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A demand letter is a document that gives formal notice that you are considering legal action. Most demand letters contain a demand for money or some other form of remedy.

Demand letters are typically written by attorneys. However, non-attorneys (known as pro se or pro per parties) can write their own demand letters, as long as doing so is not prohibited by state laws or court rules.*

In this podcast, I will explain the following in detail:

• Why writing a demand letter is so important
• Things to keep in mind when writing a demand letter
• What to put in a demand letter
• What to avoid when writing a demand letter
• How to finalize and send a demand letter

If you are serious about writing a persuasive, effective, and professional looking demand letter to help you successfully resolve your dispute, download The Legal Seagull's free guide How to Write a Great Demand Letter by clicking here. The downloadable guide includes a high-quality, realistic sample that you can use to help you in writing a demand letter.

WHY WRITE A DEMAND LETTER?

If you are involved in a legal dispute, your first inclination might be to file a lawsuit. However, doing so without first attempting to resolve the dispute may be a huge mistake. Writing a persuasive and professional-looking demand letter may accomplish the same–or even better–results than a lawsuit, without the risks and expenses of taking your case through trial.

Think about it this way: If you can get paid (or obtain something else you want) by spending 30-60 minutes writing a letter, rather than spending many hours and dollars pursuing a lawsuit, is that not worth the effort?

There is no guarantee that your opponent will read your letter and immediately mail you a check; however, often enough, demand letters start a dialogue, which can lead to resolving your dispute without the need to file a lawsuit.

Believe it or not, your opponent might not even realize that you have a grievance and are considering legal action! And, if your opponent knows, he or she might not take you seriously until you send a stern demand letter detailing your allegations and claims for damages. 

Sometimes people try to ignore a legal dispute, hoping that it will simply go away. Occasionally that happens and they are lucky, but often enough, the dispute snowballs into a lawsuit. No one wants to be sued, and receiving a demand letter is not something most people can afford to ignore.

If your grievance is against a company, your demand letter may trigger management to take your demands seriously and contact the company's lawyers and liability insurance carrier. If your claims appear strong enough, this could contribute to an early settlement of your claim. 

THINGS TO KEEP IN MIND WHEN WRITING YOUR DEMAND LETTER

Writing a great demand letter is an art—not a science. Here are a few things you should consider when writing a demand letter:

Be respectful and polite.

No matter how much you dislike your opponent, there is no reason to resort to nastiness. The whole point of writing a demand letter is to resolve the claim without having to go through a lawsuit. 

Put yourself in your opponent's shoes. Imagine this: You come home after a long day of work and grab your mail. After opening up a few bills, credit card offers, and ads, you unexpectedly come across a nasty letter from someone who claims you breached a contract. The letter is loaded with aggressive threats and foul language, and barely contains any supporting facts. Are you likely to respond well? Would you be inclined to reach for your checkbook and mail back a check? Probably NOT!

Now imagine this: You open up a letter that is professionally written, polite, and logically explains, with supporting facts, how you breached the contract. Would you be more likely to take the letter seriously and try to resolve the dispute? Probably!

You are more likely to resolve a claim by being respectful, polite, and assertive than by making hostile accusations and being a jerk. It is best to start off with a positive tone. You can always take a harsher stance later on, if necessary. For example, if your opponent does not respond to your letter after a reasonable time, or refuses your demands, you can consider writing a more forceful demand letter or even filing a lawsuit.

Make your letter appear professional.

Type up your demand letter on a computer. Or, if you are old-fashioned, a typewriter will do. Include your contact information in the letterhead so your opponent can contact you.

Do your very best to use proper grammar and spelling and to make the letter appear as professional as possible. 

The demand letter needs to convey seriousness and competence. If you are not comfortable with your writing abilities, have a friend or family member help you write it.

Know your audience.

Depending on your opponent's education, training, and level of sophistication, you may want your demand letter to be more—or less—detailed. Likewise, your choice of language should be adjusted accordingly.

You should also take into account your relationship with your opponent. Is this someone you want (or need) to maintain a favorable relationship with? Do you want to continue doing business with your opponent in the future? Is it a member of your family? All this needs to be taken into account when deciding what tone to use in your demand letter.

Keep it short but sweet.

There is no ideal length for a demand letter. The length depends on your writing style, how long the dispute has been going on, how complex the facts are, and how much you feel you should divulge in your letter. That being said, in the modern world of smart phones, tablets, and other digital devices, attention spans tend to be very short. 

