A demand letter is an attorney’s formal request on behalf of a client for either money or action from a third party. Demand letters can be sent before or after a lawsuit is filed. Although these letters typically demand an amount of money, they can also ask for actions including apologies or retractions for a third-party’s statements. (The opposite of a demand letter is an offer letter, by which a third party’s attorney proposes the terms of a settlement.)
Last week, upset with columns in the New York Times, Sean Hannity’s lawyer sent a demand letter to that paper claiming the paper had defamed Hannity and demanding a retraction of the allegedly defamatory statements. (They alleged the Times distorted Hannity’s remarks when it published columns claiming he downplayed the coronavirus.)
The Times’s lawyer rejected Hannity’s demands, replying tersely that “[i]n response to your request for an apology and retraction, our answer is ‘no.’”
The key insight: simply sending a demand letter does nothing to determine whether, as a matter of law and fact, a client has been defamed, let alone whether there’s a practical, good-faith lawsuit that could be filed on that client’s behalf. On the contrary, demand letters may over-state a possible claim against a third-party, either to intimidate the third-party into a settlement or simply to satisfy a client’s desire to assert himself (as may have been the motivation in Hannity’s case).
Demand letters do not have to meet even the rudimentary legal threshold of a complaint in either state or federal court.
Local reporting has, over the last year, relied on pre-litigation demand letters or press releases when reporting controversies in the area (see 1, 2). That’s not wrong, but it can be insubstantial: presenting one side’s claims and contentions as though a reflection of the state of the law is dubious and misleads one’s readers.
This approach may lead to a few clickbait headlines, but only at the cost of a sound understanding. Callow reporters and histrionic editors may think they have something big, really big, but viewing a controversy mostly though a demand letter is a shallow, and so sometimes misleading, approach.