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  • Writer's pictureGareth-Lee Smith

Why did you write that? A reminder to all litigators to think twice before sending correspondence.

This article has come to be because of three things.

The first a podcast by Seth Godin entitled “Don’t just do something; stand there”. Seth is a marketer by profession, but he is a profound thinker whose podcast churns out gold without any filler.

The second is a discussion I had with Sanjeev Punj a little over a week ago. Sanjeev is director at SP Legal (, a commercial law firm with offices in Birmingham and Telford. The firm seeks to provide a responsive and commercially-valuable service to its clients.

The third is my pervading instinct throughout my career that a large proportion of legal and corporate correspondence surrounding disputes is wrong-headed, counter-productive, and unlikely to achieve the intended objectives. The first two things mentioned above only served to reinforce my views.

Please do not use this letter as specimen. Or do, and write in with the responses you receive from your opponent and regulator.

How to make enemies and alienate people

The Seth Godin podcast opens with a response he received from a company after he complained that one of their products was late. [If I’ve been technically savvy a link will be embedded just below this paragraph. I recommend you have a listen.] The response by email was terse, defensive, and only served to destroy any remaining goodwill that the company could lay claim to. It didn’t resolve the problem, and it didn’t improve the lives of the author or recipient one iota.

We can only speculate why the company representative wrote what he did. My guess is that he had taken one look at the email, thought “Another ungrateful customer with their first-world problems!”, and lost his cool. But, as a representative of the company, what was his job? Was it:

a) To identify problems that might have arisen and resolve them as far as the company’s responsibility and resources required?

b) To take his emotions and make them part of the company by using them in the company’s business?

If you answered a) then you have the necessary common sense to make good business decisions. But that doesn’t mean that you’re going to use that common sense when push comes to shove.

The cost of letting emotion get the better of you

If a dispute arises in the course of your business you are bound to feel one or more of several emotions. Anger; frustration; sadness; disappointment; and so on. But as natural as it is to feel those things, you need to look beyond those emotions when you enter into correspondence as a consequence of the dispute. For lawyers acting on behalf of businesses and individuals alike this is absolutely essential.

If you allow emotion to lead your thought processes, then you are going to lose sight of the most important question when handling a dispute.

What are you trying to achieve?

This is the fundamental question and you must focus on this above all else. You are likely to be trying to achieve something along the lines of the following:

· You want to explore what the issues are and how they have arisen.

· You want to reject an assertion made by the other side. For example: the idea that the dispute is your fault and not theirs.

· You want to make an assertion on your own behalf to make clear your own position. For example: the dispute is their fault.

· You want to repair any damage to the business relationship you have.

You are unlikely to be trying to achieve anything in this list:

· Make the dispute last longer than absolutely necessary.

· Raise the temperature of the discussion.

· Provoke further arguments which are unrelated to the issues at hand.

· Make the relationship worse, or destroy it all together.

Only by putting your emotion to one side can you hope to achieve anything in the first list. If you go in all guns blazing and chastise, criticise, or downright abuse the recipient, then don’t be surprised if you don’t get what you wanted to achieve. And if you’re in a dispute where litigation then becomes necessary as a result of your inability to agree matters before turning to the lawyers, then that letter where you got everything off your chest but achieved nothing will cost you in time, effort, and money.

In a future article I will address what I think is the correct approach to correspondence with a view to resolving disputes. In the meantime, if you would like to discuss any such dispute with me, whether on a personal level or for your business, then please contact me through this website.

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