TOPIC

WRITING LETTERS
AND OTHER
INFORMAL
DOCUMENTS

PART 1
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INTRODUCTION

Over the next two weeks we will look at, think about, and try to draft various types of
informal legal documents. When doing so you will need to use many of the
techniques that were discussed in the seminars, notes and reading in previous
weeks.

The previous two weeks have had a lot of information. However, in the next two
weeks there will be less information, and more emphasis on you writing, thinking,
correcting, editing, and by doing so getting better at drafting.

WHAT WE WILL COVER

We are going to look at how we go about drafting various types of informal

documents. By ‘informal’ I mean documents that don’t have a formal structure, as
opposed to more formal documents such as contracts, pleadings, statements, etc.
We will get to these more formal documents later in the course.

We will be looking at drafting:

 various types of file notes;

 court attendance notes;
 emails; and
 various types of letters.

In all of this drafting we should always remember:

 to keep the language clear and concise;

 to be mindful of who will read the document (who the audience is or could be);
and
 to understand and carry out the purpose of the document.

FILE ORGANISATION

Before starting on drafting, it is useful to make some points about file organisation.
Proper organisation of a client file is central to the running of an effective legal
practice. Also, lawyers keep full and complete files for many of the same reasons
that lawyers write documents. They do so in order to have an accurate record of

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what has gone on. This is both in the interests of the client, and in the interests of the
lawyer.

Various law firms, and various government and business legal departments, may
have their own ways of organising files. If you are part of a large organisation then
that organisation will, or should, have guidelines as to how exactly it wants its files
and information and documentation kept. If so, you will need to follow such
guidelines.

However, if you are a lawyer in private practice, or even a government or corporate

lawyer, then there are some important points on file keeping that you should be
familiar with.

 Your file must make sense not just to you, but to anyone else who might
read it. This is especially so if you are a junior lawyer. So make sure you write
clearly, and provide all the necessary information.
 The file should be a complete record. This means that someone who picks
up the file should be able to see clearly from the file EVERYTHING that has
happened on the file. So if the client calls, you make a note of that and put it
on the file. If the client comes in a collects a letter, make a note confirming the
client has the letter. Keep a copy of any letter that you send out, and put any
letter that you receive on the file. If you have a meeting, put your notes of that
meeting on the file.
 One file for one matter. This might seem obvious, but you should avoid
having a file that deals with more than one matter for the same client. This
can lead to a lot of confusion.
 The file is organised in (reverse) chronological order. The oldest
documents are at the back of the file, and the newer documents are at the
front of the file. This means that new documents are added on top of existing
documents. So when you open the file you see the newest documents first,
and underneath those are older documents.
 Correspondence, file notes etc are retained together. You need to have
some way of keeping documents together. If you don’t then your file will very
quickly become disorganised. For this reason you need to make sure that
documents are physically retained together. This might be done by using a
metal pin or a binder that physically goes through the documents. It is a good
idea to whole punch documents and place them in chronological order in a
folder.

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  Keep court documents in a separate bundle or folder. In litigation matters
many lawyers will keep a separate bundle of court documents in the client’s
file. Again, it is a good idea to whole punch these documents and keep them
on a metal pin or clip. These documents are again arranged in chronological
order, with the newest on top. I try to ensure that I only keep copies of the
Court documents that are actually filed. Because of this my files will contain
only documents or copies of documents that are fully signed and dated, and
have the seal of the Court on them. Avoid keeping duplicates of documents,
as this makes the file harder to read. Also, avoid keeping unsigned or
unsworn copies of documents on the court documents file. If you do then
someone else who picks up the file will find it difficult to know whether or not
the document has been sworn, or filed with the Court.

Basically, you want your court documents folder to be the same as what the Court
would have. So place in this file or folder the actual court documents, and orders
made by the court. Don’t put in file notes about going to Court. File notes are not
court documents.

When I am drafting and editing court documents, or have a draft that I am sending to
a client for approval, then I will keep that document on the normal correspondence
pin, as it isn’t yet a court document.

 Avoid keeping draft copies and duplicates. Generally, there is no need to

keep drafts of documents, once the final has been completed. Doing so
makes the file longer, and makes it hard for someone looking at the file to
work out exactly what the final version of a document is. However, in some
cases, such as when drafting complex pleadings or a contract, you may want
to keep some drafts, as evidence of time spent on producing the document.
However, these days electronic copies of earlier versions of documents can
be kept. You only need on file a hard copy of the final version of a document.

Keeping duplicates of the same document (or not getting rid of duplicates) also
makes the file larger than it has to be, and thus makes it harder to access the
information in the file. So don’t keep duplicate copies of documents (unless they are
there for a specific reason – for instance, for signing by the parties to a transaction).

If you follow the above guidelines your life as a lawyer will be a lot more orderly, and
you will be a lot more effective.

DRAFTING FILE NOTES

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Talking about file notes in a course on legal drafting might seem mundane. What
could be so difficult about drafting a file note?

To be honest, file notes are not difficult to draft. However, it is important that when
you write a file note you put into the note all necessary information. For instance, I
have often seen trainee and junior lawyers write a file note with what appears to be
all of the necessary information, but forget to put a date on the note. With no date the
note may cause much confusion.

