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When the snark kicks in, cease and desist

It seems cease and desist letters and witty responses to them are all the rage these days. Online you can find an exceedingly polite letter sent by a lawyer for Jack Daniel’s and what some have dubbed “The Best Response to a Cease and Desist Letter Ever” sent on behalf of a website owner embroiled in a dispute with the Township of West Orange, N.J.

While a great amount of entertainment has been derived from these letters, like any good joke, much of the humor lies in the truth.

We’ve all gotten such letters. More often than not, they arrive with the Friday mail, and if we’re really lucky, the day before a long weekend — a scathing indictment of the myriad of travesties perpetrated by our client against a devout corporate citizen, demanding that we not wait but take immediate action to avoid the full force of the U.S. legal system being brought to bear. The legal effect of these letters is minimal. The annoyance effect is maximal. But the practical effect of such letters on our profession may not be getting the attention it deserves.

At the outset, any meaningful content to be gleaned from one of these letters is by and large hidden behind the veil of lawyer-speak.  Any letter worth the firing of an ink jet must contain at least the following: (1) oblique claims of violated statutes; (2) references to the dual sins of unfair competition and misappropriation of trade secrets; (3) recitations of incalculable damages; (4) allusions to sacred common law; and (5) implied threats of ominous legal action.  Of course, such threats must be accompanied by the requisite sprinkling of adverbs, including but not limited to, “expeditiously,” “amicably,” “flagrantly” and “surreptitiously.”

Such language, while allowing lawyers an outlet for the creative writer inside them and stoking the fires of bellicose clients, does little to help resolve the issue. Instead, it reinforces the public’s worst image of lawyers. One online commentator described such letters as “over-wrought text, intended to convey a pretension to an enlightened style of discourse, typically by stringing together a series of outrageously accusatory phrases, apparently for the lawyer’s own twisted amusement in a manner likely to invite reprisal.”

So, when we set out to write such letters, lawyers should consider not just the audience on the other side of the table, but the audience on the same side of the table (and maybe even the internet).  While they may sound good, these letters open us up to the type of criticism set out above.  Moreover, simple, straight-forward and plain English is likely to communicate the same point, in fewer words and with more effect.

The incendiary language often employed in cease and desist letters may also have an unintended consequence for the legal profession as a whole.  Such language reflects a lack of respect for an institution intended as a place to resolve, not foster, conflict.  Often my clients have come to me because they feel they have been cast into the middle of a storm and are looking for a place of respite and recovery.  Lawyers lobbing inflammatory language back and forth only stirs the waters and could lead potential clients to avoid seeking the protections of the legal system, choosing to solve things on their own battlefields that are more familiar and less costly.

If such letters are sent with the intent of pointing out a violation and ending it, that result can easily be achieved through simple, uncomplicated communications, or better yet a phone call or in-person meeting between lawyers.

By firing off the typically confrontational cease and desist letter, we may also be indicating to our clients that our interest doesn’t lie in solving the problem but in waging the battle.  While it is only human to beat one’s chest in a preparation for battle, my clients’ biggest fear is of uncertainty.  If we demonstrate to our clients that we cannot resolve conflict or do not have an interest in resolving it, logic dictates they will turn elsewhere to settle their disputes.  Wordy salvos fired back and forth between lawyers will inflict alternating damage but will do little to create certainty.

This does not mean you should forego letter writing.  Often legal theories and potential solutions are worked out during the course of writing and responding to letters.  But maybe we would be better served if before sending such a letter, we each called our mothers or even our children and read it aloud before sending it. In the end, didn’t we learn everything we ever needed to know in kindergarten?

 

Marc E. Gustafson is an attorney with Essex Richards in Charlotte

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