Demand letters & pre-suit negotiation · Dallas, Texas
Demand Letters and Pre-Suit Negotiation for Texas Businesses
Many business disputes start and end with a letter. The right one states the claim, the amount and the deadline so that paying is easier than fighting. The wrong one hands the other side its defense, or skips a notice the statute required.
- Shareholder, Hallett & Perrin, P.C.
- State and federal litigation experience
- Represents plaintiffs and defendants
When the matter starts with a letter
A letter is where most disputes begin, whichever side of it you are on.
- 01A customer has stopped payingThe invoices are past due and the calls go unanswered. A demand that presents the claim properly also starts the 30-day clock for recovering attorney's fees.
- 02A demand letter just arrivedIt gives you ten days, cites statutes and threatens suit. What it is really worth, and how to answer without making things worse, is the first question.
- 03A competitor is using your name or your peopleA cease and desist letter puts the other side on notice and often ends the conduct. Sent carelessly, it can start a lawsuit you did not want.
- 04The letter is partly rightYou owe something, but not what is demanded. The response has to protect your position on the rest without admitting the whole.
- 05The claim requires statutory notice firstDeceptive trade practices claims need a 60-day notice with specific contents. Construction lien rights depend on notices with their own deadlines. Missing either changes the case.
How Tina approaches a demand letter
Whether she is writing the letter or answering one, it is the first move in a longer exchange, and it is drafted that way.
Understand the whole dispute first
The contract, the invoices, the communications and the relationship. A letter that misstates a fact or a figure costs credibility that is hard to get back.
Check what the law requires
Presentment for attorney's fees, the DTPA notice, lien notices, contractual notice-and-cure clauses. The letter is drafted to satisfy every one that applies.
Set the demand and the deadline deliberately
An amount that can be defended at trial, a deadline that is realistic, and a tone that leaves room to settle. A letter is read by the other side's lawyer, and later by a judge.
Answer a letter on the record you want
A response confirms what should be confirmed, disputes what should be disputed and reserves everything else, with the documents preserved behind it.
Negotiate from the letter, not instead of it
The letter opens the exchange. The weeks after it are where payment plans, releases and agreed exits are worked out, with the lawsuit ready if they are not.
What Texas law says about demand letters
Texas does not require a demand letter before most business lawsuits. But several statutes attach consequences to sending one, or to not sending one, and contracts add their own notice requirements. In practice the letter is rarely optional.
Presentment and attorney's fees: CPRC § 38.002
Chapter 38 of the Texas Civil Practice and Remedies Code lets a party recover reasonable attorney's fees on a claim for an oral or written contract, rendered services, performed labor, furnished material or a sworn account, in addition to the amount owed. Section 38.002 sets the procedure: the claimant must be represented by an attorney, must present the claim to the opposing party or its authorized agent, and payment of the just amount owed must not have been tendered within 30 days after presentment. The demand letter is how presentment is usually proved. A letter that states the wrong amount, or goes to the wrong person, can cost the fee claim.
Since September 1, 2021, Section 38.001 allows recovery from an individual or an organization as defined in the Business Organizations Code, which brings in limited liability companies and partnerships, with exceptions for quasi-governmental, religious and charitable entities.
The 60-day notice under the DTPA
A consumer suing for damages under the Texas Deceptive Trade Practices Act must, under Business and Commerce Code Section 17.505(a), give written notice at least 60 days before filing, stating the specific complaint in reasonable detail and the amount of economic damages, mental anguish damages and expenses, including attorney's fees. If the notice is skipped, the defendant may file a verified plea in abatement within 30 days of answering, and the case is paused until notice is given. The exceptions are a limitations deadline that makes notice impracticable and a claim raised as a counterclaim.
Not every business can use the DTPA. Section 17.45(4) excludes a business consumer with assets of $25 million or more, and Section 17.49(f) and (g) exclude most written contracts over $100,000 negotiated with counsel and transactions over $500,000, other than those involving a residence. A demand that threatens DTPA damages in a seven-figure commercial deal is usually a sign the sender has not read the statute. The guide to business DTPA claims covers the rest.
