Colorado Law Compass

Colorado Law Compass wants to congratulate Texas lawyer Bill Ogletree for yesterday’s wave of unwanted attention in the blawgosphere.  Mr. Ogletree’s name was all over the place for a Smoking Gun story about a letter he wrote to the City of Houston, Continental Airlines, and the Houston airport’s food court management company.  During a layover at the Houston airport, Mr. Ogletree stopped for a bite to eat.  When he did, he took off his jacket, and, in his haste, walked off without it.  When he went to retrieve it, it was of course gone.  I mean, it was an $800 Polo leather jacket with a fancy plaid lining.

Instead of chalking it up as a lesson learned, the 62 year old lawyer is pointing his no doubt well manicured fingers at the above three entities.  In his letter, he threatens them with legal action unless they cough up $800. His logic is simple: unless they pay the $800, they will be forced to defend themselves in court and rack up unknown gazillions in attorneys’ fees and costs.  He is claiming that, as bailees, the three entities had a duty to protect the jacket.  I don’t see a duty here.  How are the airport, city, or food court management supposed to be responsible for every piece of personal property that comes through the airport, especially since he is not claiming to have actually put it in the possession of any person?  He left it on some chair, no doubt, and some opportunist grabbed it the second he walked away.

I’ve written a fair amount of demand letters, and this is what I always tell my clients who ask me to write them: they hardly ever work.  I don’t expect Mr. Ogletree’s to have any effect either.  The first essential element to an effective demand letter is that they have to have some support in the law.  Since Mr. Ogletree’s  argument rings false, the responding lawyers are probably not worried about having to defend such a case.  In fact, they might be able to get attorneys’ fees against Mr. Ogletree for filing a groundless lawsuit.  In addition, while Mr. Ogletree threatens them with the time and expense of defending such a suit, he fails to mention that prosecuting such a case is going to take up a fair amount of time on his part.  This is time that he is not going to be generating revenue for his law firm, or even spending time with his family on much more pleasant pursuits.

The second essential element to a demand letter is something the writer has absolutely no control over: the other party’s ability to resolve the matter.  Even if the other party doesn’t dispute your position, he may not be able to meet your demand, e.g. pay for your services rendered.  While a lawsuit might be the next step, the threat of a lawsuit is likely not going to be enough to get him to cough up the money.

My point isn’t that you shouldn’t write a demand letter, or even that you shouldn’t hire a lawyer to write the letter.  My point is that you should set your expectations low on the results you’ll get from such a letter.  After you get no response, you have a choice to make: put up or shut up.  You either have to file a lawsuit, or walk away with your loss.

photo: http://www.flickr.com/photos/cindy47452/ / CC BY-NC-SA 2.0