As a rough guide, file notes should contain the following information:

 the date.
 The name of the matter. Often, file notes are written on a pad with many
other notes, and might not go on the file straight away, or might go on the file
and later be removed. Put the matter name on the note and you will always
know what matter, and what file, it relates to.
 The name of the person making the note. This might be at the top, or the
bottom of the note. Often initials will do, providing it is clear who they relate to.
 Where the event that you are recording took place. If it is in the office,
there is probably no need to state that. But if for instance it was in Court, then
you need the details of which court. Or if you have a meeting outside of the
office, write down where the meeting took place.
 If relevant, the time. For instance, if going to Court, then you may want to
record the time you left the office, and the time you got back to the office. This
is especially important if you charge your client by the hour. If you are having
a meeting then the time that meeting takes place, and how long it goes for,
might also be useful to record.
 Who else was there. For instance, if you are speaking on the phone to the
client, then you might write “telephone conversation with client”, or “tc with
client”. If going to Court then you might write “attending Supreme Court, Court
5, with client”. You would also write down the name of the judge. If you have a
meeting, write down the names of everyone at the meeting. This can become
important if there is later a disagreement about what was said at the meeting.
 What happened. Yes, it’s important to write down the important bit too.

Do the file note at the time. It is always best to write things down when they are fresh
in your mind.

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Also, some firms and government offices have standard forms that you use or fill in
as file notes, with places for the various pieces of information to be put in. Such
forms can be useful, as they prompt you to put in all details. If your office has these
forms, you should use them.

So why are you doing all of this? Your file needs to be a complete record, and to
make sense to anyone who might read it. That person might be another lawyer in
your office, or your employer, or an inspector from your law society. Of it might be a
lawyer from a different firm, should your client change lawyers. So proper
organisation, and proper recording of all things that are relevant to the file, are very
important.

Also, if you are making notes of a meeting then keeping a complete and
contemporaneous account of what was said at that meeting can be very important.
Take for instance the case of the alleged confession in 1996 by Lance Armstrong in
relation to the use of performance enhancing drugs. In a Court case in 2005, Betsy
Andreu testified against Armstong in relation to the events in 1996, stating:
I said, I think we should leave to give you your privacy. I said that to Lance. And
Lance said, that's OK. You can stay. And I turned to Frankie and I said, I think we
should leave. And Frankie said, no, Lance said it's OK. We can stay. And so the
doctor asked him a few questions, not many, and then one of the questions he asked
was... have you ever used any performance-enhancing drugs? And Lance said yes.
And the doctor asked, what were they? And Lance said, growth hormone, cortisone,
EPO, steroids and testosterone.1
The confession was alleged to have occurred in a hospital room, with a number of
witnesses. Later, various witnesses gave differing accounts of what had happened,
and Armstrong strenuously denied the claim. These allegations were later used to
defend a Court case where Armstrong sued to recover a promised 7.5M US dollar
bonus due to him for winning the Tour de France bike race 6 times. Armstong was
successful in recovering those monies. Perhaps a different outcome would have
occurred had Betsy Andreu made a written record in 1996 of exactly what she
heard?2

1
Tom Goldman, ‘Ex-Friends say Armstrong Admitted Drug Use’,
http://www.npr.org/templates/story/story.php?storyId=5508863
2
In 2012 Armstrong admitted to taking performance enhancing drugs throughout his career. He was
subsequently stripped of his 7 Tour de France victories. Following Armstong’s public confession he
was in February 2015 ordered to repay to SCA Promotions the USD $10 million payout – see
http://www.abc.net.au/news/2015-02-17/lance-armstrong-loses-ruling-must-pay-back-13-million-
dollars/6125146 . SCA promotions are in the process of trying to enforce that arbitration award – see
http://thescoopblog.dallasnews.com/2015/07/attorney-wants-judge-to-force-lance-armstrong-to-repay-
dallas-sports-promoter-10-million.html/

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Here are some examples of some common types of file notes.

Example file note of a telephone conversation.

12 August 2017

Taboulie v. Filaffal

tc with client 7746331 (it is good to always write down the number that you call
someone on, or that they call you on,as it makes it easier next time to find the
number)

I told client that we will have the claim completed and ready for signing tomorrow. I
will call client when it is ready.

LAS

Example file note of attending Court

23/9/17

Duke v Garae

9.30 Attending Port Vila Magistrates Court for call over (30 mins)

Before: Magistrate Moses

Clainant: LAS with client

Defendant: Joe Wingy, solicitor

Defendant sought adjournment to file defence. Matter adjourned to 5 November

2017 for further callover. Client advised of new date.

LAS

Another example:

Song v Peters 27 Sept 2017

Attending Supreme Court at Port Vila (Dumbea Hall)

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Cor: Spear J in Court 2 (‘Cor’ is short for the latin ‘corum’, which basically means
who the matter is before: modernize if you like)

Pl: L Sackett (an abbreviation such as ‘Pl’ for plaintiff, or ‘Def’ for defendant
can be used)

Def: in person

Discussed matter with defendant. Agreed to adjourn matter for 4 weeks so def could
find lawyer and file defence. Ct made orders accordingly. Listed for further mention
on 25 October 2017 at 10.00 in Chambers at Sp Ct Registry. Costs reserved.

And then you tell the client about it:

Song v. Peters 27/9/17

tc to client ph 5577898

Spoke with client’s wife, Meriam. She told me that client is away until next
Wednesday. Told her that I went to Court two days ago, and that next Court date is
25/10/14, and that her husband has to be in Court in Port Vila on that date. Asked
her to have him call me ASAP, as it is urgent that I speak with him.