Often in law, as in life, a short letter that gets to the point without too much fluff and blabbering gets better results than the opposite. When writing your demand letter, try to keep it between 1-3 pages, unless you feel you need more to get your points across. 

WHAT TO PUT IN YOUR DEMAND LETTER

Now that we have covered the basics, we will get down to the nitty-gritty of writing your demand letter:

Start by recounting the history of your dispute.

Even though you might remember the facts of your dispute, your opponent might not. Or, if he or she does, their recollection might be very different than yours. A demand letter is a great opportunity to relay your version of the facts. 

The factual history should discuss the incident, event, or contract that forms the basis of the dispute. What happened that brought you to this point? You do not have to write a novel about it, but you should make it detailed enough to support your claims. Be sure to include any attempts you made to resolve the dispute, such as letters, e-mails, conversations, or settlement offers. Remind your opponent how reasonable you have been.

Include facts and legal contentions

You do not need to include EVERY fact and legal theory you can think of; however, it is generally helpful to recount the key facts and the causes of action you are considering (e.g., breach of contract, personal injury, negligence, defamation, etc.). Some demand letters spell out the relevant elements of each cause of action and facts to support each. It all depends on how much you want to divulge at this early point and what you think would best accomplish your goals.

Recite your damages.

"Damages" refers to the sums of money you claim for the harms you incurred or will incur in the future. If you are demanding money (or something else) to resolve your dispute—which is the whole point of writing a demand letter—it usually makes sense to describe the damages you incurred and what you believe you will suffer in the future. 

Try to be as specific as you can with the damages. However, sometimes damages are difficult to quantify. If that is the case, do your best to be as specific and accurate as possible, and state in the letter that you are still working on calculating your damages.

Do not forget to explain how your opponent's conduct caused or contributed to those damages. Unless you do a good job explaining how your opponent caused your damages, do not expect him or her to write you a check! 

Clarify that your investigation is ongoing.

Make sure to state in your demand letter that you are still investigating the facts and that the letter does not contain a full recitation of the facts and damages you sustained. Moreover, write that you reserve the right to state additional facts and damages as your investigation continues. That way, if your understanding of the facts changes, or you realize you suffered additional damages, you could argue that you reserved the right to make changes in your original demand letter. 

Demand preservation of evidence.

It is illegal to destroy evidence when one knows or believes that a lawsuit has been filed or is likely to be filed; however, do not assume your opponent knows (or respects) that! 

In a perfect world, you would not have to demand that your opponent preserve key evidence. Nevertheless, if you believe your opponent possesses physical evidence, documents, or electronic media that are capable of being "misplaced," altered, destroyed, or deleted, be sure to remind your opponent to preserve all evidence until your dispute is resolved or litigation is completed.

If you know of any specific evidence in your opponent's possession that you want preserved, make sure to describe those items specifically when writing a demand letter.

Explain why it makes sense to resolve case.

If your opponent has not been sued before, he or she might not know the costs and risks of allowing a dispute to snowball into a lawsuit. Explain why it makes sense to resolve your dispute without dragging it through the court system. To successfully settle your dispute, you need to show your opponent what is at stake.

You could include the following:

1. Save money on litigation costs and attorney's fees;
2. Avoid a judgment;
3. Prevent a lengthy and expensive lawsuit; and 
4. Avoid the burden of having to produce documents, respond to discovery requests, and take time off work to appear at depositions, court appearances, and trial.

You want your opponent to receive your letter and immediately understand the personal, professional, and financial consequences of failing to properly address your claims.

Consider setting a deadline.

There is a difference of opinion among attorneys as to whether you should give your opponent a deadline to respond to your demand letter. Some attorneys believe that a deadline creates a sense of urgency; others think that deadlines only irritate your opponent and make settlement less likely. 

It is up to you to evaluate the facts of your case, your opponent's personality, your history of dealing with your opponent, and whether it is in your best interest to set a deadline. If you set a deadline, make sure to follow through if your opponent fails to respond. If you do not receive a response by the deadline, be prepared to send a follow-up letter or file a lawsuit.

If the statute of limitations is approaching for your lawsuit, be sure to set a deadline that leaves you enough time to file a timely lawsuit if you are unable to resolve the dispute with a demand letter.

WHAT TO AVOID Nastiness and abusive language.

There is nothing to gain—and a lot to lose—by allowing your potty mouth to get the best of you. Abusive language will only annoy your opponent, discourage productive dialogue, and make settlement negotiations more difficult—or even impossible.

Furthermore, if your dispute leads to a lawsuit, imagine your embarrassment when your letter calling your opponent an "idiot," "ignoramus," or "poo poo head" is seen by the judge presiding over your case?

