The California Litigator

March 7, 2011

By Barbara Haubrich-Hass, ACP/CAS

Most bodily injury claims are settled before a lawsuit is filed, and before the insurance carrier is required to retain an attorney to defend the insured.  Having a well organized and convincing demand package increases the chance of getting the highest settlement.  This article will discuss some of the do’s and don’ts of writing a strong demand letter.  Because the vast majority of personal injury claims relate to automobile collisions, the examples used in this article will relate to an automobile incident.


A case is in a position for an attorney to send a demand letter to the at fault party’s insurance carrier when:

  1. The client has completed medical treatment, and the doctor has provided an opinion that the client is permanent and stationary;
  2. If the client has future medical care needs, all doctor’s opinions outlining the specific future treatment needed and the cost of that treatment have been obtained;
  3. All medical records and medical billing have been obtained;
  4. All other special damages have been confirmed and documented, such as loss of earnings, property damage, and miscellaneous out-of-pocket expenses of the client;
  5. The investigation has been completed, including:
  •  Obtaining all investigative reports from public agencies, such as police, fire, or OSHA.
  •  Obtaining all photographs and other documentation that was part of the public agency’s investigation.
  •  Confirming all at-fault parties.
  •  Confirming all insurance available to the client.
  •  All other investigation necessary to that particular case and requested by the attorney, such as witness statements, scene and vehicle inspections, and other preservation of evidence.


Attorneys have considerable flexibility in conducting settlement negotiations.  There are, however, limits.  Exceeding these limits could expose an attorney to a risk of liability or malpractice. 

  1. A paralegal is prohibited from entering into a settlement agreement or negotiating a settlement on behalf of a client.  This is the non-delegable responsibility of the attorney.  As a paralegal, it is your responsibility not to cross this line.  The attorney can delegate the task of preparing the demand package.  The attorney can delegate the task of calling the client to keep the client informed of settlement offers, but the paralegal is not permitted to interpose an opinion or provide advice on the merits of the offer.  Additionally, the attorney can delegate the task of calling a claims representative with the attorney’s counter offer, but the paralegal is not permitted to enter into settlement discussions with the claims representative.
  2. As part of the preparation of the demand package, confirm that the attorney has obtained the client’s settlement authority.  The client has the absolute right to reject or accept a settlement.  Therefore, the client’s express authority is required to settlement a claim.  [Blanton v. Womancare, Inc. (1985) 38 C3d 396, 404]
  3. An attorney has a statutory duty to keep the client informed of all settlement offers [Bus. & Prof. Code § 6103.5(a)]  An attorney is to promptly communicate to their clients all “amounts, terms, and conditions of any written offer of settlement made by or on behalf of an opposing party.”  [Bus. & Prof. Code § 6103(a)]  Although the statutory duty refers only to written settlement offers, it is a good practice to communicate all settlement offers, even if they are verbal. 
  4. When a claims representative makes an offer of settlement, it is important for the attorney to make sure the client understands that:
  • The offer will not remain open indefinitely.  It can be withdrawn.  However, once withdrawn, there is no guarantee the offer will be renewed.
  • The offer is not the amount the client will actually receive in settlement.  The attorney needs to explain the net amount the client will receive by accepting a particular offer, minus case costs, attorney’s fees, and liens.
  • What legal effect the acceptance of an offer has to the client.  For example, that this is a final settlement; that no further claims can be made against that party. 


A demand letter should contain the information discussed below.  It is helpful for the attorney and claims representative if the demand letter contain headings, such as liability, injuries and medical treatment, special damages, and conclusion.

A.      Introduction of the representation of the client, and identifying on whose behalf the demand is being presented. 

The first paragraph should be an introduction and statement on whose behalf the demand is being presented. 


This correspondence is written for the purpose of proposing a settlement of the claim of my client, Innocent Victim, in connection with personal injuries that [he or she] sustained in the motor vehicle collision that occurred on January 14, 2010, involving your insured, Bad Driver.