L Sackett

DRAFTING EMAILS

Increasingly, lawyers are using emails to correspond with clients and with other
lawyers, as well as with the Court. The advantage of an email is that the message is
sent basically straight away, and can also be produced quickly on the computer. This
can help in getting a prompt response from the person that you are writing to.

However, you may have noticed that in the same way that emails are produced and
sent quickly, they are also read and often dealt with quickly. Also, if they aren’t dealt
with at the time then they can be quickly forgotten.

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Because of these aspects of the email, here are some suggestions about writing
emails as a lawyer:

 Give your email a subject. This acts like a heading in a letter. Use a subject
that briefly identifies what the email is about.
 People often only read the first part of an email. I have certainly done this,
and I am sure that many of you have as well. You read the first part of an
email, and then respond quickly. However, you may not have read or properly
read the rest of the email, which may contain further important information.
So:
o when reading email, try to read all of it;
o watch out for email strings, when sometimes you might miss a
message sent by the other side;
o when writing emails, don’t make them too long. If you have something
substantial to say, then write a letter, and then send that letter as a pdf
attachment to your email.
 Avoid dealing with different matters in the same email. Generally it is
better, when writing to a client, or to another lawyer, to deal with only one
matter in an email. Just as you would write a separate letter on each matter,
write a separate email. If you don’t then there is a danger that part of your
email will be overlooked.
 The need for emphasis. Just as people don’t carefully read emails, people
can also easily miss the point that you are trying to make in an email. So the
use of capitals, and bold type, can be very useful in emails, and is often used
more than when writing letters.
 Ending. Emails are less formal than letters, so your ending is likely to be less
formal. For instance, you might use ‘Regards’, and then your name, or
something like ‘Best wishes’, and then your name. Also, make sure that,
unless you have an automatic signature at the end of your email with all of
your firm’s details, that you put at least your phone number at the end of the
email, and ideally the full name of your firm and its contact details.
 Make sure you read carefully over what you have written before you
send the email. There is a tendency with emails to simply type and send.
However, as a lawyer it is important to avoid silly spelling mistakes, and
writing things that just don’t make sense. So just take a few more seconds to
read what you have written BEFORE you send it, and edit as necessary.
Doing so can save much embarrassment.

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  Printing and filing emails. This can become difficult, especially as you can
get very long email strings. If you keep hard copy (paper) files, then you will
want to print off and keep on file copies of emails. But what if the email is
simply a brief note chasing a response to your earlier email? Something like
“?????”. Use your discretion. If you print off copies of everything you send
then your file will soon become full of repeats of parts of the email string.
Sometimes it is best to just print a string of emails off every few days, and use
that as your hard copy record. Alternatively, just print the last page (most
recent page) of the email string, and put that onto the correspondence bundle
in your file.

Lastly, technology, and the use of technology, is constantly changing. So the way
that we use email is also changing. This means that these guidelines will also need
updating from time to time. Have you any other suggestions for writing emails?

DRAFTING LETTERS

There are many types of letters that a lawyer writes. Some letters can be very short
and straight forward, while others can be very long and complex.

So what types of letters do lawyers write? Have you ever written a legal letter, or had
a legal letter sent to you? Has any member of your family ever received a letter from
a lawyer? If so, what type of letter was it? What was the letter about, and what
impression did it create?

Letters that lawyers write could be grouped into the following categories:

1. simple letters (perhaps designed to record an event, or to chase up action);

2. letters serving or delivering documents;
3. letters making a demand;
4. letters refuting a claim or demand – letters of denial;
5. letters confirming a client’s instructions, and the basis upon which the lawyer
will act for the client (eg how must the lawyer will charge);
6. letters giving advice;
7. letters making offers of settlement; and
8. letters seeking alterations to commercial and other documentation.

These letters have different objectives, and will be sent to different people. For
instance, a letter of advice would be sent to your client, while a letter of demand

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would be sent to the person who owes your client money, or ran into your client’s
car. So although these letters are all letters written by lawyers, each letter will have a
different audience, and each letter will have a different purpose. When we are
drafting legal letters we will always have to be aware of who our audience is (or
might be), and what the purpose of the letter is.

However, all letters written by lawyers should aim to:

 be accurate and complete;

 be simple, clear and concise;
 use plain English and contemporary vocabulary wherever possible;
 be as brief as possible while still conveying the required information;
 not be ambiguous;
 be direct: use short sentences and the active voice where possible; and
 use an appropriate tone.

THE FORMALITIES OF A LEGAL LETTER

With every type of letter that a lawyer writes there will be certain formalities that will
be part of the letter. We will look at these formalities first, before looking at how we
would draft these various types of letters.

Legal letters, like business letters, have certain basic things in them. When you write
a letter make sure that it has all of these things. That might sound simple. However,
when teaching in the Law Clinic program it was not uncommon to see students draft
letters and forget to put on the letter something basic, but very important, such as the
date. Imagine if a letter goes out without a date? What would be the effect of that if
the letter was a letter of demand asking the recipient to do something within 14 days
of the date of the letter? So all of these small things can be very important.

Every legal letter should clearly identify:

 who the sender is;

 the date on which it is sent;
 the name and address of the intended recipient; and
 a heading that quickly identifies the matter.