Be completely accurate and truthful

EVERYTHING you put in writing has the potential to be used against you. If you write something that is inaccurate or untrue, it could be used to cross-examine you at trial. That could be embarrassing, damaging to your credibility, and disastrous to your case. 

If you are not sure about something, leave it out or put in something to qualify your statement, such as "I am informed and believe that…," or "it is my understanding that…"

Do NOT commit extortion!

Extortion is a crime. Its elements differ in every state, so you want to make sure you do your research and comply with all applicable state/federal laws. The general pattern of extortion laws is that a person is guilty of extortion if he or she uses certain threats to induce someone to pay something, do something, or refrain from doing something. We cannot and will not interpret the extortion laws in your jurisdiction, but here are some general, non-state-specific pointers for things to absolutely avoid in your demand letter:

• Any mention of damaging, destroying, or harming the property of your opponent, his/her family, or any other person.
• Any mention of accusing your opponent, his/her family, or anyone else, of a crime or disciplinary action.
• Any mention of exposing a secret of your opponent, his/her family, or anyone else.
• Any mention of causing shame, disgrace, disrepute, humiliation, or damage to the reputation of your opponent, his/her family, or anyone else
• Any mention of injuring or killing your opponent, his/her family, or any other person.

Unless your jurisdiction's laws say otherwise, it is generally not considered extortion to merely threaten to file a lawsuit if your demands are not met—if in fact you intend to file a lawsuit.

FINALIZING AND SENDING YOUR DEMAND LETTER Have someone proofread and edit your demand letter.

When you think you are done writing the demand letter, ask a friend or family member to review and edit it. Pick someone with great grammar and spelling abilities. If you can find someone with a legal background, that would be a huge plus.

This step is extremely important. We all have a tendency when writing to assume that the reader understands our writing as well as we do. In reality, no matter how many times you edit your own writing, you will almost always miss things that an independent set of eyes could uncover.

If you give your demand letter to someone to review and they return it to you with a pat on the back and no recommendations for edits or changes, that means they did not do their job. Find someone else!

Make a copy and send by certified mail.

Once you have reviewed and finalized your demand letter, keep a copy and send the original by certified mail or some other form of "trackable" delivery. 

If you are using the United States Postal Service (i.e., mail), consider using certified mail with return-receipt requested. You definitely want proof that the letter was delivered—especially if your dispute ends up in court. If you have never sent a letter by certified mail with return-receipt requested, ask someone at your local post office to help you. It is easy!

In addition to sending the letter by mail or carrier, consider scanning it and sending a digital copy by e-mail. That will make it even harder for your opponent to deny having receiving it.

Good luck!

To download How to Write a Great Demand Letter, The Legal Seagull's free guide and demand letter sample, click here.

Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator!

Like this podcast? Then you'll love the video! Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook and follow us on Twitter and Instagram.

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at http://www.thelegalseagull.com/disclaimer

"When in Rome, do as the Romans do." Yes, it's an annoying and overused cliché, but an important piece of advice for how to act in court or any other new environment. Going to court is no different than any other new place. There are certain rules and formalities you must abide by—and some important things to avoid.

This podcast will cover the A to Z of how to act in court. It's impossible to anticipate every conceivable scenario you may encounter, but we'll give you detailed guidelines for how to act in court so that you can appear professional, prepared, and confident. This is especially important if you are representing yourself without an attorney (pro se or pro per).

 

Dress appropriately.

"Dress for success" is another cliché (sorry!), but it is absolutely necessary whenever you set foot in a courtroom. Dress appropriately for all depositions and meetings with the parties and opposing attorneys, whether or not it takes place in a courtroom. Although this may seem obvious, I have seen more than one pro se / pro per party show up in Bermuda shorts and flip-flops!

Judges tend to be very formal and expect parties to be dressed conservatively. What you wear is a reflection of your attitude towards the lawsuit and your respect (or lack thereof) for the court. If you dress poorly, wear tattered or stained clothes, reveal too much skin, or make poor wardrobe choices, you may be judged harshly, even if you are representing yourself pro se / pro per. Although it may seem superficial, jurors are known to penalize parties who dress in an unconventional or non-professional manner.

Clothing options for men

It is always best to wear a suit and tie to court. If you do not own a suit, look for affordable ones in your area or online. Thrift stores are also a good source for used suits—or you can borrow one from a friend or family member.

If you absolutely cannot get a suit, at the very least you should wear slacks and a dress shirt (properly ironed) with a tie and sports coat. As for shoes, go with brown or black dress shoes.

