Barton Chapter 35: Letters PDF

chapter 35 Letters Attorneys write letters to judges, opposing counsel, clients, clerks, witnesses, and many others. For instance, many attorneys prepare client advice letters to convey the same objective legal analysis that is found in an office memo. Attorneys also frequently prepare persuasiv...

chapter 35 Letters Attorneys write letters to judges, opposing counsel, clients, clerks, witnesses, and many others. For instance, many attorneys prepare client advice letters to convey the same objective legal analysis that is found in an office memo. Attorneys also frequently prepare persuasive letters to opposing counsel regarding discovery disputes or other issues. And many attorneys apply for jobs by writing cover letters that describe their skills and experience. A letter can be more formal than an email message, even as many letters are now sent electronically, often as email attachments. The format and conventions of proper letter writing may be unfamiliar because we so rarely write letters for personal correspondence these days. As an attorney, any letter you send will reflect your professionalism. Your letters should be written thoughtfully and display a careful attention to detail. Moreover, because letters can be legally significant documents, a letter must be an accurate record of when, where, and how it was sent, as well as being accurate and precise about the matters it discusses. Professional letters are typically printed on letterhead and structured as shown in Figure 35.1 on the next page. Usually, the text of a letter is single spaced with non-indented, block paragraphs that are separated with a blank line between each paragraph, as shown in the examples beginning on page 310. Letters that are longer than one page should have page numbers. Often, these page numbers are formatted as “page 2 of 8” to help the reader keep track of all the pages of the letter. The Components of a Professional Letter 1. The correct date 2. The method of transmission 3. A properly formatted recipient name and address 4. A useful re: line  5. An appropriate greeting 6. A professional style that is tailored to the recipient 7. A customary closing p. 305 Figure 35.1 1.THE CORRECT DATE A professional letter must be dated correctly. Often, an attorney will begin drafting a letter days before she sends it. If the attorney enters the date that she starts working on the letter, rather than the date that she mails it, the letter will not be an accurate record of when it was sent. A letter’s date can be legally significant. For example, the date of a letter may establish when a party received notice of a legal right or when a party fulfilled a legal obligation. Letters exchanged during a case are usually stored chronologically in a correspondence file, and they create a timeline of litigation events. A letter with the wrong date can create practical and ethical problems because it misrepresents when the communication occurred. Develop a practice to ensure that letters are always dated correctly. Some attorneys avoid entering the date until the letter is finalized and sent, others p. 306 manually update the date each day that they work on the letter, and others insert the date as a field so that the date updates automatically. 2.THE METHOD OF TRANSMISSION The VIA line on a professional letter describes the method used to send the letter. Because letters can be legally significant, every letter must accurately state how it was transmitted. A letter sent by U.S. Mail would have the following VIA line: VIA U.S. MAIL Attorneys routinely send letters using methods other than the U.S. Postal Service, and they may send a single letter using multiple methods. For example, an attorney may write an enclosure letter for a package of hard copy documents being sent to a client. The letter will be included in the package that will be sent by FedEx, but the attorney may also send the letter as an attachment to an email to inform the recipient that the package is on its way. In that case, the VIA line would state as follows: VIA EMAIL & FEDERAL EXPRESS By accurately reflecting how a letter was transmitted, you preserve the letter as a trustworthy record. 3.A PROPERLY FORMATTED RECIPIENT NAME AND ADDRESS Every letter must include the recipient’s name and address. In a formal professional letter, the letter should also include the recipient’s job title. For example, in a letter addressed to a judge, the recipient’s name should be written as “The Honorable _______ ” and the next line should identify the full name of the court before the court’s address. For example, The Honorable Jacqueline Scott Corley U.S. District Court for the Northern District of California  Phillip Burton Federal Building & United States Courthouse 450 Golden Gate Avenue San Francisco, CA 94102 Other appropriate titles include Clerk of Court, Esq., General Counsel, Dr., and business titles like Senior Vice President of Development. 