Lawyers do lots of different things. Draft wills. Negotiate contracts. File lawsuits. And any lawyer worth her salt knows how to write a good "Cease and Desist" letter. Part legal brief, part muscle, the Cease and Desist letter lives in the gray area between negotiation and litigation. It tries to discourage objectionable conduct without resorting to actual legal proceedings.
In some contexts, a Cease and Desist letter has specific legal significance. Many defamation statutes, for example, require the defamed party to ask for a retraction before initiating legal action. And a Cease and Desist Order (issued by a court or governmental entity) carries serious and specific consequences if ignored. Most Cease and Desist letters, however, carry no legal weight. The recipient may choose to comply with, or may choose to ignore, the demand to stop. The letter isn't a legal instrument; it's a strategic instrument. Most often, the sender is making a threat in hopes of inducing compliance without need of further action. Sometimes the threat is a bluff. Sometimes it is quite real. In certain instances, the sender has no real expectation that the recipient will comply but still sees a strategic advantage in demonstrating patience before resorting to litigation. At the end of the day, a Cease and Desist letter cannot be easily categorized or defined.
If the letter lacks precise meaning or purpose, can the recipient simply ignore it? Maybe. The answer depends, ultimately, on the intentions of the original sender. The best way to gauge those intentions is to understand the strength of the sender's and the recipient's respective legal positions. If the sender's complaint has no support in the law, he is less likely to take the serious and expensive step of filing a lawsuit. Likewise, if the recipient's conduct amounts to skating on thin ice, causing real harm to the sender in the process, the recipient should take the threat presented in a Cease and Desist letter quite seriously.
If nothing else, Cease and Desist letters allow lawyers to show their bravado and engage in good old-fashioned saber rattling. Even in a society as litigious as ours, no one really wants to get a letter from someone else's attorney. It's stressful, at the very least. And that, at the end of the day, is what the Cease and Desist letter (and its sender) is counting on.
Need help with a Cease and Desist letter? Contact our office at (248) 477-6300.