Never wear: Sneakers, sandals, flip-flops or any other open-toed shoes; a cap or hat; shorts; sunglasses (unless you have a medical condition); jeans; t-shirts; torn clothing; or excessively baggy pants.

Clothing options for women

Disclaimer: I am in no way an expert in women's clothing! However, based on my years of experience in various courthouses, it seems the best options are a pants suit, skirt suit, nice dress, or slacks with a conservative top.

Although society has become much more progressive in its approach to gender equality, courts have not moved nearly as fast. Judges and jurors still have conservative views when it comes to proper attire for women (yes—there is a double standard!). Avoid dresses and skirts that are too short—nothing higher than the knees—and blouses that reveal too much skin.

Never wear: Sneakers; flip flops; halter tops; tank tops; sleeveless blouses; t-shirts; mini skirts; or shorts.

For both men and women

1. Cover up tattoos (if possible): Wear long pants or tops to cover tattoos. If you have visible tattoos on your neck, face, or hands that you cannot cover with clothing, there are several cosmetic products that conceal tattoos. Better to be safe than sorry—you want the judge or jury to decide your case based solely on the facts—not on their opinion or prejudice regarding your tattoos.  I once saw a pro se / pro per party appear before a judge with a huge neck tattoo that said "THUG LIFE." He probably should have worn a turtleneck shirt…
2. Remove piercings: Do not worry about earrings, but if you have piercings in your lip, nose, chin, eyebrows, or anywhere else visible—remove them.
3. Avoid loud colors: It is best to stick to conservative colors—black, white, brown, dark green, and dark blue. Do not go too crazy with the colors. If you wear red, pink, purple, lime green, or mustard yellow, you may distract the judge or jury. Keep the array of colors for your bowl of cereal.
4. Avoid expensive jewelry: Do not expect much sympathy from the judge and jury if you are wearing expensive jewelry—especially if you are asking the court to award you money!

Be punctual.

Always budget enough time to make it to court. Take into account traffic, parking, and courtroom security. Depending on the courthouse, it may take you a while to get through security.

Being late reflects poorly on you and could result in you being penalized and reprimanded by the judge. As the great Vince Lombardi said, "if you ain't 15 minutes early, you're late."

Address the judge properly.

When addressing the judge, always address him or her as "Your Honor." It is generally appropriate to say "Judge," but try to stick to "Your Honor." Never address the judge as "Sir," "Mister," "Madam," "Ma'am," "Jonathan," or "Wassup, Dawg?"

 

Stand when you speak to the judge.

Even if there are chairs at the counsel's table, always stand when speaking to the judge unless you are invited to sit down or you have a medical condition that makes standing difficult or impossible.

Direct all comments and arguments to the judge.

Always speak directly to the judge; do not address your opponent or the opposing attorney. When responding to your opponent's arguments, speak directly to the judge.

Even though it might seem strange, you are always addressing (and facing) the judge when you talk. This applies whether you have an attorney or are representing yourself pro se / pro per.

Be polite and show respect to the court and parties.

Treat the judge and your opponents with courtesy and respect, even if you disagree with what they are saying. Here are a few words and terms you can use to keep your language respectful:

 

• "Respectfully"– you could interject this when addressing the judge or responding to your opponent's arguments. For example: "Your Honor, I respectfully disagree with Mr. Smith's arguments because…"
• "If I may"- this conveys deference to the court and shows that you are respectful of the court's time. "Your Honor, if I may respond, this evidence is relevant to my case because…"
• "Counsel"- when referring to the opposing attorney, use the term "counsel." Never use first names!
• "Please" and "thank you"- as in everyday life, these words are used far too sparingly in court. Whenever a judge, party, or counsel does or says something nice, cooperative, or pleasant, be sure to thank them. This of course is true for all aspects of life, not just for learning how to act in court.

NEVER interrupt the judge (or anyone else).

This is a big no-no! Judges hate being interrupted (especially by pro se / pro per parties). Even if you disagree with the judge, believe he or she misunderstands an aspect of the case, or is misstating the law or the facts, do not interrupt. Wait until the judge has finished, and then politely respond, unless of course the judge indicates that you should stop talking.

The same goes for the opposing party, counsel, and witnesses. You may hate what they are saying—but do not interrupt. Wait until they are done and the judge asks you to respond. If the judge does not offer you a chance to respond, you can politely ask the judge to allow you to speak.

If you are ever admonished or criticized by the judge, never be disrespectful or raise your voice.

