General Advisory Vis-A-Vis Responding To Legal Notices/Communications
Having been a part of the growth story at Khurana & Khurana (K&K), we, in the last 13 years, have come across and successfully handled legal issues across numerous industries, academic institutions, and individuals. Such legal issues ranging from complex shareholding agreement conflicts to co-founder agreement disputes, to equity transfer mandates, to non-compliance of regulatory requirements, to non-agreement on term sheets, employee level issues, theft/infringement of IP, breach of contracts/commitments, financial/technical fraud, to all other possible commercial disputes that are around. Unfortunately, such issues don’t only ambush the large entities but also engulf growing and mid-sized entities, making them spend undesired time and resources on aspects that distract them from their core functioning.
While discussing the domain of legal issues and bringing them to a logical closure, the segment that holds eminence is the manner in which the communication around the legal issue is constructed, whereby we can take into consideration the importance of aptly responding to a legal notice. The correct communication and approach to a legal issue can save the party years of investment in litigation and provide a steady solution to the issue of concern
Thus, based upon our years of experience, we hereby want to put forth some easy to understand tips and ways to be kept into consideration while responding to legal notices, the said tips being equally applicable to legal communications in general as well. While there are no stringent or written set of rules as to how one should respond in a scenario of facing a legal issue, there are certain generic acts which can be taken care of to attain a firm position with regard to the matter in concern.
1. TAKE YOUR TIME TO RESPOND
We all would agree and are very familiar with the fact that receipt of a legal notice does not witness a positive response from any person. Thus, the general observation is proof of the fact that a person can become panicky upon receipt of legal communication, and panic or haste is never a suitable state to come up with a reasonable response to such a situation.
Therefore, one of our key recommendations is to not react/respond in haste or without pondering upon the issue. Never reply to a legal notice at least within 24 hours of its receipt. We, very often see the client’s being in a hurry to respond and they end up writing back impulsively based on their thought process at that time using language that almost certainly would backfire. It is absolutely necessary therefore to take as much time to think about the allegations made in the legal notice, review the agreements/contracts that form part of the legal notice, identify as many loopholes in the agreement/non-compliances by the issuing party/conduct of the issuing party, dig into past communications to find a flaw in the allegations, introspect on the relationship and flaws of the issuing party, and then carefully revert back to the notice.
2.HIRING/REVIEW BY ATTORNEY:
Keeping in mind multiple factors including the monetary constraints of businesses/companies/entities, the best way out is to prepare a response to the legal notice and further contact an attorney to review the same for you; scrutinizing it from the legal perspective. Thus, even if you intend to revert back to the legal notice at your end, at least get a very quick review done by a strong Attorney to get a second opinion, which even if costs you a little bit, would surely be worth it in the long run and shall save you a lot of time and resources. Even if the content of the reply essentially remains the same, the tone of the reply, choice of words/expressions, and the admissions made can significantly be altered by an expert attorney to be assured of a comprehensive and strong response.
Also, if you are unsure of your legal standing on the issue, it is advisable to always consult an attorney to strategize a fit legal response
3. AMICABLE SETTLEMENT
While responding to a legal notice or writing legal communication, please always keep your ego aside. There is absolutely no point in getting into a battle that is going to distract you from your core focus areas and business operations. If the notice can be attended to and the associated matter can be put to rest by a simple communication/acknowledgment and said communication does not hamper your business in the long run, it is perhaps best to undertake the same and close the matter in an amicable manner. Having recently witnessed proceedings of a divorce matter in the Delhi High Court where it took 2 years to arrive at a settlement in terms of property, shareholding pattern in family companies, alimony, custody among other aspects, the whole thing fell apart solely for the reason that the husband felt offended (and as a result did not agree to the settlement terms) that the wife did not agree to withdraw an FIR filed by her against the husband around 1.5 years back. All this took the matter back 2 years, humungous fees at both ends, and what a waste of the court’s time. If this is not ego play, what is! Please stay away from the same, and reply to legal communications with a prudent mindset and thinking about what is in the best interest of the business operations. However any approach to be taken only in consultation with the Attorney expert in the field.
4. IDENTIFYING LOOPHOLES:
While drafting a response to a legal notice, kindly make sure that you give the notice and all the corresponding documents with regard to the issue a thorough word-by-word reading which will give you an edge of identifying loopholes in the documents and you can use them to your strength in the rejoinder to the notice. Identify as many loopholes in the agreement/contract/communications that form part of (or are relevant to) the legal notice, and mention them in the reply.
The caveat is a Latin term holding the general dictionary meaning “let a person beware”. Thus, whereby on the perusal of a legal notice, you can apprehend a legal suit in the near future, it would be judicious to file a caveat with the appropriate authority who in furtherance of the caveat shall inform you in case such a legal suit is filed against you and to safeguard you against an ex-party order. You can also while framing the response to the legal notice ask for the response to be treated as a caveat which shall lay an obligation upon the opposite party to inform you in case they lodge a legal suit.
6. SPECIFICATIONS OF THE RESPONSE
Depending upon the context/content of the notice/communication received, you need to strategize your response to be either broad or specific. The intent behind the same is to safeguard yourself against asserting any statement that may harm your position in the case at hand.
In a scenario where the legal notice is an alleged infringement claim, it is a prudent option to take a counter action before replying and then mentioning the same in the reply. The following example would provide a better explanation of the scenario; A received a legal notice from B claiming the product of “A” to be infringing certain civil rights of the B. Here, in case A is sure and has evidence to prove that the rights of B have been granted erroneously. Thus, it would be strategic of A to first file a cancellation petition against the rights of B followed by a comprehensive legal response to the notice which shall include the specification as to the challenging such rights that have been asserted in the notice. The underlying idea is to take the most prudent step at the earliest and to revert in a robust manner. However, such a step should not be applied blindly to each and every case; but need to be taken under due consultation of an expert lawyer.
8. EVIDENTIARY VALUE
The one thing that you should always keep in mind is that whatsoever you communicate with the opposing party is building legal evidentiary value. Therefore, it becomes very important to be particular about each element you put in the response as the same may be construed as evidence in the litigation. In furtherance of the same, it becomes advisable to be cautious of your admissions/statements with regard to the claims made in the notice. The general recommendation and practice are to refute/deny all the allegations at the outset, for example: “I/We hereby deny all the allegations and claims made in the Notice, unless specifically admitted herein. Nothing in the said Notice shall be deemed to be an admission for want of any specific denial herein.” Thus, you need to be choosy with your words and strategy to the response to safeguarding yourself against any self-incriminating admissions.
The above-mentioned recommendations are only exemplary in nature and there are many other best/good practices while dealing with legal communications/notices, and this article is an attempt to put out some of the key factors to be kept in context while constructing your response around a legal communication which we hope to be of aid to you.
Author: Tarun Khurana (Partner and Patent Attorney), Abhishek Pandurangi (Partner and Patent Attorney), and Vidushi Trehan, Trademark Associate at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at email@example.com.