Confirming Letters

by David L. Lee

Lawyers send to and receive from one another all sorts of letters all the time. Some letters are just covers for some item being transmitted (e.g., "Enclosed please find ...."). Some deal with bar-association matters. Others, such as demand letters or settlement offers, may have substantive import. And then there are confirming letters.

I'm sure you've gotten such letters: "This is to confirm that you agreed that blah, blah, blah." Perhaps you've even sent some. The understandable policy reasons for writing down terms of agreement and the other biases of our culture and legal system for documentary evidence over oral testimony mean that confirming letters are probably with us for the foreseeable future. But no matter how used to confirming letters we are, they are a blight on the practice of law.

The first reason confirming letters are a blight on the practice of law is that they contribute to the decline of civility so bemoaned these days. Confirming letters contribute to this decline in civility in three ways: 1. the implications of sending a confirming letter at all (rather than going on a handshake or its telephonic equivalent), 2. the tone of the typical confirming letter, and 3. the "gotcha!" aspect of such letters.

The second reason that confirming letters are a blight on the practice of law is that they create a lot of work for scant substantive gain. After all, even the dimmest lawyer can usually tell when a confirming letter is being written to be "Exhibit A" to some motion and is quick to write his or her own version of the events.

Nevertheless, if we must deal with confirming letters, we should do it well. The following suggestions may help:

Consider going on a handshake. If this is a scary concept, you can try a cautious, one-bite rule, in which you accept your opponent's oral assurances on some minor matter in which you would not be hurt if your opponent stabbed you in the back. As you get to know your opponent better, you may feel comfortable going with more handshake agreements and, perhaps, on non-trivial topics.
If the other lawyer is extending you a courtesy, write a thank-you letter rather than a confirming letter. Have you ever agreed to reschedule an event or extend some deadline as a courtesy to another lawyer, only to receive in the mail or over the fax a very cold-sounding "This is to confirm" letter? Courtesies should be acknowledged as such. How much more civil to confirm with a thank-you letter, like:
Not only would such a letter make Mom proud, but it may help civility make a comeback. And -- sneaky point (we are lawyers, after all)-- a thank-you letter confirms every bit as well as a confirming letter. In fact, the thank-you may confirm even better, by memorializing your reliance in an informal-sounding way ("As I told you, I was in a scheduling bind"), while simultaneously raising fewer suspicions.
Don't write a thank-you letter if the content of the letter makes the "thank you" sound sarcastic. By the same token, if the other lawyer did not extend a courtesy, then a thank-you letter may just sound sarcastic. Sometimes the sarcasm is created by the lawyer. "Thank you for finally calling me back after I had left fifteen messages", for example, could probably be rewritten as simply "Thank you for returning my call". On the other hand, there may be some situations, such as when you are confirming a date for a hearing on a motion for sanctions, in which a thank you would be inherently sarcastic. In such situations, avoid the thank you.
If you aren't willing to go on a handshake and a thank-you is not appropriate, write a straightforward confirmation. The more your confirming letter is factual, not characterizing, and the more it simply confirms, rather than getting into personalities, the better it is both for civility and for Exhibit A, should it come to that. Related to this rule is...
Don't memorialize your own unreasonableness, incivility, or sarcasm. Just as your own confirming letter can be "Exhibit A" for you, so can it be "Exhibit A" against you. Remember the (male) lawyer who was recommended for a reprimand by a review board of the ARDC for sending a letter to his female opponent that included "confirming" that he had threatened to perform a clitorectomy on her? (See, "ARDC Panel Urges Reprimand in Clitorectomy Threat", Chicago Daily Law Bulletin, 3/9/93 at 1.) That example may be extreme, but lawyers are always confirming their own unreasonableness. Hardball lawyers are especially prone to shooting themselves in the foot this way. A confirming letter that is not all sweetness and light may be necessary, but if you're about to mail out such a letter, do yourself a favor and get a reality check. Run your letter by a trusted colleague or outsider and ask how you come across. On occasion, you'll be glad you did.
If you receive a "confirming" letter that you suspect will become "Exhibit A" to some motion, reply by handwriting notes in the margin. When you get a confirming letter that looks as if it may be slanted, trouble, or otherwise drafted to be "Exhibit A" to some motion, do the following: make a photocopy of the offending letter, put the original in your file, then take a pen and neatly (so that your handwriting can be easily read, print if need be) note in the margin of the offending letter your disagreements or your version of events. (A tip: if the margin is not big enough, photocopy the original at 95% to create bigger margins.) This approach has many advantages. If Exhibit A looks like:
then it has obviously lost much of its power, because you are getting your version of the events before the judge immediately. And avoiding this loss of power by attaching the unannotated Exhibit A would not only require an extraordinary amount of chutzpah on the part of your opponent, but would also leave him or her wide open to the riposte that he or she was hiding from the judge the most important piece of evidence: your response.
If your opponent seems a devotee of incivility, try dictating his or her confirming letters yourself. If your opponent asks you for a courtesy, and you suspect (based on sad experience or otherwise) that you will not receive similar courtesy should you ask, then try dictating your opponent's confirming letter yourself. Say something like, "I'll be glad to reschedule the motion as a courtesy to you if you send me a letter that says 'Thank you for the scheduling courtesy. I'd be happy to extend similar courtesies to you in the future.'" Sometimes, it shames your opponent into being more courteous and civil.
Don't rise to their bait and don't stoop to their level. Just because your opponent is being a jerk doesn't mean that you should be one, too. Judges like deciding which lawyer started an incivility battle just about as much as parents like deciding which child first teased the other. Of course, if it is possible to subtly point out that you are not stooping to your opponent's level, consider doing so. Here's a letter that shows how our country's most famous lawyer handled that problem when his policy on emancipation was questioned in the middle of the Civil War:

Put these tips into practice, remember how Old Abe responded to Horace Greeley, and help the better way to do these letters be confirmed.

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