 

Never approach the bench without permission.

The judge may ask you to approach the bench to speak privately. Unless you are invited, do not approach the bench without permission. The last thing you want is to be tackled by the bailiff!

Avoid negative body language.

You may not like what the judge, parties, or witnesses are saying; however, you must make sure you do not exhibit any negative body language. Do not smirk, roll your eyes, groan, or make any other gestures. Doing so could subject you to discipline by the court, and the judge and jury might interpret this as arrogance or rudeness.

Be persistent but know when to stop.

During court proceedings, you might disagree with the judge's rulings. As long as you do so respectfully and politely, you may ask the judge to reach a different ruling. However, know when enough is enough!

Do not chew anything.

Do not chew food, gum, tobacco, or anything else while in court. Judges do not like it and neither do jurors.

Never lie or mislead the court.

It is unlawful, improper, and just plain wrong to lie or distort the truth in court. If you do so under oath, you could be prosecuted for perjury, held in contempt, or face fines, imprisonment, or all of the above.

Be very nice to the clerk.

The court clerk has a surprising degree of power—which could help make your life a bit easier or much harder. For example, clerks can sometimes reject court filings for very minor, technical violations of court rules. Other times, they may be more willing to "bend" the rules.

Being nice will not necessarily get the clerk to help you—but your chances will probably be better than if you are rude!

Put away your cellphone.

Put your phone on silent mode or shut it off before entering the courtroom. That means no talking on your phone. No text messaging. No Facebook, Instagram, or Twitter. And don't you DARE try taking a selfie with the judge!

I once sat next to a pro se / pro per party who was so busy playing a game on his phone that the judge had to call his case four times before he finally realized what was happening. Needless to say, the judge was not impressed…

Conclusion

It is normal to have some anxiety regarding your first day in court. There is nothing unusual about feeling uncertain, nervous, or even mildly panicked before entering a new environment. Just remember the tips in this article and you will be off to a great start! You can learn more by subscribing to The Legal Seagull's podcast on iTunes, Stitcher, or Soundcloud.

Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator!

Like this podcast? Then you'll love the video! Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook and follow us on Twitter and Instagram.

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at http://www.thelegalseagull.com/disclaimer

Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts.* Statutes of limitation cut off a party's right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.

Throughout my career, I have had the following situation happen to me several times. I meet a potential client, listen to her story, and start to believe she has a potentially good case supported by solid evidence. Intrigued, I ask her, "when did this all happen?" Her response is something like: "about 7 years ago." My initial enthusiasm then turns to disappointment as I realize that the statute of limitations expired years ago, completely extinguishing her right to sue.

One of the biggest mistakes parties without an attorney (known as pro se or pro per parties) and new attorneys make is failing to realize that the statute of limitations has expired on their claims. You could have the best facts in the world—but if you blew the statute of limitations—your case is probably toast.

 

What are statutes of limitation?

Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party's right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.

For example, in the fictional State of Atlantis, the statute of limitations for personal injury claims is two years from the date of incident. On January 5, 2017, Dale Defendant smashes his speeding car into Patrick Plaintiff, breaking Patrick's legs. Patrick has until January 5, 2019* to file a lawsuit. If Patrick files the lawsuit after January 5, 2019, he has blown the statute of limitations and most likely cannot sue.

Even though judges are sometimes slightly more lenient with pro se / pro per parties, they will not (and cannot) allow you to proceed with your lawsuit if you blow the statute of limitations (even if you are pro se / pro per).

Generally speaking, statutes of limitation control the time a party has to file a lawsuit—not the time to litigate it. This means that Patrick must file his lawsuit by January 5, 2019, but the lawsuit can proceed in the court system through trial (if necessary) after that date. In other words, if the case goes to trial in September 2020, there is probably no issue with the statute of limitations, because the lawsuit was timely filed.

How do you figure out the statute(s) of limitations for your claim(s)?

Each state sets its own statutes of limitation. Depending on the type of claim, different statutes of limitation may apply, and they may be calculated in various ways. Some statutes of limitation may be as short as 1 year; others may be 2, 3, 4, 5 years, or even longer.

Keep in mind there may be more than one statute of limitations for your claims. For example, you buy a house that has multiple construction defects that the seller failed to disclose during escrow. You decide to sue pro se / pro per for (1) breach of contract, and (2) fraud. Let's say that in your state, the statute of limitations for breach of contract is 4 years, but the one for fraud is only 3 years. In this scenario, the safer bet would be to file the lawsuit within 3 years so you do not blow the statute of limitations for the fraud claim.

