Ask yourself: • How familiar with legal matters is the reader? •Does the reader often read material that involves complex subjects? The content of the body will differ according to the type of letter you are drafting.

Reference Lines

The reference line briefly identifies the topic of the letter. A reference line is usually placed at the left margin following the address block. Some firms require that the reference line include the case name and number if the letter concerns a pending lawsuit. The following is an example of a reference line: The reference line may also contain the statement Confidential Attorney Client Communication.

Signature and title of the person signing the letter

The signature and title of the person signing the letter follow the closing. An example follows: Sarah Smith Attorney at Law. When the individual signing the letter is a paralegal, the paralegal status should be clearly indicated below the signature line, as in the following examples: Jon Jones Paralegal Sarah Smith Paralegal

How should correspondence written?

Well crafted, because it helps establish and maintain the image and reputation of the law firm. Correspondence that contains grammatical or substantive errors or is difficult to understand reflects poorly on the law firm: A client may question the firm's capability to handle the client's case. The court may question the competence of the individual who signed the document. Opposing counsel may conclude that if the law firm is incapable of preparing quality correspondence, it is not capable of successfully representing its client.