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Also, it is good practice to include your firm’s reference for the matter, and the
reference of the person, firm or organisation that you are writing to. 3 The letter
should also contain appropriate salutations, and an appropriate ending.

So a typical legal letter would contain:

 your address (sometimes a printed letterhead);

 references of the parties;
 the date;
 the full name and address of the person you are writing to;
 a salutation or greeting – eg Dear Ms Smith (consider what is appropriate);
 a heading (in bold or underlined);
 an introductory sentence or opening (let the recipient know in the first
sentence why you are writing to them);
 the substance of the letter (always keep in mind your audience and your
purpose);
 a concluding sentence or paragraph, which might refer again to what is to
happen next; and
 an ending (Yours faithfully or Yours sincerely, and a signature).

Sometimes these things are not as straight forward as they may at first seem. So
here are some further techniques and suggestions.

THE NAME AND ADDRESS OF WHO YOU ARE WRITING TO

Sometimes this will be clear. For instance, if you are writing a letter to your client,
who is a person, and you know where he or she lives, then it is not difficult to know
who to address the letter to. However, if you are writing to a company, or to the
Court, who should you address the letter to?

For a company, if the company is your client then you will know the name of the
person you are dealing with, write directly to them (but at the company). For
example:

3
By ‘reference’ I mean file reference, and sometimes the details of the person writing the letter are
also given. For instance, ‘our reference’ might be the initials of the person writing the letter, and then
the firm’s file number. For example, “MB:F2307”.

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Mr John Brown

Marketing Director

Tooloose Pty Ltd

33 Seaside Rd

Port Vila

However, if you are sending a formal letter to another company (who is not your
client), then the letter should be addressed differently, probably to the ‘Managing
Director’, or to ‘The Proper Officer’, or the like.

Also ensure that you use the full and correct name of the company, including any
‘Pty’ or ‘Ltd’. For instance, when serving a document on a company you might
address the covering letter as follows:

The Managing Director

Safenow Housing Pty Ltd

Locked Bag 22

Port Vila

If you are writing to a woman, it is best to write to ‘Ms’ someone. Using ‘Ms’ means
the letter is not noting or making comment of the marital status of the woman who
the letter is addressed to, as it shouldn’t. When writing to a man we don’t make any
such comment or distinction. Only use ‘Miss’ or ‘Mrs’ if you know the recipient
prefers to be referred to as ‘Miss’ or ‘Mrs’.

If you are writing to a Court, then you would normally address the letter to ‘The
Registrar’ of the Court. You normally don’t write directly to the Magistrate or Judge
who is dealing with a matter. For instance, if you are filing written submissions with
the Court, you might send those submissions with a covering letter addressed to

The Registrar

The Supreme Court of Vanuatu

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Joint Court

Port Vila

It may sometimes be appropriate to write directly to a judge or magistrate. However,

the Registrar is normally the intermediary via which you would write.

Lastly, it is accepted practice that you don’t use punctuation in the address of the
person you are writing to.

THE GREETING

If you do not know whether or not the person that you are writing to is a man or a
woman, then use the greeting ‘Dear Sir or Madam’. If you know the person is a man,
but not their name, write to ‘Dear Sir’, or if a woman, write to ‘Dear Madam’. If you
know the last name of the person that you are writing to, and whether or not they are
a man or a woman, then use that last name. For example, use the greeting, ‘Dear
Ms Brown’, or ‘Dear Mr Brown’. Generally, avoid using ‘Mrs’ or ‘Miss’.

If you know well the person that you are writing to then you can be less formal, and
use their first name. For example, write ‘Dear John’, or ‘Dear Grace’.

Also, you don’t put full stops after initials in someone’s name. For example, write ‘Mr
G Brown’, not ‘Mr G. Brown’.

THE HEADING

There are a few standard practices with headings that are good to follow.

Put the heading in bold type, or underline it.

If it is a litigation matter, or a dispute, involving your client and another party, then
you would put the name of both parties in the heading. Also, you always put the
name of your client first.

You should also capitalise the first letter of the main words in the heading. For
example, you would write

Your Claim Against Unelco

and not

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Your claim against unelco

If your client is the claimant, applicant or plaintiff in a matter (when there is a dispute
or litigation), and you are writing to the other side or to the Court, then you would
write the heading like this (Smith is your client):

Smith v. Wasari

If the matter is already in Court then it is useful to also put in the heading the Court
file number. You might put this on the same line, or on the following line. For
example:

Smith v. Wasari: Magistrates Court Proceedings No. 34 of 2013

or

Smith v. Wasari

Magistrates Court Proceedings No. 34 of 2013

If you are writing to your client then you would use ‘You’ instead of Smith, or write
something like ‘Your Claim Against Wasari’. So the heading might be:

Your Claim Against Wasari

Magistrates Court Proceedings No. 34 of 2013

If, however, when you are acting for a defendant, then you would have to change the
order of the parties in the heading, so that the name of your client is written first. So if
you were acting for Wasari your heading would then be:

Wasari ats Smith

Magistrates Court Proceedings No. 34 of 2013

Here the ‘ats’ is an abbreviation of the words ‘at the suit of’, and is a common way of
referring to proceedings when the name of the defendant is placed before the name
of the plaintiff.

If your matter is not a litigation matter, then use a heading that gives some useful
information about the matter. So, for example, instead of using a heading ‘Your
Claim’, use the heading “Your Claim against Unelco for Unlawful Termination of Your

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Employment’. Or if the matter relates to the sale of land, write ‘Your Sale of 23
Tamoua Rd, Pango’, rather than just ‘Your Sale’.

