Putting the Conversation with the Defense Lawyer in Writing

It seems like Lawyer 101 advice: if you are making an agreement with the opposing lawyer, get it in writing.

Few lawyers do it. There are two reasons for this. The first is laziness. If this is your problem, this blog post will not help.contract

But I think another reason people sometimes do not send letters memorializing agreements is that they feel like it is almost a breach of the trust between counsel. We all know some defense lawyers who would shoot their own mother in the head for the slightest of advantages. It is easy to send a confirmation letter to that lawyer. (You should not even be talking to that guy on the phone.) But what about when you like and trust the other guy? You feel a little like a jerk sending out an “I’m writing to summarize our agreement today” letter, don’t you?

Do it anyway. First, people just forget. Defense counsel are often juggling a lot of different cases. They don’t remember half of the agreements they made so the lawyer might honestly not remember. Also, even good people have selective memories sometimes. The selective memory comes out in the heat of competition and the heat of battle, particularly during or before trial when the adjuster and/or in-house lawyer supervising the case begin to take a closer look at the file. And…some of them that you think are honest are just liars. Don’t try to pick the good guys and the bad guys on this one.

You should practice as if any agreement not in writing will only be enforced if it hurts your case.

Updated:
  • Not to mention something in writing can also help clarify if there’s a misunderstanding in the verbal agreement. I prefer to word the letter more along the lines of: “for my records, and to make sure I have everything correct…”

    It might be out of laziness, but I’ll sometimes just do a quick email instead of actually mailing a letter. It actually seems to work better because opposing counsel is more likely to reply/confirm.

  • Ron Miller

    I agree. Certainly, tone matters. And I think an email is as effective as a letter with most judges.

  • Jenna Borum

    Thanks for the post! A good reminder to always get it in writing.

  • I also see that in many of my cases these verbal agreements can be “forgotten”. It may not be intentional everytime, but also caused by heavy workload, failure to take good notes, and the time delays between conversations.

    Very good advice for all lawyers.

Contact Information