Most personal injury cases settle. At Larson & Gallivan, more than 9 out of 10 of our personal injury cases are settled without the need of going to court. The defendant who injured our client realizes they are liable, and their insurance company agrees to settle the dispute. A demand letter typically kicks off the negotiation process, and it is an integral part of any personal injury case. In this article, ourpersonal injury lawyers in Vermont review the purpose of the letter and its critical parts.
Why We Use Demand Letters
Lawyers typically draft a demand letter after they agree to represent a personal injury victim. A person who suffers injuries in a car wreck or other accident can seek financial compensation from the person responsible for their injuries. A lawyer drafts a demand letter and sends it to a potential defendant.
A demand letter serves many purposes. First, it informs a defendant and their insurance carrier that you believe the defendant is liable for the accident. In Vermont, personal injury cases are based on liability, which essentially means responsibility. The person or business responsible for your accident should pay you compensation.
Second, a demand letter explains why you believe the defendant is liable. Without this explanation, you can’t expect a defendant or their insurance company to take your request seriously.
Third, we use demand letters to start the negotiation process. The letter typically includes a demand for compensation—hence the name, “demand letter.” The language might differ from letter to letter. However, most demands letter identify a number the injured victim would agree to settle the claim for. It’s common to come right out and say, “We are willing to settle this claim for $100,000” or words like that.
When Do We Send a Demand Letter?
The timing depends. We can send a demand letter before filing a lawsuit. After all, we are informing a defendant (and their insurance company) that we could file a lawsuit, so they should take our claim seriously. There’s no legal requirement that you actually have filed the lawsuit before sending a demand letter.
Everything depends on the facts of your case. We might send a demand letter a year after the accident.
The Essential Elements of a Demand Letter
Now that you know the purposes of a demand letter, let’s look at the critical parts. Most demand letters will contain the following:
- Narrative about what happened. We need to explain why the defendant is probably liable for the accident and your injuries. This means we provide a narrative about what led up to an accident. Suppose you are hurt in a T-bone collision in an intersection. We will explain how you (our client) stopped at a red light on the intersection and only proceeded through once the light turned green. Then the defendant ran a red light and slammed into the side of your car.
We might mention different pieces of evidence in support of our claim, including the identities of witnesses who observed the accident or any video recordings.
- Description of your damages. A personal injury case is not a criminal matter. Instead, the goal is to get the defendant to pay compensation. We need to explain what damages you suffered in the accident.
The letter can contain a summary of your losses and injuries. We might add copies of your medical bills and other supporting documentation in an appendix.
We also include pain and suffering and emotional distress damages as part of your demand. The goal is to give the defendant a good idea of how the accident has harmed you.
- Demand for compensation. We don’t describe your damages for the joy of it. Instead, we are laying the groundwork for our demand: essentially, we demand the defendant pay our client a certain amount of money to settle the case.
If they agree, then we can draft a settlement agreement, which includes a release of claims. In exchange for the settlement, a victim gives up the right to seek more compensation from this defendant, including giving up the right to file a lawsuit.
Our demand letter usually contains a high number. We believe in starting high, because that gives us room to negotiate down.
- Deadline for a response. We inform the defendant that we want to hear from them by a certain date. Ideally, a good demand letter gives them enough time to investigate on their own and assess liability—but not too much time.
- Intent to take other action. We also come out and tell the defendant what we intend to do if they don’t meet the demand for compensation—which is usually to file a lawsuit. Of course, insurance companies (which get a copy of the letter) know all this, but it’s still an important part of the demand letter.
What Happens after You Send a Demand Letter?
Ideally, the defendant and their insurance carrier take the claim seriously. Even better, they would immediately accept liability and agree to pay the amount of compensation demanded.
Usually, however, the other side negotiates. There are usually many “sticking” points that are in dispute:
- Liability. Vermont has a modified contributory negligence rule. (12 V.S.A. § 1036.) If you are more than 50% at fault, then you can’t receive any compensation. Any share of fault less than 50% will reduce your compensation by a like amount. The defendant’s insurance carrier might claim your own negligence contributed partly to the accident. As a result, they offer less.
- Damages. The defense might accept liability but contest the damages. Often, they want to pay less, so they claim you aren’t really hurt. Pain and suffering damages are a common source of dispute.
A defendant’s insurance carrier might simply reject the demand or, more likely, make a counteroffer.
Speak with a Vermont Personal Injury Lawyer
A well-drafted demand letter can turbocharge your personal injury case. Larson & Gallivan Law has won millions of dollars for injured clients, and we can use all our experience to help your case. Contact us to schedule a free consultation.