Once upon a time lawyers would start a heading with ‘Re:’. However, this is now
criticised as being old fashioned, and it isn’t necessary.

THE CONTENTS OF THE LETTER

All legal letters will follow a similar pattern, being:

 an introduction, that sets the scene, and gives context to what is to follow;
 the main contents of the letter - that is, what it is saying; and
 a closing sentence or paragraph, that neatly concludes the letter.

THE INTRODUCTION OR START OF THE LETTER

Different lawyers have different styles and ways that they start letters. There is no
one correct way to start a legal letter. However, you should write simply, without
using unnecessary words, and use a businesslike tone.

It is very useful in the introductory sentence to give some context. Often this can be
done by quickly referring to the reason the letter is being written, or to the last
meeting or conversation between the letter writer and the recipient. Doing so not only
gives context to the letter, but also puts on the written record that you had this earlier
meeting or conversation with the other person.

For example, if writing a letter to a new client that you saw a few days ago at your
office, you might start the letter by writing:

I refer to your attendance at my office on 16 August 2015, and thank you for coming
to see me about your matter.

Or even more simply:

I refer to your attendance at my office on 16 August 2015.

Or perhaps:

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I refer to our meeting at my office on 16 August 2015.

Depending on the client, you may be a bit more chatty in your introduction. But avoid
being overly wordy.

Take another example. You are writing to the lawyer of the defendant in
proceedings, when you act for the plaintiff. The defendant has not complied with a
Court order. So your introduction might be:

I refer to the Orders made in the Magistrate’s Court on 10 July 2014.

This introduction gives context to what you are about to say, being that their client
has failed to comply with the Court’s orders.

THE MAIN CONTENTS OF THE LETTER

This will depend on the type of letter that you are writing. We will look at what should
be in different types of letters shortly, by thinking about the purpose of the letter, and
who will be reading the letter.

THE CLOSING SENTENCE OR PARAGRAPH

Again, as with the introduction to a letter, there is no one magic way to finish a legal
letter. However, there are a few guidelines.

Of course, your language needs to be simple and concise, and the tone
businesslike. You should also end with a hint or reference to what is to happen next,
as a reminder to the reader.

For example, if you have written to your client and told your client that following the
hearing of the client’s case the Judge has reserved judgment, and you expect that
judgment to be handed down in a few weeks, then you might write this concluding
sentence:

I will contact you as soon as I receive the Court’s judgment.

If you have written to your client asking that they send to you a cheque in payment of
Court fees, then your concluding sentence might be:

I look forward to receiving the cheque for the Court from you shortly.

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If you have nothing specific to say, you might end by writing:

I will keep you informed of developments.

If you have written an advice to your client, and you are waiting for instructions, then
you might end the letter by writing:

I look forward to receiving your instructions.

In each example we are using the last sentence in the letter to reinforce what is to
happen next, which can be a useful reminder for the recipient.

THE ENDING

Normally, I end a legal letter by writing ‘Yours faithfully’, and then a few lines below
type my name. I then sign between the ‘Yours faithfully’ and the typed name.

If you know the recipient well, then you can use ‘Yours sincerely’ instead of ‘Yours
faithfully’. Some style guides also suggest that when you use the name of the person
at the start of the letter (eg Dear Mr Brown), then you should write ‘Yours sincerely’
rather than ‘Yours faithfully’ at the end. However, generally I just use ‘Yours
faithfully’. This is polite, if not a little formal.

TONE

I have mentioned tone, and the need to write in a business-like tone. This means
that you should be matter of fact, and not use overly emotive language. Also, you
would not personalise the issues, or use language that makes a moral judgment.

For instance, you would not write to another party’s solicitors and use a phrase such
as this:

Your client has once against shown himself to be a dishonourable person by failing
to comply with the Court’s Orders.

Nor would you write:

It is immoral for your client to continue to breach the Court’s Orders, and he is a very
bad person for doing so. God will be his Judge.

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Rather, you would write something like this:

We note that your client has again failed comply with the Court’s Orders for the filing
of evidence. This is the third time you client has not complied with such Orders.
Accordingly, we have instructions to immediately make an Application to the Court
pursuant to Rule 9.10 of the Vanuatu Civil Procedure Rules to have your client’s
claim struck out, and for an order for Costs against your client.

WRITING A SIMPLE LEGAL LETTER

We have thought about the types of letters that lawyers might write, and we have
discussed the typical common elements of legal letters. So now it is time to start
drafting.

Learning to be a good legal drafter requires a lot of practice. There is skill and art in
writing well, even with relatively short letters.

Think about this:

Q: Do you think that you write clearly? Do you think that you write simply?
How would you know? And if you don’t then how can you get better?

A: You must practice your drafting, and edit thoughtfully. And you must read
and take in constructive criticism, and take note of the techniques that we
discuss in this course. Then, with time, and over the years, you will develop
the skills of a good legal drafter.

Remember this. It is unlikely that by the end of this course that you will be really
good at drafting legal documents. You won’t be. Developing these skills takes years
of practice. You slowly develop these skills, and refine them over time. You can’t
simply pick them up overnight, or even in the space of one semester.

WRITING A SIMPLE LETTER SERVING OR DELIVERING DOCUMENTS

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Here we are referring to relatively simple letters that are sending documents, or
perhaps serving documents.