B.      A statement of the facts of the incident.

The second paragraph should include a narrative statement of how the incident occurred, and an explanation of who caused the incident.  The narrative statement should include facts that support your conclusion, such as violations of traffic laws, witness accounts of the incident, or other facts contained in the police report.  Also included in the narrative statement should be the age of the client, the seat position of the client, whether the client was wearing a seatbelt, and any other facts helpful to the claim, such as damage to the vehicle.



This claim arises from a motor vehicle collision that occurred on January 14, 2010, on Coffee Road in Anytown, California.  At the time of the collision Innocent Victim, age 42, was the restrained driver of a 2009 Toyota Camry traveling southbound on Coffee Road.  The collision occurred when Innocent Victim came to a stop for a red light at the intersection of Coffee Road and Sage Street.  Bad Driver, driving a 2008 Lexus, was also traveling southbound on Coffee Road and failed to stop the Lexus for the red light thereby causing the Lexus to rear end my client’s vehicle.  The force of the impact was so severe that it pushed the Toyota Camry into the intersection, and caused major rear end damage to the vehicle

The Anytown Police Department responded to the scene of the accident.  The reporting officer determined that your insured, Bad Driver, was the at fault party for this collision.  Additionally, while at the scene of the collision, Bad Driver stated that [he or she] was momentarily distracted because [he or she] had just received a telephone call on [his or her] cell phone.  It should also be noted that a witness at the collision stated that your insured was looking down at the time of the collision.   I have attached a copy of the traffic collision report.  Your insured was cited with violation of Vehicle Code §00000.0.

C.    A narrative summary of the medical treatment and injuries to the client.

The next section of the demand should include a narrative summary of the medical treatment and injuries to the client.  You should always use the medical diagnosis that the doctor lists as the injury.  Using clinical terms gives the injury more credibility and a higher level of seriousness.  For example, a herniated disk at L4-5, S1 is a much stronger description of an injury than low back pain.  Also included in this portion of the demand is a discussion of the pain and suffering (general damages), and any other inconveniences suffered by the client.  When describing the pain and suffering, think about:

  1. The length of the client’s recovery.  It is reasonable to assume that the longer the recovery, the longer the client was in pain.
  2. If the injuries are permanent.  Some injuries can be permanent, such as severe burns, brain injuries, loss of a limb, a fracture requiring surgical screws, and scarring.  It is important to emphasize any long term consequences to the client’s injuries in the medical summary.
  3. If the client required pain management.  Whether the client was prescribed pain medication, or referred to a physician for pain management, is an important component of a good medical summary and shows the level of the pain. 
  4. Major or catastrophic injury cases.   Major injuries often involve other types of general damages other than the typical pain and suffering, such as disfigurement, disability, impaired enjoyment of life, susceptibility to future injury, and shortened life expectancy.

 I.  Impaired Enjoyment of Life:  Damages are awardable for the detriment plaintiff has suffered, and will continue to suffer, from an inability to enjoy life as he or she could have but for the injury.   Examples include:   

  •  Inability to take care of yourself, such as dress, bathe, or feed yourself; drive a car, go on walks, shop, etc.
  •  Inability to engage in recreational or social activities.
  •  Inability to engage in normal family activities or household services.
  •  Inability to pursue previously enjoyed hobbies.
  •  Loss of senses, such as taste or smell.
  •  Inability to provide care, comfort, society, and protection to, or otherwise interact with, spouse and children.

II.  Disfigurement:  Permanent scarring, walking with a limp, paralysis, or any other changes in the plaintiff's physical appearance usually causes added pain and suffering.

III.  Shortened Life Expectancy:  Certain injuries are so severe that they actually diminish a plaintiff's life expectancy. This in turn can contribute to additional anxiety, worry, and impairment of the ability to enjoy life, and increases the pain and suffering damages.