4.A USEFUL RE: LINE Similar to the subject line of an email, a professional letter should have a re: line that informs the recipient of the general subject of the letter. Typically, p. 307 letters written during litigation put the case name and docket number in the re: line. For example, Re: Sato v. Schmidt, No. C22-288228 The re: line can include a more detailed description of the subject of the letter, as long as it is concise and helpful to the recipient. For example, Re: Scheduling Nyongo Deposition in Sato v. Schmidt, No. C22-288228 If the letter is protected by the attorney-client privilege, that information should be noted after the re: line, as follows: PRIVILEGED ATTORNEY-CLIENT COMMUNICATION 5.AN APPROPRIATE GREETING The appropriate greeting depends on the level of formality in the letter. Typically, letters are used for more formal correspondence. A professional letter will usually use the highest level of formality and have a greeting that includes a salutation, an honorific, and a colon. For example, Dear Mr. Nasiri: Dear Ms. Baily: Dear Judge Hur: Dear Chief Justice Rodriguez: When a letter is addressed to a judge, the appropriate honorific is Judge or Justice, unless the person is the Chief or Presiding Judge or Justice, in which case that title should be used. 6.A PROFESSIONAL STYLE THAT IS TAILORED TO THE RECIPIENT When you sign a letter as an attorney, you put your reputation and credibility on the line. For this reason, you should never send a letter that is inaccurate or intemperate. Every letter has the potential to become a matter of public record. Letters exchanged in litigation are often attached to court filings. When that happens, the court, the clients in the case, and the public all have access to the letter. A.Avoid Legalese The principles of good writing apply especially to formal letters. Like any legal document, a professional letter should use concise, plain English — not legalese. A letter should also reflect the voice, personality, and professionalism of its author. And it should be written in a readable style appropriate to its audience. p. 308 When writing to a judge, the style should be deferential; when writing to opposing counsel, the style should be civil; and when writing to a layperson, the style should be accessible. A professional letter can include pleasantries that are appropriate to the situation and the relationship between the writer and the recipient. But a letter should not adopt mannered or stilted phrases just because they are common in professional correspondence. Weak wording, like “we write to inform you that,” “it is important to note that,” “in light of the fact that,” and “with regard to,” do not belong in a professional letter any more than ‍1 they belong in a legal memo or brief.‍ B.Consider the Recipient’s Knowledge of the Law Attorneys should tailor the tone and style of a professional letter to the recipient’s sophistication and knowledge of the law. A letter that is written to a nonlawyer should use language that is comprehensible to a layperson. This type of letter should use quoted language from legal sources sparingly, if at all, and it should probably not include citations, which will not be useful or understandable to a nonlawyer. In contrast, a letter to a lawyer or judge should use the relevant language from legal sources and should include correctly formatted citations. Any professional letter, like any legal document you write, should be scrupulously accurate regarding the facts and law it describes. Further, any letter that provides legal advice or states a legal conclusion should describe the facts and law that are the basis for the advice. By doing so, the letter memorializes what the attorney knew at the time the letter was prepared. C.Use Pronouns Thoughtfully A letter should use pronouns thoughtfully. Use the preferred pronouns for the recipient and any person mentioned in the letter. Be careful not to assume someone’s pronouns based on a name or photo. And notice how pronouns describing the relationship between the writer and recipient can impact the letter’s tone. A letter addressed to a client will sound cooperative when it uses “we” to describe the actions being taken as part of the representation. For example, writing to a client, “we need to prove the following elements,” sounds like the attorney and the client have a common goal. But “you need to prove the following elements” sounds like the attorney is giving the client a difficult assignment. Also, letters often use the plural “we” and “our” when they are written by an attorney who works for a firm or in an office with other lawyers to show that the letter reflects the position of all the lawyers working on the matter. p. 309 D.Adopt a Readable Format and Organization An effective professional letter is readable and its purpose is clear. The most important information in a letter should usually appear at the beginning and may be repeated at the end — much like how the CREAC framework repeats the Conclusion at the beginning and end of the legal analysis. For instance, a client advice letter should usually state the attorney’s conclusion in one of the first few paragraphs. Professional letters should use short sentences and paragraphs whenever possible because they are easier to read. Letters should also include bulleted and numbered lists when they will assist the reader. Longer letters should include headings and signposts to guide the reader and to break up the text. E.Proofread A letter must be proofread carefully. Although typographical and proofreading errors are not acceptable in any legal document, recipients may have some understanding regarding errors that appear in email messages sent quickly from mobile devices. The same understanding does not extend to formal letters. Never send a letter that has misspellings, typos, grammar problems, or other correctable errors. 