Such letters may only be a couple of lines long.

If you are attaching or enclosing a document with a letter then you should refer to
that document in the letter. For example, if you are sending a copy of a signed
contract then the main part of your letter might be:

I confirm that contracts were exchanged last Thursday. I enclose a copy of the
contract signed by the vendor.

If you are writing a letter serving documents, then make it clear that that is what is
happening. It should clearly identify the document being served, so that there is no
confusion. For example, you might write (under a heading that identifies the parties
and the court proceedings):

We act for the plaintiff in this matter.

We enclose by way of service a sealed copy of Statement of Claim, filed 22 July

2014.

Should you have any questions in relation to this matter please contact Mr Smyth at
our office.

This letter makes it totally clear what document is being served, and that that
document is a copy that bears a seal of the Court. Being clear on the face of the
covering letter about what you are serving or sending is very important. You might
know what you are sending at the time, but six months later you may have forgotten,
or another person who picks up your file will not know.

LETTERS OF DEMAND

A letter of demand is a letter that a solicitor normally sends on behalf of its client,
demanding something from another party. That ‘something’ is often money, but may
be other things. For instance, you may send a letter of demand requiring that the
recipient stop trespassing on your client’s land. Or you may send a letter of demand
requesting that a proposed article, that you feel defames your client, is not published.

So basically a letter of demand is a lawyer’s letter, generally written directly to a third

party, making a demand for something. Where a solicitor is acting for the other party

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then a letter of demand might be sent to that party’s solicitor, rather than direct to the
party.

A letter of demand will also have in it all of the common elements of a legal letter that
we have already discussed.

PURPOSE OF A LETTER OF DEMAND

There are a few purposes of a letter of demand. The primary purpose is to make the
demand so that it will be met, (which usually means getting the money paid to your
client).

A letter of demand can also be useful in setting out your client’s side of the story, or
point of view.

Lastly, a letter of demand may later be used in Court proceedings, as one side
attempts to show the Court that before it commenced litigation it made a claim
against the other party, and gave the other party an opportunity to settle that claim
without going to court. While there is no legal need to do this, it may have an
influence on the question of who pays the legal costs of proceedings.

Also, as a letter of demand may end up being tendered in Court, it is good not to
appear to be unreasonable in what is demanded, or bullying, offensive or
intimidatory in the tone used. For instance, there is little point sending a letter of
demand seeking that $1,000,000 be paid within 48 hours. Generally, that isn’t going
to happen.

However, as stated, the primary purpose of a letter of demand is to have the demand
satisfied, usually by the payment of money. Accordingly, it is import to be very clear
about what is being demanded, as well as the time frame within which the demand is
to be satisfied.

INTENDED AUDIENCE

A letter of demand is first and foremost intended for the person to whom it is
addressed, being the person or organisation against whom or which the claim is
made.

Further, as a lawyer you will generally send a copy of the letter of demand to your
client, so that he or she can see what a good job you are doing. So your client will
also be reading the letter.

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Lastly, as already noted, sometimes letters of demand are tendered to the court in
relation to the costs of proceedings, so a judge or magistrate might also one day
read the letter of demand.

SENDING A SECOND LETTER OF DEMAND?

Some lawyers do this. That is, they send a first letter of demand saying pay $X within
14 days or their client will sue, and when that demand is not met they send a further
letter of demand, saying that this time you really really have to pay $X within a
further 14 days or else we will really, really sue.

This is bad practice. If you, as a lawyer, say something in a letter, then you should
stick to it. If your client wants to send a letter of demand, but does not want to sue if
the demand is not satisfied, then you should modify the letter slightly so that it is
ambiguous as to the consequences should the demand not be met. For example, if
your client intends to sue if the demand is not met then the original letter of demand
might end with the following sentence:

Please note that we have instructions that if the amount claimed in this letter not be
paid as requested, then we are to commence legal proceedings against you without
further notice.

Alternatively, if your client is not sure, or does not want to sue, then your last
paragraph might be something like this:

Should the amount claimed not be paid within 14 days then we anticipate receiving
instructions to immediately commence legal proceedings against you without further
notice.

You should notice the subtle difference here between the two versions. The first
version basically says that proceedings will be commenced. The second version
says that you don’t have instructions, but those instructions will probably be to sue.

What is important is that as a lawyer you say what you mean to say, and you stick to
that. So avoid writing one letter of demand, and then when that isn’t complied with
writing a second. Generally, doing so is a waste of time, and a waste of your client’s
money. Instead of the second letter, if there is no response to the first letter do what
your letter says you will do. Sue.

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If, however, you get a response to a letter of demand that makes an offer of
payment, then you would obtain instructions on that offer from your client before
taking any further action, and you would normally reply to such a letter before taking
any further action.

TONE & WHAT NOT TO DO.

Your letter of demand should be businesslike, direct and to the point. However, you
should not be rude, nor should you make threats or seek to intimidate. This extends
to not threatening criminal legal action or sanction should a civil claim not be settled.

In some jurisdictions it is a breach of legal professional rules to threaten criminal

proceedings when making a demand for a civil liability. Rule 34 of the Legal
Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides:

34   Dealing other persons

34.1  A solicitor must not in any action or communication associated with

representing a client:

…
34.1.2  threaten the institution of criminal or disciplinary proceedings against the
other person if a civil liability to the solicitor’s client is not satisfied... 4

The American Bar Association’s Rules also prohibit such threats. DR 7-105 (a) of the
American Bar Association Model Code of Professional Responsibility states:

(a) A lawyer shall not present, participate in presenting, or threaten to present

criminal charges solely to obtain an advantage in a civil matter.

