The Demand Letter That Cannot Go Out As Written
You are a PLS at a four-attorney plaintiff's personal-injury firm. At 4:15 p.m. on a Thursday, the supervising attorney hands you a 14-page draft demand letter to a liability insurer and says, “Clean it up and get it out tonight - we're already late.” Four problems are visible on a first read: (1) the draft says “please find the attached police report,” but no report is attached, and the file contains only a two-page incident summary written by the client's neighbor; (2) it states “total medical specials of $18,450,” while the provider ledger totals $17,290; (3) it says the client “is the victim of the defendant's gross negligence,” although the attorney's own case notes reject that theory because punitive damages were never pled and your state requires a pretrial motion before punitive damages may be sought; (4) it gives the adjuster 30 days to respond, yet the statute of limitations runs in 47 days and no complaint has been filed. The letter is otherwise clean and already bears the attorney's signature.
1. Before anything is transmitted, how do you handle the four discrepancies, and how do you raise them with an attorney who has told you to simply send it?
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Sort the items by who actually owns the decision, then go back with a short written query list rather than a vague objection.
Correctable errors (yours to fix, but confirm): the attachment reference and the ledger figure. Verify the ledger against the providers' statements line by line, then correct the total to $17,290 and either attach the incident summary with an accurate description (“incident summary prepared by a neighbor,” not “police report”) or delete the reference.
Attorney decisions (flag, do not decide): the “gross negligence” characterization and the 30-day response window. Both are tactical and have legal consequences the attorney must own.
How to raise it: send one compact email or a marked-up draft: “Four items before this goes out - 1 and 2 are typos, I can fix now. 3 and 4 I won't change without your direction because they affect what we're claiming and the limitations clock.” Cite the file page for each. Proposing a specific alternative (“suggest: 'failed to keep a proper lookout'”) makes it easy to say yes. Log the date, time, and the attorney's direction in the file. Do not silently send a letter you know misstates a fact - an inaccurate demand damages credibility with the adjuster and can be used to impeach consistency later.
2. Rewrite the “gross negligence” sentence and explain the drafting principle behind your rewrite.
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Rewrite: “Our client's injuries were caused by the defendant's failure to maintain a safe following distance and to keep a proper lookout in heavy traffic on Route 9.”
Principle: a demand letter is advocacy, not a pleading, but it should assert facts and let the recipient draw the legal conclusion. Describing conduct as “gross negligence” does three bad things here: it claims a legal theory the case notes reject; it implies a punitive-damages demand the complaint cannot support without a pretrial motion; and it hands the adjuster a reason to discount the whole letter as inflated. Specific, provable conduct (“failed to brake despite 200 feet of clear sight line”) is harder to dismiss than a label.
The same logic governs “clearly,” “obviously,” and “egregious” - adjectives add no settlement value and invite argument. Keep the tone firm and factual, keep the money demand and deadline accurate, and let the medical records and photographs carry the weight.
3. The attorney replies, “I don't care, send it as-is, the adjuster won't read it that closely.” What are your options and obligations?
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You may not personally transmit a letter you know contains a false statement of fact to a third party. Model Rule 4.1 prohibits a lawyer from making a false statement of material fact to a third person, Rule 8.4(c) reaches dishonest conduct, and Rule 5.3 makes the lawyer responsible for your conduct - which means the firm cannot direct you to do what the lawyer could not do personally.
Practically, take these steps in order:
- Clarify once, in writing. Confirm the attorney understood the two items are factual errors, not style preferences. Attorneys often say “send it” without registering which sentence is wrong.
- Ask for a compliant alternative. “I'll send it the moment we change the specials figure to $17,290 and the attachment sentence - two minutes of edits.”
- Escalate if the firm has a designated supervising or managing attorney, framing it as risk management, not insubordination.
- Document. A file memo noting the instruction and your objection protects you and the firm.
If the direction stands, the letter is the attorney's signature and the attorney's exposure - but your hands should not be the ones pressing send on a knowingly false statement. Ask the attorney to transmit it personally, or ask to be reassigned from the task.