IV.  Loss of Consortium:  Sometimes an injury is so severe that the family unit, as it was prior to the incident, will never be the same.  A loss of consortium claim is only recognized for injury to a relationship arising out a marriage or registered domestic partnership.  Although a loss of consortium action derives from the injury to a plaintiff’s spouse or registered domestic partner, it is separate from the injured claimant’s damages.  A loss of consortium claim has its own independent existence and a separate measure of non-economic damages.   Loss of consortium is recoverable for all detriment suffered as a result of the non-injured claimant’s capacity to provide previously rendered services, and to engage in sexual relations with the injured claimant, for the shortest of:  1) the period of the incapacity or, if the incapacity is permanent, 2) the non-injured claimant’s life expectancy, or 3) the injured claimant’s life expectancy. 

Example Medical Summary:


To further assist you in evaluating Innocent Victim’s claim, I herewith enclose copies of the following medical records:

  1. All Alert Ambulance Service
  2.  Mercy Hospital
  3.  Faculty Surgical Group
  4.  San Jung, M.D.
  5.  CVS Pharmacy
  6.  All Medical Supply
  7.  Achilles Prosthetics & Orthotics
  8.  Pacific Anesthesia

Immediately following the accident, Innocent Victim was transported by ambulance to Mercy Hospital. Innocent Victim presented with a traumatic distal tip amputation of the right fourth digit finger with bone and nail exposed and right scalp lacerations.  X-rays of the chest, neck, right hand and a CT scan of the head were performed

The distal tip of the finger having been placed on ice upon arrival to the emergency department was re-attached to the finger under local anesthesia. The scalp lacerations were also repaired.  Innocent Victim was given a prescription for Keflex and told to follow up with the trauma clinic for suture removal in 2 to 3 days. 

On January 15, 2010, Innocent Victim was seen by Sam Jung, M.D., his primary care physician, with complaints of bleeding to the right side of the head.  Innocent Victim was referred for x-rays.  

Innocent Victim was seen in follow up at Mercy Hospital on January 17, 2010, and January 18, 2010, for wound check.  When last seen at Mercy Hospital on January 25, 2010, the sutures were removed and the finger was bandaged.

Innocent Victim was seen again by Dr. Jung on February 10, 2010, with complaints of swelling to the right side of the head. Dr. Jung discovered a pea sized granulation. Dr. Jung diagnosed fibrosis and prescribed vitamin E cream.

On February 20, 2010, Innocent Victim was seen at urgent care with complaints of a foreign body in the scalp lacerations. A piece of glass that was imbedded in the lacerations during the accident was removed from the right side of the head.

When last seen by Dr. Jung on May 10, 2010, Innocent Victim’s finger was healing but was still tender to touch.  I have enclosed laser color copies of the permanent disfigurement of Innocent Victim’s right fourth digit finger. 

D.      An itemization of the client’s medical specials and out-of-pocket expenses.

List all of the medical expenses following the medical summary.  The medical expenses should be listed by medical provider with the total bills for that provider.


Attached please find medical billings for Innocent Victim in connection with this incident.  As a result of this incident, Innocent Victim has incurred the following medical specials: 


All Alert Ambulance Service

$  1,971.47

Mercy Hospital


Emergency Physicians Billing


Faculty Surgical Group


Sam Jung, M.D.


CVS Pharmacy


All Medical Supply


Achilles Prosthetics & Orthotics


Pacific Anesthesia


Misc. Co-Payments




E.       An itemization of the client’s loss of earnings, if applicable.

If the client missed any time from work, include an itemization of the client’s loss of earnings.  Include any documentation from the employer that supports the lost income and time missed from work.



At the time of the collision, Innocent Victim was employed with Kraft Accounting Service as a receptionist.  Due to the injuries Innocent Victim sustained in the collision, [he or she] was unable to work for a total of 10 days, 8 hours per day for a total of 80 hours.  At that time [he or she] was earning $13.00 per hour.  Accordingly, Innocent Victim’s loss of earnings claim is $1,040.00.  I have attached a copy of the loss of earnings verification signed by the General Manager of Kraft Accounting Service supporting this loss.