Although countries in the South Pacific have legal professional codes or rules of
conduct, only the rules in Samoa appear to contain such an express prohibition
against such behaviour. The Samoan Rules of Professional Conduct 2004 provide:

Rule 6.05 - A practitioner must not make demands coupled with threats so as to
commit the offence of extortion. A practitioner must not, with an intent to gain,
threaten, even if only by implication, criminal proceedings in the context of civil
disputes

4
http://www.legislation.nsw.gov.au/maintop/view/inforce/subordleg+244+2015+cd+0+N

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You should be wary of engaging in such practices. The rationale behind such
prohibitions is well articulated by the Ethical Consideration 7-21 of the US Bar
Associations Model Code, and is just as relevant in the South Pacific as in other
jurisdictions. It states:
The civil adjudicative process is primarily designed for the settlement of disputes
between parties, while the criminal process is designed for the protection of society
as a whole. Threatening to use, or using, the criminal process to coerce adjustment
of private civil claims or controversies is a subversion of that process; further, the
person against whom the criminal process is so misused may be deterred from
asserting his legal rights and thus the usefulness of the civil process in settling
private disputes is impaired. As in all cases of abuse of judicial process, the improper
use of criminal process tends to diminish public confidence in our legal system. 5

Also, you should not make a demand for payment of legal fees in addition to the
amount demanded on behalf of your client. There is generally no legal basis for such
a demand.

Lastly, it is generally not a good idea to invite the recipient to offer to compromise the
claim, or to pay off the claim over a period of time. By doing so you straight away
undermine the position you are stating in your letter, and telling the recipient that a
compromise or a payment plan may be possible. If the recipient cannot pay as
demanded and is interested in putting such a plan or proposal to you or your client,
they will no doubt do so. However, if you suggest this is possible in the demand then,
you are inviting a compromise. So keep the message in your demand clear – that the
debtor is to pay the full amount claimed within the period given.

EXAMPLE LETTER OF DEMAND

A letter of demand relating to a claim for damages following a motor vehicle accident
might be drafted like this:

5
See Peter Geraghty, ‘Making Threats’, http://www.google.com.au/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CEUQFjAB&url=http%3A%2F
%2Fwww.americanbar.org%2Fcontent%2Fdam%2Faba%2Fpublications%2FYourABA
%2F201108makingthreats.authcheckdam.pdf&ei=nQwDUoCyL-
uQiQfy1IHgCw&usg=AFQjCNGPGtBeA7HZgDKvJBKZCusnwbLfeA&sig2=UgTWgNoSV0vNN--
SjrPw3Q&bvm=bv.50500085,d.aGc

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Mr M Blaxell

Solicitor and Barrister

USP Emalus Campus

PMB 9072

Port Vila, Vanuatu

Ph: 27026

Email: blaxell_m@vanuatu.usp.ac.fj

Our ref: 111 M Blaxell

Your ref: MO 45

27 July, 2015

Mr David Goherty

PMB 55998

Port Vila, Vanuatu

Dear Mr Goherty,

Patterson v. Yourself

Motor Vehicle collision on 15 June 2015

We act for Mr Patterson in this matter.

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We are instructed that on or about 15 June 2015 you were driving your motor vehicle
registration number C6689 on Father Walter Lini Highway, Port Vila, near Korman
Stadium, in an easterly direction, when you collided with our client’s truck registration
no F590. Our client’s truck was legally parked at the side of the road at the time of
the collision.

We are also instructed that this collision was caused solely by your negligence.

As a result of this collision our client’s car was damaged, and the estimated cost of
repairing that damage is 300,000 vatu. Attached is a copy of a repair quote relating
to those repairs, obtained from DJ Smash Repairs, Port Vila, and dated 30 June,
2015.

Accordingly, we are instructed to demand payment from you of the sum of 300,000
vatu. Please forward to us a cheque in favour of our client, Mr D Patterson in the
sum of 300,000 vatu.

Should that payment not be received by our office within 14 days of the date of this
letter then we have instructions to immediately commence legal proceedings against
you, without further notice to you.

Yours faithfully,

Michael Blaxell

This letter of demand, as should all well drafted letters of demand:

 clearly identifies the parties, and who the solicitor is acting for;
 clearly identifies the cause of action;
 makes it clear what is being demanded;
 makes it clear the time within which the demand is to be satisfied; and
 clearly states the consequences should the demand not be met.

SOME COMPLEX LETTERS OF DEMAND

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The above example is of a fairly straight forward simple letter of demand. It is the
type of demand that lawyers most often write, and when you first start as a lawyer it
is the type of demand that you will most likely draft. The legal situations that underpin
such letters are generally not that complex, or if they are, you do not dwell on those
complexities in the letter. Doing so would lessen the effect of the demand.

However, on occasion a matter will be sufficiently complex to warrant a letter of

equal complexity. Posted on moodle under this week’s materials is one such
complex letter of demand, written by solicitors acting for Demi Moore. The example
comes from America, and as a result the language is perhaps more expansive and
the tone more argumentative than might be expected. Also, some of the standard
elements that a letter should have, that we have already discussed, are not there.
However, the letter is still a well written, and persuasive to read, as is the response.
The response is also posted on moodle. I don’t think that the lawyers who drafted
these letters had just finished law school.