7.A CUSTOMARY CLOSING Just as letters usually have formal greetings, they also have formal closings. Professional letters typically end with a sentence or two that wraps up the letter on a positive note, often encouraging the recipient to contact the writer with any questions. Then, the letter includes a formal closing. The most common closings used in legal letter writing are as follows: Sincerely, Very truly yours, Respectfully, When a letter is addressed to a judge, it should close with “Respectfully” or a similarly deferential closing. Otherwise, any polite, formal closing is appropriate. After the closing and signature, the letter should indicate whether it includes any enclosures or carbon copy (“cc”) recipients. Again, these details ensure that the letter is an accurate record of what was sent and to whom. 8.EXAMPLES OF PROFESSIONAL LETTERS The following examples show three types of professional letters. The first two are advice letters to a client that present the same legal analyses that appear in Example Memos 18.2 and 18.3 in Chapter 18 and Example Emails 36.5 and 36.6 in Chapter 36. The third is a letter to opposing counsel regarding a discovery dispute. p. 310 Example Letter 35.1 (annotated) Example Letter 35.1 STERN, SOGARD & MURANO, LLP 5 CALIFORNIA STREET, 34TH FLOOR SAN FRANCISCO, CA 94111 PHONE: (415) 333-4444 June 15, 2023 VIA U.S. MAIL Sara Willis 3625 Oakwood Forest Lane Lima, Ohio 45801 Re: Analysis of strategy for upcoming status conference on aggravated robbery charge PRIVILEGED ATTORNEY-CLIENT COMMUNICATION Dear Ms. Willis: I am writing as a follow-up to our meeting last week. As we discussed, my team and I reviewed your case and researched Ohio aggravated robbery law. We developed a recommended legal strategy, and this letter summarizes our analysis. In sum, we believe we should pursue a plea agreement with the State because the carving fork found in your car would likely qualify as a “deadly weapon.” That means the likelihood of an aggravated robbery conviction is high. A “deadly weapon” is “any instrument, device, or thing capable of inflicting death,” according to Ohio Code Section 2923.11(A). Previous cases in Ohio have found that an object is a deadly weapon for aggravated robbery purposes when its use or contemplated use could inflict great bodily harm. For example, one case found that a wrench taped to black socks to resemble a gun was a deadly weapon, even though it couldn’t shoot bullets, because it could be used as a bludgeon. And in another case, a five-to-six-inch piece of metal resembling a screwdriver was a deadly weapon because it could cause great harm if used to stab a person. In our case, the carving fork will likely qualify as a deadly weapon because its manner of use and contemplated use mean that it could inflict great bodily harm. Here, the fork was used as a weapon to stab Gus Bitner once and swat him repeatedly, so its manner of use likely makes it a “deadly weapon” under Ohio law. Moreover, the fork — with its sharp steel points — is comparable to the screwdriver because it can be used as a stabbing device and cause great harm. So its contemplated use also likely makes it a “deadly weapon.” For these reasons, we recommend pursuing a plea agreement. p. 311 Page 2 of 2 But the decision on how to proceed is yours. If you choose instead to go to trial, we could argue that the fork’s design shows that it is incapable of inflicting death. First, unlike a gun, which is designed to kill, the fork is designed to hold meat on a cutting board, not to cause harm. And at five ounces, the fork might be viewed as less dangerous than a wrench or screwdriver. Even so, the fact that the fork was used to swat and stab at Mr. Bitner and the fact that it has sharpened, metal edges weigh heavily against us. That’s why we’re recommending the plea bargain option. We’ve scheduled a meeting with Assistant State Attorney Lucia Jemisin to discuss these options. The meeting is 9:30 a.m., Friday, June 22, at her office at 204 N. Main Street. Please plan to attend. If you’d like to discuss our legal strategy further before then, don’t hesitate to reach out. I look forward to helping you reach the best possible resolution in your case. With best regards, Prudence Chavez Prudence Chavez  p. 312 Example Letter 35.2 (annotated) Example Letter 35.2 STERN, SOGARD & MURANO, LLP 5 CALIFORNIA STREET, 34TH FLOOR SAN FRANCISCO, CA 94111 PHONE: (415) 333-4444 January 22, 2023 VIA U.S. MAIL Ms. Despina Blackhurst 278 Queensbridge Way San Jose, CA 95002 Re: Analysis of open and notorious element for adverse possession claim PRIVILEGED ATTORNEY-CLIENT COMMUNICATION Dear Ms. Blackhurst: As we promised last week, we have analyzed your adverse possession claim and concluded that it will likely be successful. Specifically, your use of the small parcel of land likely satisfies the requirement that it is “open and notorious” to give notice to the owner. As described below, your shed and “No Trespassing” signs provided the owner of the parcel with constructive notice of your adverse possession. This letter is limited to our analysis of this one element. At this stage, we believe this element is the only one in dispute, but for an action to quiet title to succeed, we would have to prove all five elements required of an adverse possession claim. Facts You purchased a piece of property in North Lake Tahoe from your uncle in June 2015, believing that the property included both a large parcel and a smaller parcel across an alley from the larger parcel. You live in a house on the large parcel. On the small parcel, you installed a shed where you store snow removal equipment. You used a combination lock to secure the shed. In October 2020, you discovered that teenagers were hanging out in the shed. You chased them away and changed the lock’s combination. You also posted “No Trespassing” signs on the small parcel. In June 2022, Aaron Krieger, the owner of the property adjacent to the small parcel, claimed that, according to county records, he owned the small parcel. He told you that he had been living in Norway for the past seven years and had been renting out the property, though he said he p. 313 could not provide a copy of any lease agreements. You are unaware of any tenants. Now, you seek to quiet title by proving that you