A Few Tips on Writing to Opposing Attorneys

January 2004

Writing to opposing counsel is never easy. Examples of poorly written correspondence can help point out writing errors. And tips on how to avoid being stodgy, arrogant, and overbearing are essential to correcting poor writing habits.

by Gary Blake
The Communication Workshop

In claims, you are expected to show a friendly face to the customer. You're expected to cajole physicians and others into sending you information about a claim. You have to deal forcefully with opposing attorneys ... and gently with insurance commissioners who ask you to account for the way you handled a particular case.

Of all these communications, perhaps none is as important as your way of stating your ideas to opposing lawyers. A well-crafted letter that remains clear and factual, instead of rambling and Rambo-like, is likely to help you sell settlements, maintain relationships, and handle claims more amiably. For your claims department, this is money in the bank.

The following letter (names, of course, have been changed) to an attorney shows some of the pitfalls in this type of communication.

January 5, 2004

BREEN & EVERETT, LLP
ATTORNEY KAREN BREEN
PO BOX 456
STANTON, MD 12345

RE:	Our Claim Number:	57638T47R34
	Our Policy Number:	T-67589
	Our Insured:	Hart Smyth
	Date of Loss:	November 30, 2002
	Your Client:	Sarah Barton

Ms. Breen, I have received our letter of October 30, 2003, along with the demand proposal for your client, Sarah Barton. After review of the medical information provided, I would like to extend an offer of $1,700.00. My offer is based on the following:

Ms. Barton did not seek medical attention until 21 days after the accident. At that time, she was diagnosed with a cervical strain. X-rays were taken and were essentially normal with the exception of some calcification which was present in the past. On April 12, 2003, Dr. Stevens released your client stating that she had full range of motion of the neck and no longer had headaches. He felt that she had healed 100 percent.

In regards to the wage loss, I do not find anything in your client's records that shows a doctor had restricted her from working. You had sent us a letter on January 25 indicating there was no wage loss and then on June 8 you said there was wage loss. It was also stated in the records that on December 29, 2003, the patient had resumed her work which included moving furniture. Therefore, we do not feel we owe any wage loss to your client.

Again, based on the review of the medical information on your client, I wish to offer $1,700.00. We have a lien from Longley Bank in the amount of $913.32 which we will reimburse directly to them. Please review with your client and advise me of your decision.

Respectfully,

ACME Insurance

Mistakes and Analysis

Below is an analysis of this letter, including commentary drawn from similar letters I have seen in my onsite seminars in "Claims Writing." These comments, on both writing and insurance issues, aim to help you spot pitfalls in your own letters and those of your colleagues.

Format Properly. There are a few format issues to be discussed. Why, for example, did the writer use all CAPS in the inside address? Some companies require this because the letter will be sent in a see-through envelope, and this is what the post office people like to see. To a customer, however, the all caps detracts from the personal quality of a business letter.

In the inside address, we expect to see Ms. Breen's name first (no need to call her "Attorney Karen Breen"). If she has a title (e.g., Managing Partner), that title would be the second line of the inside address.

The "RE" line, being a bit lengthy, could be placed to the right side of the page. The advantage of this is that the reader glances at the information and proceeds with the letter, instead of dwelling on the "RE" line.

Following the "RE" line, there should be a salutation (Dear Ms. Breen:) and not just "Ms. Breen" Some people avoid "Dear" in letters but "Dear" carries with it no particular implication of intimacy. To dispense with dear, I believe, is to sound abrupt.

The closing, "Respectfully" always strikes me as unnecessarily solemn and off-putting. Why not just go with "Sincerely"?

Watch Your Wording. The first line (which includes a typo—the "y" in "your" is missing) talks about receiving the "demand proposal." This is the type of phrase that comedian George Carlin would have fun with: Is it a "demand" or a "proposal?" One word seems fierce, the other gentle. When the writer writes: "I would like to extend an offer of $1,700," he may not realize that the word "extend" can also imply that a previous offer is now "extended." Just write: "I am offering $1,700."

Some other words and phrases to watch out for:

"Calcification which was present in the past." First of all, the writer wants "that" not which because he is specifying.
"Present in the past" ought to read "preexisting"

Beware of Antiquated Phrases and Hedge Words. Here are some of the phrases used in this letter to watch out for in your own.

"Stating" (saying)
"In regards to" (regarding)
"It was also stated" (passive: who did the "stating"?)
"Indicating" (a weak word for "showing")
"Advise me" ("let me know" is less formal)

Watch Your Tone. This letter is not arrogant, merely a bit vague in its pinning the $1,700 offer to certain measurable specific expenses (e.g., X-rays and treatment). It makes a good case for not paying wage loss. In other letters to attorneys, the writer sometimes is unnecessarily aggressive. Here are four statements, taken from actual letters to attorneys, that I feel go overboard in their emotionality.

"You can rest assured that with all the old damage on the car, no dealer would offer you clean value for your car and they would still take the deduction for all the old damage." Can you hear the smarmy tone of "rest assured"?
"Keeping in mind that our insured made a dent the size of a small grapefruit in your client's bumper, I must ask you, what could possibly have been your client's injuries?" The "I must ask you" and the "what could possibly" are so clearly arrogant that anyone would take offense. Your job is to work with the opposing attorney—not to draw a line in the sand.
"Given the substantial income your client produced subsequent to the accident, we believe your allegations of future lost wages are nothing more than smoke and mirrors." This is so blatantly accusatory that it would alienate anyone. Why not just write: "Please send me documentation of your client's wages for the period following the accident"?
"Do you think a jury will find it odd that there were no indications of facial injuries immediately after the accident, yet she now contends that she has problems with her teeth and ringing in the ears?" Putting this question in terms of what a jury might think is saber rattling. It is provocative.

Avoiding an Adversarial Tone

Here are a few tips on tone to help prevent this type of inappropriate tone.

Prefer positive to negative words. Instead of "John has neglected to send the documentation," how about "John has not sent the documentation."
Don't write when you're angry. You have no control over to whom your communication will be sent and what consequences might develop.
Don't use value judgments designed to make readers feel bad about past mistakes. Instead, try to motivate your reader to improve behavior in the future.
Apologize completely. Don't write "I'm sorry this happened, but you shouldn't have..." Instead, apologize without any ifs, ands, or buts.
Empathize before stating an opinion. Spend a sentence or two reflecting the reader's feelings, empathizing with how the opposing attorney might view the case, for example. Do that before launching into your own views.

Conclusion

Writing to an opposing attorney is never easy. You must weigh your words as carefully as any professional writer might in writing an article or essay. Your job is not just to win court cases, it is to maintain relationships and sell your settlements so that you never even get to court. This skill doesn't get much play in college writing courses. So, in addition to training your colleagues to master those important technical insurance skills, you might want to teach them the art of writing to lawyers without falling into the stodgy, arrogant, and overbearing writing habits that, sadly, most lawyers embrace and perpetuate.

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