Why litigate via correspondence?

Litigation lawyers are expected to fight hard to defend their clients’ interests. This usually manifests in lengthy letters with a strident tone, and sometimes it also turns into an artillery match – both sides bombard each other with correspondence without ever having their case theories come into contact with each other and reality. My take? It’s usually not productive, or even counter-productive.

Letters sent between solicitors usually set the stage for the dispute between the parties. It lays out the positions that parties are likely going to take if the dispute escalates into adversarial proceedings. This gives the solicitors an idea of what the issues are going to be and what preparation is required to convince the judge or tribunal to make a favourable decision. I’m going to argue that the utility of pre-action correspondence stops here and anything past the first demand and reply is not productive:

1.There is no point on trying to persuade by written debate.

As advocates, our inclination is to persuade or make the other party look less persuasive. But if your arguments are only going to be seen by the opposing party who is not in a mood to compromise, it is not likely to have that persuasive effect. I would like to hear stories of how the opposing solicitor backed down after a few well-written letters, but I suspect that such experiences are few and far between for a good reason – how many lawyers are going to tell their clients to back down because the other side has a case that looks increasingly stronger with each succeeding letter?

2.”Give him rope to hang himself”

Generally lawyers try to fit the facts within a handful of requirements (known to us as “elements”) to create an acceptable narrative (known to us as “causes of action”). Once we satisfy these requirements, it’s usually not necessary to go on further.

The longer the narrative gets, the more difficult it becomes to keep track of the details. Saying more than what is necessary makes an advocate’s job difficult in the future because he will have more facts to reconcile and rearrange to preserve a believable narrative and avoid internal inconsistency. Of course, some cases are complicated because of a long history or due to the involvement of multiple parties, but saying too much sometimes gives the other side ammunition and can backfire on the verbose party.

 

3.It makes later compromise difficult.

Occasionally a client may give specific directions to say certain things in a certain manner, but usually the lawyers set the tone and pace of the correspondence. An aggressive tone usually invites a defensive response, and for those who believe that the best defence is a good offence, an equally aggressive retort.

Perhaps lawyers eventually pick up the ability to quickly change attitudes depending on the setting, but parties may not be able to immediately overcome the cognitive dissonance of having to amicably compromise with a difficult adversary. Many lawyers wish to avoid having to deal with their client’s emotions but it’s wishful thinking, even for commercial cases. Raising the temperature now means having to bring it down later, and additional (or even unnecessary) work for counsel.

Conclusion? There is a time and place for everything, and arguments should be reserved for the finder of fact. While correspondence is useful to signal positions, continuously lobbing letters and emails at each other is not likely to create any progress and may even hobble later efforts at closure. War of attrition are unhelpful to clients who want to move on, and counsel who want to solve problems.