To ensure you do not miss the statute of limitations, research the law in your state as soon as you begin considering a lawsuit. If you can afford to hire an attorney—or at least get free legal resources from a self-help center—you will probably be better off. Be sure to write the statute of limitations date in your calendar and set a reminder so you do not miss it. Even a one-day delay could kill your case!

Can the statute of limitations be extended?

Under certain circumstances, a statute of limitations may be "tolled," which is basically a fancy legalistic way of saying "extended." Read your state's laws and court rules to determine under what circumstances (if any) the statute of limitations may be tolled.

States have different grounds for tolling the statute of limitations. Here are some common grounds—but each state is different:

 

• A party is/was in the military and deployed overseas;
• A party is/was under 18 years of age;
• A party is/was mentally disabled or incompetent;
• A party is/was incarcerated;
• A party is/was in bankruptcy; or
• A party is/was deemed insane

Better to be safe than sorry.

Even if there are grounds to toll the statute of limitations, do your best to file within the statute's time period rather than assuming it will be tolled. For example, let's say you are 2 years into a 3-year statute of limitations, but you believe the statute should be tolled because your opponent was deployed overseas for six months. The safer choice would be to file before you hit the 3-year mark, rather than waiting 3.5 years and hoping that the judge rules in your favor that the statute of limitations has been tolled.

What if you file a lawsuit after the statute of limitations?

If you file a lawsuit after the statute of limitations expires, your opponent may file a motion to dismiss (in some states known as a demurrer). You will have the opportunity to oppose the motion and explain why you believe the statute of limitations has not expired (or has been tolled).

If your opponent wins the motion/demurrer, your case will be dismissed and the judge may order you to pay your opponent's litigation costs. If the judge believes your lawsuit was frivolous, he or she may impose money sanctions against you, even if you are representing yourself pro se / pro per.

As you can see, understanding the statute(s) of limitation for your case is extremely important. Failing to timely file your lawsuit could be disastrous to your case and a waste of your precious time and money.

The acronym for statute of limitations—S.O.L.—is the same as s**t out of luck. Coincidence?

Are you a new attorney or pro se / pro per party looking for help? Check out Justice Navigator!

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

Before you even consider filing a lawsuit, you must determine whether it makes financial sense for you to proceed. In this episode, we discuss some important factors to consider when evaluating the economic wisdom of proceeding with a lawsuit.

__________________

You are ready to file a lawsuit.

You have identified who (or what) to sue.

If you are representing yourself without an attorney (pro se or pro per) you have researched your state's law and determined what causes of action to include in your complaint.

You are ready to pull the trigger—prepare a complaint, file it in court, serve your opponent with it, and start your pursuit of justice.

There is just one step left . . . and it is an extremely important one! You have to determine whether it makes financial sense for you to proceed with a lawsuit.  You must balance your expected recovery (what you hope to get out of the lawsuit) against your litigation costs AND your opponent's ability to pay off a potential judgment.

You could have the best lawsuit ever—but if it is going to burn a hole in your wallet—it is probably not worth your time and money!

Common litigation costs you may encounter

Depending on your state, county, city, etc., court fees and litigation costs may differ. Here are some common expenses you may need to pay:

 

1. Initial pleadings: If you are a plaintiff, filing your initial complaint could cost anywhere from a few dollars to a few hundred dollars. If you are a defendant, the same applies to the cost of filing an answer or other responsive pleading. This applies whether you have an attorney or are representing yourself pro se / pro per.
2. Service: "Service" is a fancy-schmancy legal term that means "officially delivering legal documents." Some pleadings (e.g., complaints, subpoenas, and more) need to be served personally—meaning someone (other than you) has to personally hand them to the recipient. If personal service is required, you may need to pay a process server, sheriff, or marshal to serve those documents.
3. Postage: Most (if not all) jurisdictions allow litigation documents to be delivered by mail. E-mail is usually not an allowable substitute. One or two letters might not break the bank, but if your case involves a lot of documents, postage fees could add up.
4. Photocopying fees: Photocopying documents—even at a good rate of a few cents per page—can result in a very expensive bill.
5. Depositions: A deposition is a question-and-answer session where a party can ask her opponent questions. Depositions are transcribed by a court reporter (AKA stenographer). Depositions can be expensive, especially if videotaped. Deposition transcripts cost anywhere from $2-5 per page. A single transcript could cost hundreds of dollars. A video copy will cost extra.
6. Parking and travel costs: Court parking might not break the bank, but a few visits at $5, $10, or even $20 a pop could make a dent in your finances.
7. Trial exhibits: If your case goes to trial, you may want to prepare exhibits for trial (e.g., documents, blowups, posters, samples, etc.). These all cost money.
8. Expert witnesses: If your case requires an expert witness, that could cost hundreds of dollars per hour.  You will need to pay the expert for her time reviewing any materials, writing a report, and preparing for and testifying at depositions and trial. Some experts also require payment for travel costs, parking, mileage, and hotel accommodations, if necessary.

