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Closing and Other Sweet Sorrows

By Tom Van Flein

What is the best way to end a letter to opposing counsel?
For years we have accepted, if not encouraged, the rather bland “sincerely” or “yours truly” or my personal favorite, “very truly yours.” But then, lawyers were once required to wear powdered wigs and three-piece suits, and many still do in some of the more “traditional” jurisdictions, such as Juneau. Perhaps there is room for some improvement in our correspondence, now that we are in the new millennium.

How “sincere” or how “true” are our letters to opposing counsel, anyway? “Very” true and “very” sincerely, apparently. St. John’s University (through its business school web site) recommends closing with “Sincerely yours, Sincerely, Cordially [or] Cordially yours.” Some authors conclude their letters with “best wishes.”

How much reliance can we put on this sentiment when our best wishes may be for opposing counsel’s client to lose on every claim? The Small Business Administration posits that “Good letter writing is a lost art in our society today. With the onslaught of electronic mail, voice mail, and faxes, good letter writing has gone the way of the dinosaurs. And yet, a well-written, personalized business letter can do wonders for your business relationships.” Since we all would like to see the “wonders” that will flow from better letters, let’s start with our closings.

Some have suggested words of encouragement to close a letter, much like a celebrity autograph, such as “stay in school,” or “stay off drugs.” Thus, a typical letter could flow as follows: “Please tell your client that my client laughs at the latest offer. Stay off Drugs, Your Name, Attorney at Law.”

Others believe we should show a friendlier side and try to humanize our profession, signing off with “all my love,” or, according to my secretary, “hugs and kisses.” This appears to wander into the area of love letters, which could have its own unintended consequences. As a sidenote, however, letter expert Mark Dovel recommends closing with the following: “Yours unconditionally, ... With heartfelt love, ... I long for your touch, ..." Closings of lesser impact may include, With warmest regards, ... With affection, ... With fondest memories, ... Until our next meeting, ... Yours truly.” Of course, he was talking about love letters, but what would happen if you closed your next letter to opposing counsel by saying “with heartfelt love?” On second thought, perhaps that is not such a good idea. And closing legal correspondence with “yours unconditionally” could be construed as a contract offer, which, if accepted, could lead to unfortunate consequences, such as a lifetime of indentured servitude.

Not too long ago (100 years or so), some people signed off with more somber closings, such as “May the God of all peace comfort your hearts, is the prayer of your humble servant and brother in the Lord.” In England of yore, you could close with “Thus indebted to you for your pains taken for me, I bid you farewell.” (Of course, petty criminals could also be flogged. But that is the subject of next month’s column.) But these archaic closings could prove worthy today. Perhaps you are asking for an extension of time for a pending deadline. How callous and indifferent would your opponent have to be to ignore your closing comment that you are “indebted to you for your pains taken for me.” And if your request were denied, you would know for sure that the gloves were coming off.

The Europeans sometimes used “szervusz” (Hungarian) or the Austrian and German “servus” which was the shortened version for the Latin “servus humillimus” or “I am your most humble servant.” This closing is appropriate today only when writing to the court or your firm’s bookkeeper.

There are some clear lines of how not to close a letter—or at least things to avoid in a letter. For example, in State v. Noriega, 690 P.2d 775 (Ariz. 1984), the court noted that it “strongly disapprove[d] of the conduct of both the defense counsel and prosecutor engaging in the degrading public display of hurling obscenities at one another in court even after court had recessed. The accusatory letters sent by both attorneys thereafter did little to defuse the hostility.” So, we know that “hurling obscenities” in court and in letters should be avoided.

We also know that it is not a good idea for a trial lawyer to insult the trial judge by sending a letter accusing the judge of being a racist…“I have never observed a white person in a position of power such as yourself apologize to a black person even when they know they are wrong, ” and admonishing the judge to “re-read your statements with that thought in mind. Once you do this it should be apparent to you that your statements show no regard for me as a human being.” In re Guy, 756 A.2d 875 (Del. 2000). This letter lead to a suspension.

The SBA notes that “business correspondence does not have to be dry and tedious.” Easy for it say. Just try writing a status report regarding your expert economist’s deposition testimony where the biggest issue in the case is a heated battle on what discount rate to apply. However, “dry and tedious” letters appear to be a wiser course, rather than insulting the judge or “hurling obscenities,” so, like many things, there is some compromise that is necessary.

I close here with my new sign-off, which I plan to add to my letter template: “With all my love, and most obediently, and with my sincere hope that you stay in school, (and off drugs), I remain your humble Editor.”

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