Other notices that change the case
Construction payment claims depend on statutory notices under Chapter 53 of the Texas Property Code, with deadlines measured from the month the work was performed; a late demand letter does not revive a lien. Many commercial contracts require written notice and a cure period before termination or suit, and a demand that skips the clause can itself be the breach. Before any letter goes out, the question is what notices this dispute requires.
Why a litigator should write, or answer, the letter
A demand letter is cheap to send and expensive to send badly. The letter that overstates the claim invites a counterclaim. The one that recites every grievance signals that the writer has not decided what the case is about. The one that works states a number the sender can prove, the legal basis that actually applies and a next step the recipient can take.
Tina Wysk writes demand letters as a litigator: each one is drafted as if it will be the first exhibit at a hearing, because it often is. She also answers them, for companies accused of breaching a contract, soliciting customers or misusing information, and for individuals named personally. Having read these letters from both sides, she can usually say in the first meeting whether this one is a prelude to a lawsuit or an invitation to talk.
Questions
Questions about demand letters in Texas
Do I have to send a demand letter before suing in Texas?
Not for most business claims; a breach of contract suit can be filed without one. But a letter is required to recover attorney's fees under Chapter 38 of the Civil Practice and Remedies Code (presentment, with 30 days to pay), before a DTPA damages suit (60 days' notice under Section 17.505), and wherever the contract itself requires notice and a chance to cure.
Should I respond to a demand letter?
Usually yes, and usually through counsel. Silence rarely ends a matter and sometimes costs a defense, such as the right to abate a DTPA claim for lack of notice. A response can be short: acknowledge receipt, state the position, ask for documents, reserve all rights. What it should never do is concede facts or figures before they have been checked.
Is the deadline in a demand letter binding?
No. It is the sender's deadline, not the law's. The deadlines that matter are the statute of limitations, contractual notice periods and, once a suit is filed, the date the citation gives you to answer. Treat the letter's deadline as a signal of how quickly the other side intends to act.
Does a letter from a lawyer carry more weight than one from the owner?
Often, for a practical reason: the recipient knows a litigator has already looked at the claim and is positioned to file. A lawyer's letter also satisfies the attorney representation requirement in Section 38.002 for recovering fees. An owner's letter can work for a routine collection; once facts or legal theories are contested, it should come from counsel.
What happens if I ignore a demand letter?
In a contract case, the sender may file suit and, if the letter presented the claim properly, may now recover attorney's fees on top of the debt. In a DTPA matter, ignoring the notice forfeits nothing but gives the plaintiff a clear path to court after 60 days. Ignoring a cease and desist letter about a trademark or trade secret can be used later as evidence that the conduct was knowing. The right answer depends on the claim.
Guides on demand letters
What to put in a letter, how to answer one and when the statute requires one first.
Demand Letters & Pre-Litigation
Can a Demand Letter Cross the Line Into Defamation or Extortion?
A demand letter that threatens a lawsuit over a real claim is lawful and privileged. It crosses the line when it threatens criminal charges or accuses you to third parties.
Demand Letters & Pre-Litigation
Cease and Desist Letters: When a Business Should Send One
Send one when you can name the conduct, the right it violates and what you will do if it continues. Hold off when it would tip off the other side or invite a pre-emptive suit.
Demand Letters & Pre-Litigation
Demand Letter for an Unpaid Invoice: What to Include
An invoice demand letter states the contract, the invoices and the exact amount owed, sets a payment deadline and says what follows. It also starts the clock on attorney's fees.
Demand Letters & Pre-Litigation
Do I Have to Send a Demand Letter Before Suing in Texas?
Usually no: Texas lets most business plaintiffs file without a demand. But some statutes and many contracts require notice first, and skipping it can forfeit attorney's fees.
Demand Letters & Pre-Litigation
Does a Letter From a Lawyer Carry More Weight Than My Own?
Usually yes: a lawyer's letter signals the cost has been accepted, frames the claim correctly and avoids admissions. But a first letter from the owner is often the better move.
Demand Letters & Pre-Litigation
How to Respond to a Demand Letter Without Making It Worse
A good response is short, factual and deliberate: it acknowledges, states your position, corrects errors, and commits to nothing you have not verified.
Sending a letter, or answering one?
Bring the letter and the documents behind it. The first conversation covers what the law requires, what the letter is worth and what to say back.