 F.       An itemization of the client’s property damage or property damage deductible paid, if applicable.

If the client sustained property damage or was required to pay a deductible for the property damage, include a statement relating to that loss.


As a result of the collision, Innocent Victim’s 2009 Toyota Camry was totaled.  As a result, Innocent Victim was required to pay a deductible of $500.00 as part of the property damage claim.

G.     A specific settlement demand amount.

Conclude the demand is a settlement figure. 


Based on the foregoing, I have been authorized to settle my client’s claim in the amount of [amount to be determined by attorney] in full settlement of the claim. 


When writing a demand letter, your focus should always be on giving the most convincing arguments as to why you should receive a specific settlement.  Initially, it is generally best to limit voluntary disclosure of information that may weaken the claim.  Additionally, some information should be kept confidential.

  1. Your client’s statement to the attorney about the incident is a confidential communication, protected by the attorney-client privilege.  So long as the statement remains “confidential,” disclosure cannot be compelled.  [Evidence Code §§ 950 – 962]  However, once the statement is disclosed to third parties, the privilege is waived.  [Evidence Code § 912]  Therefore, it is important not to include your client’s statement in a settlement package, unless directly instructed to do so by the attorney.
  2. Even if the client is somewhat responsible for the incident, admitting comparative fault in a demand package is unwise.  It is not the attorney’s responsibility to make arguments against the client.  If the claims representative argues comparative fault, then the attorney can address this issue during settlement negotiations. 
  3. It is generally imprudent to volunteer information about the client’s earlier injuries or preexisting medical conditions.  However, there are times when the earlier medical history should be volunteered if it will enhance the value of the claim.  For example, where the injury was minor, but aggravated a preexisting condition causing severe disability.  Additionally, if the claims representative already has the prior medical history, it may be necessary to furnish the prior medical records to show the prior injury was not the cause of the current injury. 
  4. A plaintiff is entitled to recover the reasonable cost of past medical care and services. The law, however, provides that the reasonable compensation for medical expenses actually billed may not exceed the amount actually paid or required to be paid, whether paid by the plaintiff directly or by any collateral source.   [Greer v. Buzgheia (2006) 141 CA4th 1150, 1156–1157; Hanif v. Housing Auth. of Yolo County (1988) 200 CA3d 635, 639–644]  It is unwise to list the Hanif reductions of medical bills in a demand package, but rather list only the total medical specials actually billed in the demand.


©Copyright 2011

DISCLAIMER: Barbara Haubrich, ACP/CAS, is not an attorney.  Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter.  The information from The California Litigator is not guaranteed to be correct, complete, or current.   Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this newsletter may be linked.






0 #6 yr 2012-02-24 09:32
0 #5 Whitney Tesdahl 2011-06-14 10:15

Loved the article and superb job!! It is written in plain English and it is easy to follow for this paralegal student! Looking forward to other articles of yours in the future!!
+1 #4 Ruby Manawis 2011-03-16 11:46
Way to go, Barbara!


Well-written, helpful article!

Radiant Ruby Manawis
Sacramento, CA
0 #3 Kay 2011-03-09 18:57
Hello Barbara:

Great article on the Settlement Demand Letter. One thing I learned was to constantly repeat your client's name throughout instead of stating "my client". It makes the demand letter personal about the person, and not just a generic demand letter.

I enjoy reading the California Litigator... superb job! 8)
0 #2 Cindy Mascio 2011-03-09 07:42
You are amazing, Barbara. I hope your attorneys know how lucky they are to have you. This is an excellent article and could not have been written better. Kudos!! :-)
-1 #1 Chere Estrin 2011-03-07 22:44
Hi Barbara!
I love this article. Would it be ok if we reprinted it in both KNOW, The Magazine for Paralegals and the OLP UPDATE? Thanks.

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DISCLAIMER:  Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this website, or to any other website to which this website or articles may be linked.