Check to see if you qualify for a fee waiver that would allow you to proceed without paying any (or some) court fees. Every jurisdiction is different, but this usually involves filing an application or motion to waive fees, which a judge then reviews and makes a ruling. You will likely need to produce evidence showing that you cannot afford to pay court fees (e.g., affidavit, declaration, bills, bank statements, etc.). 

As you can see, lawsuits can be very expensive, even if you save money on attorney's fees by representing yourself pro se / pro per. Do not let this list overwhelm you—I prefer to be overinclusive so you know upfront what costs you might incur. Sometimes surprises suck!

What if you can recover litigation costs?

At this point, you might be thinking to yourself: "I don't care about litigation costs because in my state, the losing party has to pay the winner's litigation costs, so I'll just win and get those expenses back!"

If your state allows you to recover litigation costs, that is great! But remember: you still have to win to recover! That means you will likely have to go to trial, prove your case, and obtain a judgment in your favor.

If you lose, you are out of pocket for all your litigation costs AND you have to pay your opponent's costs! Or, if you settle (as do 90-95% of cases), most settlements involve each party "eating" (absorbing) its own costs.

Even if you win and get your litigation costs back in the end, you still have to come up with the money to finance your lawsuit until the end. If you run out of money midway through your lawsuit, you may end up having to dismiss it.

Watch your wallet!

Determine whether your opponent can afford to pay you

Here is a rhetorical question: How happy would you be if you won a judgment—only to find out that your opponent is broke, unemployed, in serious debt, and cannot pay you a penny? Even worse, if the defendant files for bankruptcy, your right to collect the judgment will probably be terminated.

To avoid this disaster scenario, you should find out early on whether your opponent has the financial wherewithal to pay you if you win. Do some basic online research (e.g., Google, Bing, etc.) and social media (Facebook, Instagram, etc.). Is he employed? Does he drive a nice car? Does he appear to have disposable income (vacations, restaurants, property, possessions)?

You can also try searching public records in your state/county/city to determine whether he owns property, such as homes, cars, boats, etc. The more you know about your opponent's assets—or lack thereof—the better position you will be in to determine whether you are likely to get paid.

Researching a business's financial situation is a bit trickier than a person, but there are still things you can do. Drive past the business. If it is a retail establishment, restaurant, or store, are there people going in and out? Does it appear to be relatively successful? Does it own any equipment, vehicles, or merchandise? Does it have a legitimate website and social media presence? Read any reviews or articles you find relating to that business.

You can also search public records to determine whether the business or individual has outstanding judgments or liens (e.g., taxes, child support, alimony, criminal penalties, etc.).

There are also online services you could use to check whether your opponent has any prior or pending bankruptcies, lawsuits, judgments, liens by creditors, court orders for garnishment of wages, child support, or alimony. These services may even be able to tell you whether your opponent has property, personal possessions, and a job.

If you discover unpaid judgments and liens, that is a red flag. It means that other parties have had a hard time collecting from your opponent. You may very well run into the same problem…

One last word on this topic: Just because a person or business is broke does not necessarily mean pursuing a judgment is pointless. The future is uncertain. A person can eventually inherit money, start a successful business, or sell off property. Depending on the state, judgments may be valid for 10-20 years, and can often be renewed. The big question is: How long are you willing to wait to recover your money… if ever?

Conclusion

Before filing a lawsuit, be sure it makes financial sense. If you rack up expenses beyond what you recover, you are in a worse position than you would be without the lawsuit. Likewise, if you sue a person or business that is broke or contemplating bankruptcy, you will probably have a hard time enforcing your judgment.

Like many things in life, justice ain't cheap.

Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram.

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

You may not recognize the term exculpatory clauses; however, it may surprise you to learn that you have signed dozens upon dozens (if not hundreds or thousands) of them. In fact, you may have even signed one today!

You have "agreed" to an exculpatory clause if you: (1) had a valet park your car; (2) received medical treatment of almost any kind; (3) signed a residential lease; (4) gone skydiving; (5) checked your coat in at a restaurant; (6) swam in a hotel pool; (7) used software or applications and clicked "AGREE" to the terms and conditions; (8) attended a concert; (9) gone on a  cruise; and much, much more.

