If you retain a lawyer to represent you in a personal injury case, that lawyer will send a claim letter, also known, as a letter of representation, to the defendant. The claim letter informs the defendant that you have a claim against the defendant and that the lawyer represents you for that claim.
The claim letter is not required by law so it is optional for a lawyer to send it. However, in New York, if the claim is against a municipality or a municipal agency, one must send a Notice of Claim within 90 days of the incident. You can learn more about the Notice of Claim by clicking here.
In some areas, people use the term letter of representation to refer to the contract between the client and a lawyer. In New York, we generally refer to that agreement as the retainer or the retainer agreement. You can read more about the retainer agreement here.
What a Claim Letter Says
Years ago, I used a standard claim letter that was bureaucratic and full of legalese. I subsequently changed my claim letter to put it in plain English and to use it as an important tool to open discussions with the defendant. This approach has proven much more effective. I highlight several points in the claim letter:
- I state the name of the person making the claim (my client).
- I state in very general terms the nature of the claim
- I state the date and location where the incident occurred
- I suggest that the defendant notify his or her insurance company. For example, if the claim involves a car accident, I ask the driver to contact his or her auto insurer. If the defendant is a property owner or a store, I ask them to contact their insurance company or risk management department.
- If appropriate, I ask that the defendant to retain any evidence they may have relating to the claim. This request can be very important in cases where the defendant – say a supermarket – has surveillance tapes that might have captured an incident.
I end each letter by highlighting my willingness to resolve the matter before putting it in suit and I explain the process that I use:
When I complete my full investigation and my client’s medical condition is fully known and stabilized, I will complete my assessment of the case. At that time, I will send you or the appropriate representative from your insurance company a Settlement Proposal in an effort to resolve this claim in a manner that is fair to all parties and saves all parties time and legal expenses. If we are unable to resolve the case at that time, I will file a lawsuit and pursue this matter through the courts.
While I work with each client to develop a specific plan for that client’s case, the last paragraph summarizes my general approach of investigating a case and making a Settlement Proposal before filing suit. The defense often has more flexibility to settle before we file suit. There is no need to threaten or rant and rave in a claim letter. I make it plain: if we do not receive a satisfactory settlement offer, then I will file suit.
The Claim Letter is Very Important
The claim letter is important for several reasons:
- It makes the defendant aware that you have a lawyer representing you and that all communications should go through the lawyer.
- It makes the defendant aware that you have a claim so they can begin to compile information on that claim. The sooner they gather information, the easier for us to discuss a possible settlement.
- It triggers the defendant to contact their insurance company which protects the defendant and usually makes settlement talks more likely.
- It makes the defendant aware that they should retain any critical evidence such as surveillance tapes.
If the defendant has insurance, we want the defendant to notify the insurance company. If the defendant receives a claim letter and fails to notify the insurance company, the insurance company may disclaim on that incident, meaning they may not provide coverage due to lack of notice.
When I Do Not Send a Claim Letter
In most cases, I send a claim letter on the day I received the client’s signed retainer, though it is optional and I do not always send a claim letter or may not send one right away. I only send a claim letter if it will advance my client’s case.
In most medical malpractice cases, I do not send the claim letter right away, if at all. I prefer to complete my investigation of the case and evaluate the medical records before sending any claim letter. While the medical records by law belong to the patient, if a doctor or hospital receives a claim letter before releasing the medical records, they often become very slow in releasing the medical records. I also want to make sure we have a valid medical malpractice claim before alerting the doctor or hospital.
A Warning that I Always Give to My Clients
Once an insurance company becomes aware of a claim, they will investigate the matter. Some are more aggressive than others. The defendant or their representative may try to contact the client directly. They should not do so, but some investigators are very aggressive. If they do so, I ask my clients to refer them to me. Do not answer any questions, sign any documents or give them any information. I tell my clients not to speak to anyone else about their case; especially not to discuss the case with a stranger. It is not uncommon for insurance companies to hire investigators to try to glean “insider” information.
I hope you have found this information helpful. I do need to remind you that this information offers general guidelines. If you have questions about a specific case, you should consult an experienced personal injury lawyer in New York. I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New
York Law Thoughts.
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney. Remember, past results do not guarantee similar outcomes in the future.
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