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Writing the right letter

Lawyers are, among other things, professional letter writers. We often use rhetoric as a tool to get what we want on behalf of clients. A lawyer we will call Jane used some of those rhetorical skills in a letter to her boss and got herself fired. Putting your thoughts down on paper for the boss does add impact and punch. For that reason you should always think twice about the words you choose.
 
Jane’s income was based entirely on what she billed and collected. After working under these conditions for about six months she became very concerned because the time she was spending on files was not getting recorded and billed.
 
There were a number of other administrative problems with her boss’s law practice that Jane felt were keeping her from succeeding. Although they had some discussions and progress, Jane was actually going into debt to her employer. Her advance against her earnings exceeded what she had actually earned. Jane wrote a four-page letter to her boss which included these words, “Many of the dockets that were entered by hand were credited to your dockets instead of my dockets. There has been no attempt on your part to reconcile these problems despite my repeated and numerous requests. As my income depends solely on my billable hours docketed and collected, the monetary gain to you is both dishonest and negligent.”
 
Eleven days later Jane was terminated. The boss had every right to terminate Jane if she wanted to but the boss took the position that Jane’s letter was so insubordinate and insolent that it constituted just cause for the termination of the employment. The relationship of trust and confidence that was necessary had been undermined so greatly by Jane’s intemperate letter that continuation of the relationship was untenable. The boss refused to give Jane any kind of a severance package.
 
Jane sued and when the matter originally went to trial, Jane lost. The trial judge found that by using that kind of language, Jane had destroyed the possibility of working together with her boss in a small law office and that no monies were owing. The trial judge said that if he had not found just cause he would have awarded Jane four months pay in lieu of notice after only six months of employment.
 
When Jane appealed the decision, the Court of Appeal had no chance to comment on whether four months pay in lieu of notice was excessive after only six months of work because no one appealed that issue.
 
The Court of Appeal said that the trial judge should have taken an approach that looked at the entire context of the relationship and the entirety of the letter. It noted that although Jane’s language was intemperate in one part of the letter quoted above, Jane’s letter concluded with the words, “I would like to work together with you to resolve these issues. Kindly contact me so that we may work together to make this arrangement a successful one for both of us.” So, although Jane had moments of excess, she concluded on a constructive note. The Court of Appeal considered the fact that since it took eleven days after the letter to terminate Jane, it probably did not destroy the necessary relationship of trust between employer and employee.
 
Jane’s letter was between her and her boss. No one else ever saw it. If Jane had posted it on the bulletin board in the lunch room or circulated it to any other employees, the Court of Appeal would likely have agreed with the trial judge.
 
In these circumstances, however, where Jane was trying to communicate clearly, and mostly constructively, about issues that were extremely important and stressful to her, the Court of Appeal decided that the trial judge had made a significant error and overturned the decision.
 
If you are someone who writes letters to vent your frustrations, that’s not a bad thing. Before you send it, however, get someone you trust to read it. Those flights of rhetoric feel good when you’re writing them but on sober second thought you might want to tone it down. This advice applies equally to employees and employers.
 
Nobody likes being called dishonest and negligent including lawyers. They tend to see red.  Putting accusations like that in writing is seldom useful or constructive. So, Jane finally won her appeal, over seven years after she was fired, but it’s hard to see who was really the winner. Jane won her case but now her name on the internet is indelibly tied to a case that spends pages talking about the bad judgment she used in the wording of that letter. It hardly seems like a win.
 
As published in the Hamilton Spectator, June 13, 2011
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com