Ask And *I Shall Receive: How To Use Plaintiffs’ Demand Letters To Your Advantage
Wednesday, September 14, 2022
by: Eddy Silverman, Williams Kastner

Section: Summer 2022

Eddy Silverman is licensed to practice law in Washington and Nevada, and focuses his work on tort defense for corporate clients, doctors and hospitals, and transportation companies. Eddy has a broad practice, with extensive courtroom experience. He employs a holistic approach, and specializes in fashioning creative solutions to effectuate positive case results.

In addition to litigation, Eddy has a wealth of mediation/alternative dispute resolution experience, as both a mediator himself and as an advocate for clients. He holds a master’s degree in Dispute Resolution from The Straus Institute for Dispute Resolution at Pepperdine Law, which is routinely ranked as the top such program in the United States by U.S. News and World Report.

Away from the office, some of the things Eddy enjoys are movies, music, and spending time with his family.
I. Introduction
Roughly a year ago, I found myself in a funny situation in a case of mine—
Opposing counsel’s discovery responses were overdue—as opposing counsel’s discovery responses often are—and so there I was, waiting above all for plaintiff’s response to “Interrogatory 28” and to my accompanying RCW 4.28.360 Request for Statement of Damages that was more-or-less identical in substance.  I was waiting for damages information, basically.  I wanted to know “the amount in controversy” so that I could remove my case, or not, and continue down one road or the other. 
I finally pinned plaintiff’s counsel down.  We met.  We conferred.  And he assured me, “Eddy, the amount in controversy is not in excess of $75,000!”  (Okay, so maybe he did not say it so enthusiastically as to warrant an exclamation point, but it makes for a better story – stay with me here).  But then he served me with a demand letter pretty much immediately after we had this conversation.  And here is where the situation got “funny.” 
Now, being served with a demand letter is not odd or particularly remarkable standing alone—what was funny, so to speak, was that the special damages listed in the demand letter were nearly $100,000.  I was confused.  How could the amount in controversy be less than $75,000 when special damages alone were near-$100,000 according to this demand letter? 
I went to the source.  I said, “Counsel, I’m confused...”  “You say the amount in controversy is less than $75,000 but you are claiming near $100,000 just in special damages in this letter...”  Counsel’s response was equal parts additional confusion and procedural incorrectness:

I did not know what counsel meant, about what his client “intended to plead,” because plaintiffs do not plead damages in civil lawsuits in this state.[1]  And as for the bit about “any” other discussions being “not admissible as it relates to damages,” I was not sure what that meant either.  Moreover, I’m a “plain language” guy, and I just did not see this provision in ER 408.  What I did see in the plain language of ER 408, as I politely explained to counsel, is that offers to compromise or settlement discussions are “not admissible as relates to liability”—a much narrower restriction than what counsel’s response suggested. 
I sought clarification from plaintiff’s counsel, telling him that “with $96,000 in claimed special damages my intent is still to remove the case….”  Then, not receiving any clarification or other-further response from plaintiff’s counsel, I did just that.  I removed the case, and I attached plaintiff’s demand-letter-email, the whole thing, to my Notice of Removal as an exhibit—indeed, as the very proof that the amount in controversy was in excess of $75,000, notwithstanding informal representations from plaintiff’s counsel to the contrary.[2]   

II. Bold Disclaimers And Threats Of Sanctions
In my case, plaintiff’s counsel did not put up a fight to my use of “ER 408” settlement discussions to effect removal.  There was no Motion to Remand, and no whining about the use of the demand letter or settlement discussions—not right away at least. 
No, it was not until I intentionally used another supposedly protected “offer of compromise” and related communications as exhibits—this time in a motion for summary judgment, with plaintiff’s case on the line—that her attorney made a stink.  It was here that I found myself the target of the predictable nuclear offensive.  Counsel accused me of “ignoring” ER 408 to introduce “inadmissible evidence”—and made sure to add in a footnote that I had also [improperly] “used settlement discussions to remove the matter.”  Counsel argued that “unequivocally” such evidence “is not admissible,” and insisted that my conduct in supposed violation of this sacred maxim “warranted sanctions.” 
Here’s the problem though, ER 408 is full of “equivocation.”      
Don’t take my word for it.  Just look at the rule yourself:
In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.  ER 408.
Lest you do not possess my keen eye and formidable legal reasoning prowess, I have gone ahead and underlined the pertinent parts of ER 408 above (the “equivocation,” if you will): not admissible to prove liability, but maybe admissible for “another purpose.”  In any event, certainly not “unequivocally” inadmissible simply on account of being part of, or related to, a settlement communication.    

III. The Point Of The Story
The fact of the matter is that like the attorney-client privilege, or work product, and all of these other scary things that people bold in the subject line of emails, or put between asterisks at the top of letters, ER 408 is not some forbidden temple.  One should not see that “ER 408” stamp and relegate that demand letter to a separate part of the file, never to be seen or heard from again.
In this short article, I have provided two specific examples of situations in which I have used what are, or were, arguably “protected” settlement communications under ER 408 for “other purposes.”  The reality though is that I use demand letters all the time, for all sorts of stuff.  Oftentimes in my cases, the demand letter is one of the first things I see.  I love a good pre-suit demand letter, laying out the plaintiff’s theory of the case, listing medical specials, making claims of broken bones that I know are fictitious…  I like to bring demand letters with me to depositions and ask plaintiffs about representations therein even where I know or suspect these plaintiffs have never seen the contents of the letters, if only just to unsettle them a bit when I ask them, “Are you aware that you told my client that you broke your foot?  But that is not true, right…?” 
In the final analysis, the point of this article is not to exhaust all the various ways and means you can employ with settlement communications and demand letters, it is merely to encourage my colleagues in the defense bar to consider the fact that there are ways and means available to you, perhaps more than you realize.  “ER 408” disclaimers and sanction threats are superficial, weak deterrent mechanisms that only have effect when and where attorneys abandon the precept that lies at the core of our legal training: dependence.  Is (a) this particular settlement communication admissible (b) for this specific purpose (c) in this unique case?  It depends
The point is that ER 408 communications are not “unequivocally inadmissible”—far from it.  Just like attorney-client privileged communications may not actually be privileged, and attorney work product might just be regular old (discoverable) “product.”  Do not stop at the threshold.  Consider the totality of the circumstances and make the argument in earnest, with conviction.  I would submit that if you do this, even if you are wrong, your conduct does not “warrant sanctions” (how else can the court ever decide whether ER 408 requires exclusion if one does not make the offer?).  Good luck!
[1] Ironically, this idea is part and parcel of the RCW 4.28.360 request for statement of damages I had served, that was overdue at time of the above exchange; the fact that the Complaint “shall not contain a statement of the damages sought” is right in the statute.  Ergo, no “pleading” of damages it would seem.
[2] I was able to use the demand letter as “other paper” within the meaning of 28 U.S.C. § 1446(b) because the letter was served during the course of the state court action, and not pre-suit.  See generally Carvalho v. Equifax, 629 F.3d 876 (9th Cir. 2010).  This is more of a fun, general article and therefore strict removal procedure is beyond the scope; however, if folks have specific questions about removal procedure, a favorite topic of mine, please feel free to email me at