Who do you think wins the argument?

DRAFTING LETTERS REFUTING A CLAIM OR DEMAND – LETTERS OF

DENIAL

Often what follows after a letter of demand is a response that refutes or denies a
claim. You will already have had a look at the very detailed response to the letter of
demand sent by Demi Moore’s solicitors. That response is notable in that it goes into
detailed legal argument, in an attempt to immediately halt the threatened action.

However, many letters of denial are a lot simpler than this example, but with all
letters of denial there will be some common threads.

PURPOSE OF A LETTER OF DENIAL

First and foremost, a letter denying a claim must do just that. It must refute the claim,
and stress that the amount claimed is not owed, and won’t be paid.

Further, a letter of denial is an opportunity to put on the record the reasons why your
client says that the claim is not valid. If this can be done with detail, and
authoritatively, then it can be very effective in heading off the threatened claim.
Further, a well and strongly written letter of denial may make the potential claimant
think twice about commencing legal proceedings, even if they still believe that their
claim is valid.

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INTENDED AUDIENCE

As with a letter of demand, the letter refuting a claim is designed to be read by the
law firm it is addressed to, as well as their client, your client, and quite possibly at
some future stage, a Court.

TONE & WHAT NOT TO DO.

The tone should be formal, matter of fact, and to the point. Avoid using emotional
language. Also, avoid being rude, or personally attacking the other lawyers. For
instance, do not write to the other lawyer something like “Where did you get your law
degree from? You must have been admitted at the Kava Bar.”

Also, generally you would write about what you are instructed, rather than asserting
that what your client has told you actually happened. There is a subtle difference.

You will also have to make a decision about how much information you want to send
to the other side. For instance, you may have a statement from a witness that
supports your client’s version of events. Do you send a copy of that statement to the
opposing party’s solicitors? This might be a good idea, as it will show that your
client’s version of events is supported by a third party. However, it might be a bad
idea as it will give quite a few details of what the witness says, thus alerting the other
side to certain matters, and giving them an opportunity to address or explain away
this witness’s version of events. Further, if you give a signed statement of a witness
to the other side this means that that statement might later be able to be used in
cross examination of that witness. Generally, it is better not to reveal all of the cards
at such an early stage of an argument.

So normally I might provide the other side with a denial, and also state that
witnesses support my client’s version of events. But I would be reluctant to supply a
copy of the witness’s statement.

Also, you need to be careful about providing your client’s version of events to the
other side before thoroughly looking at all available evidence. You do not want your
client telling you something that you then tell the other side, and later when other
information comes to light your client tells you – “oh, that’s right. I forgot. We did
have two meetings.” So if at all possible check the facts of what your client tells you
before providing that information to the other side. Alternatively, If you are not very
sure of your facts then it is sometimes best to be a little vague.

AVOID MAKING ADMISSIONS

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When responding to a letter of demand be careful not to make unnecessary
admissions. For instance, in our example of the motor vehicle collision, the claimant
may know the registration number of your client’s car, but may not be sure that your
client was actually driving the car at the time of the collision. So if you write a letter
back saying that your client wasn’t negligent because he was driving safely on his
side of the road, you have admitted that your client was the driver of the car. In that
way you have inadvertently helped the other side prove part of its case. So be
careful about saying things that could be seen as admissions. For these reasons,
sometimes a very simple denial is appropriate.

On other occasions, some facts are not in dispute (or are not disputable). If there are
no concerns about making admissions, then the letter of denial can be used to say
why the claim is not payable.

NOTE: You cannot lie for your client

If your client tells you something that he has made up, and you know that isn’t true,
but your client asks you to say that to the other side, you cannot say it. For instance,
if your client instructs you to tell the other side that he or she is currently out of the
Country, when you know this is not the case, you cannot say that your client is out of
the country.

EXAMPLE LETTER OF DENIAL

A simple letter of denial, in response to the example letter of demand that we looked
at earlier in these notes.

Mr H Hand

Solicitor and Barrister

c/- Numbawan Cafe

Port Vila, Vanuatu

Ph: 7777666

Our ref: Goherty F556

Your ref: 111 M Blaxell

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10 August, 2015

Dear Mr Blaxell,

Goherty ats Patterson

Motor Vehicle collision on 15 June 2015

We act for Mr Goherty in this matter, and note that you act for Mr Patterson.

Our client has forwarded to us a copy of your letter to our client, dated 27 July 2015,
and asked us to respond on his behalf.

We are instructed that our client denies the allegations contained in your letter.
Further, we are instructed that your client’s vehicle was not parked at the time of the
collision. Rather, your client’s vehicle was unoccupied and rolling downhill, and then
moved onto the wrong side of the road, and into the path of our client. Our client
made every attempt to avoid your client’s vehicle, but was unable to do so.

In the circumstances, it appears that your client’s negligence was the sole cause of
this collision.

Should your client commence legal proceedings against our client then we hold
instructions to vigorously defend those proceedings.

Further, we anticipate receiving instructions to file a counter claim against your client.
Please advise whether you will accept service of that claim on behalf of your client.

Yours faithfully,

Henry Hand

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What do you think of this letter? Could you improve on it? Is there anything that you
would have done differently?

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