acquired the parcel through adverse possession. Page 2 of 3 California Adverse Possession Law To establish adverse possession in California, we need to prove five elements: (1) actual occupation that is sufficiently open and notorious to give the owner reasonable notice; (2) possession hostile to the owner’s title, which includes possession that occurred through mistake; (3) a claim that you have title to the property; (4) continuous and uninterrupted possession for five years; and (5) payment of all property taxes. The purpose of the open and notorious element is to give the owner actual or constructive notice of the adverse possession. To be open and notorious, the use of the property must be visible to the true owner and others. When a use is open and notorious, it raises the presumption that the owner had notice of the adverse possession. But the owner is not required to have actual notice of the adverse use. And an owner cannot defeat an open and notorious use by ignoring it. An adverse use is sufficiently open and notorious to provide notice when the claimant has enclosed, maintained, or improved the land in some way. For example, in a case called Nielsen v. Gibson, where the adverse claimants fenced, irrigated, improved, and built a go-cart course on a property, the possession was sufficiently open and notorious. Similarly, in the case Lobro v. Watson, where for twenty-five years the adverse claimants occupied the property and made improvements at their own expense, including fencing the lot, replacing the roof, and planting trees and flowers, the court held that the use was open and notorious. In contrast, possession of a vacant lot was not sufficiently open and notorious where the land was not improved or regularly cultivated and where there was conflicting evidence about how much the claimants used the property. In that case, Klein v. Caswell, one claimant testified that she occasionally visited the property over a twenty-two-year period for picnics, and at one time, she asked a neighbor to keep the lot cleaned up. But several neighbors who frequently passed the lot said that it always appeared neglected, the same as other unoccupied, vacant lots in the area. The court held that this “slight use” was not sufficient. p. 314 Page 3 of 3 Analysis of Whether The Use Was Open and Notorious By installing and maintaining a locked shed on the small parcel and hanging “No Trespassing” signs on the shed after you discovered that teenagers were using it without your permission, you likely used the property in a way that was sufficiently open and notorious to provide reasonable notice to Krieger of your adverse possession. Like a fence or a go-cart course, your shed and signs were visible to Krieger. The shed and signs showed him that you were occupying, maintaining, and improving the parcel, as in the Nielsen and Lobro cases, where the claimants installed fences, planted flowers, and otherwise improved the properties they were adversely possessing. In addition, your use of the property was active and not occasional. Your use of the small parcel goes beyond the occasional picnic in Klein that was held to be an insufficient use. Further, there will not be conflicting evidence about your use of the property as there was in that case. Krieger may argue that he did not have actual notice of your use because he was in Norway during the five years that you used the property. He could argue that the shed falls short of the level of improvement necessary to give notice. The shed and signs are not as significant as the improvements made by the claimants in Lobro, who replaced the roof, made additions, and installed a fence. Even so, actual notice is not required. Krieger cannot defeat your open and notorious use by willfully ignoring it. In Nielsen, the court rejected a similar argument by an owner who had been in Ireland during the period of adverse possession. Based on this analysis, we think that a court would likely hold that your use of the property satisfied the open and notorious element for adverse possession. Next Steps You will hear from us soon summarizing the next steps that we can take to pursue an action to quiet title. As always, please let us know if you have any questions or would like to discuss this in person or on the phone. You can call me directly at (415) 888-9999. Very truly yours, Sarit Levi-Goodman p. 315 Example Letter 35.3 (annotated) Example Letter 35.3 STERN, SOGARD & MURANO, LLP 5 CALIFORNIA STREET, 34TH FLOOR SAN FRANCISCO, CA 94111 PHONE: (415) 333-4444 January 22, 2023 VIA EMAIL & U.S. MAIL Ms. Adara Wiking The Rivers Law Group 278 San Carlo Way, Suite 800 San Jose, CA 95002 Re: Discovery issues in Sato v. Schmidt, No. C10-288228 Dear Ms. Wiking: Thank you for granting an extension of time through today for Sarah Schmidt to respond to Plaintiff’s First Set of Interrogatories and First Set of Requests for Production. Ms. Schmidt’s responses are enclosed.  As I mentioned in the voicemail that I left for you yesterday, we would like to schedule Frederik Nyongo’s deposition as soon as possible. We have been happy to work with you on a deposition schedule that is convenient for everyone involved, but five months have passed since we noticed this important deposition. And it has yet to be scheduled. If Mr. Nyongo is not made available in the next month, we will be forced to move to compel. Please let me know by 5 p.m., Friday, January 27, when Mr. Nyongo’s deposition can go forward. I look forward to hearing from you. Please let me know if you have any questions. Very truly yours, Rebecca McCarthy Enclosures cc: Brandon Murano Notes 1. See page 167 for other examples of wordy warm-ups and more tips on how to use plain language.