Exculpatory clauses are agreements that relinquish a person's right to hold another party liable for certain (or all) wrongful conduct. These clauses were once only used in connection with inherently dangerous activities (e.g. skydiving, white-water rafting, etc.) but can now be found in a seemingly endless array of activities, consumer products, and services.

Exculpatory clauses are everywhere… but are they enforceable? (SPOILER ALERT: YES… and NO)

In this episode, I interview Professor Scott J. Burnham, the Curley Professor of Commercial Law at Gonzaga University*, and author of Contract Law for Dummies, The Contract Drafting Guidebook, and Drafting Contracts. Professor Burnham guides us through the intricacies of exculpatory clauses and helps us understand the competing societal interests of freedom to contract vs. the right to hold wrongdoers accountable for their negligent, reckless, and intentional acts and omissions.

For further reading, please see Professor Burnham's excellent law review article on exculpatory clauses: Are You Free to Contract Away Your Right to Bring a Negligence Claim?, 89 Chicago-Kent Law Review 379 (2014). It is available at http://studentorgs.kentlaw.iit.edu/cklawreview/issues/vol-89-issue-1/

 Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram (https://www.instagram.com/thelegalseagull). 

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

** The views expressed in this podcast episode are those of Professor Burnham and not those of Gonzaga University or Gonzaga University School of Law.

A contract is a voluntary, private, legally enforceable agreement between two or more parties. To be valid, a contract must, atminimum, consist of an offer, acceptance, and consideration. In this episode, we discuss the formation of contracts, and delve into the following questions

• What is the difference between bilateral and unilateral contracts?
• What is an "offer?"
• When does an offer expire?
• What constitutes "acceptance?"
• What is "consideration?" (HINT: it has nothing to do with being considerate!)
• When is consideration adequate?

Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram. 

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

Monumental advances in medical technology have made it possible for human life to be extended dramatically, often with unintended consequences. The ability to suspend death artificially (e.g. hydration and feeding, mechanical ventilation, surgery, etc.) creates a painful dilemma. How long do you want to live?  What means do you want your doctors to employ to keep you alive? What are the parameters doctors and hospital staff should follow in determining when to refuse (or modify) care?

Without a living will, all of these decisions could end up being made by a doctor, a nurse, or even a judge.

A living will is a legal document that allows a person who is incapacitated (e.g. vegetative state, coma, permanent unconsciousness, brain injury, etc.) to specify the type and scope of care he or she wishes to receive. In this episode, we explore the importance of living wills in ensuring that our final wishes are obeyed.

Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram. 

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

Are you considering applying to law school? Have you been accepted to law school and are now considering whether to enroll?

Deciding whether to attend law school is one of the most important decisions you will make. Regardless of your ultimate decision, there are many factors to consider. In this episode, we discuss (in great detail), and with many attempts at humor (some successful), whether law school is right for you.

In this episode, I discuss nine things I learned watching my dad fight cancer:

1. The importance of estate/medical planning: advanced health care directives, wills, health care proxies, and life insurance.

2. Life is unpredictable and (sometimes) short.

3. Live every day as if it is your last.

4. Tell your loved ones that you love them- every day.

5. The importance of humor.

6. Love has its own language.

7. There is no alternative to hope.

8. Doctors and nurses don't know as much as you think they do.

9. The distinction between quality of life vs. quantity of life.

 

In the span of less than two weeks, grand juries in Missouri and New York voted not to indict police officers for the deaths of two unarmed black men in unrelated encounters. What followed was a chorus of indignation by many Americans, including prominent public figures. Accusations abound of racism, injustice, and inequality. In today's episode, I interview Michael F. Bachner, a renowned criminal defense attorney who has tried many high-profile cases, including organized crime, labor corruption, narcotics, white collar crime, weapons charges, and homicide. Mr. Bachner answers these questions, and more:

– Was there something fishy about the grand jury proceedings in the Michael Brown case?

– Did racism play a factor in the grand juries' decisions?

– Should the prosecutor in the Brown case have recused himself in light of his close family connections to law enforcement?

– What was the evidence presented at the Michael Brown grand jury hearing?

– Was Officer Wilson's testimony plausible?

– If Officer Wilson had been indicted, was a conviction at trial likely?

– What were the factual differences between the Michael Brown and Eric Garner cases?

– Did the officers in the Eric Garner case use excessive force?