DEMAND FOR SETTLEMENT - PROFESSIONAL MALPRACTICE

COMMONWEALTH OF MASSACHUSETTS

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Massachusetts ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the Commonwealth of Massachusetts

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Professional / Firm Name]
[Professional Liability Insurance Carrier]
[Street Address]
[City, State ZIP]

RE: PROFESSIONAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date(s) of Negligent Service: [Date or Date Range]
Professional(s): [Professional Name(s) and License Type]
Matter/Project: [Description]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with the professional malpractice committed by [Professional/Firm Name] in [his/her/their] provision of [type of professional services] services. This letter constitutes formal notice of our client's claim and our demand for settlement.

I. MASSACHUSETTS-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

Professional malpractice claims in Massachusetts are governed by common law principles of negligence and breach of contract. The essential elements are established by case law including Poly v. Moylan, 423 Mass. 141 (1996) and Fishman v. Brooks, 396 Mass. 643 (1986).

B. Statute of Limitations

General Professional Malpractice: Under M.G.L. c. 260, Section 4, actions for professional malpractice must be commenced within three (3) years from the date of the act or omission giving rise to the claim.

Discovery Rule: Massachusetts applies the discovery rule, which provides that the limitations period does not begin to run until the plaintiff knew, or reasonably should have known, that he or she had been harmed by the defendant's conduct. Bowen v. Eli Lilly & Co., 408 Mass. 204 (1990).

Continuous Representation Doctrine: The statute may be tolled during the period of continuous representation by the professional on the same matter. Murphy v. Smith, 411 Mass. 133 (1991).

Accountant Malpractice: For claims against accountants, M.G.L. c. 260, Section 5A provides a 6-year statute of repose from the date of the act or omission.

Relevant Dates in This Matter:
- Date(s) of negligent services: [Date(s)]
- Date of discovery: [Date]
- Three-year limitations period expires: [Date]

C. Comparative Negligence

Massachusetts follows a modified comparative negligence system under M.G.L. c. 231, Section 85. A plaintiff may recover damages only if their negligence is not greater than the defendant's negligence. If the plaintiff is 51% or more at fault, recovery is barred entirely. If less than 51% at fault, damages are reduced proportionally.

D. Standard of Care Under Massachusetts Law

Under Massachusetts law, a professional must exercise the degree of care, skill, and diligence that a reasonably competent professional in the same field would exercise under similar circumstances. Fishman v. Brooks, 396 Mass. 643 (1986).

Key Case Law:

• Attorneys: Must act "with reasonable care and skill" and as a "reasonably prudent attorney." Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107 (1987).
• Accountants: Must comply with Generally Accepted Accounting Principles (GAAP) and Generally Accepted Auditing Standards (GAAS). Sphere Drake Ins. Ltd. v. All American Life Ins. Co., 307 F.3d 617 (7th Cir. 2002).
• Engineers/Architects: Must exercise reasonable professional judgment consistent with applicable codes and standards. Gossman v. Rosenberg, 237 Mass. 122 (1921).

E. Expert Witness Requirements

Expert testimony is generally required in professional malpractice cases to establish:
1. The applicable standard of care;
2. That the defendant breached that standard; and
3. That the breach proximately caused the plaintiff's damages.

Palandjian v. Foster, 446 Mass. 100 (2006).

An exception exists for cases where the negligence is so obvious that a layperson can understand it without expert assistance (the "common knowledge" exception).

Certification: We have retained a qualified expert who has reviewed the relevant documents and has concluded that the applicable standard of care was breached and that such breach proximately caused our client's damages.

F. Damage Caps

Massachusetts does not impose statutory caps on damages in professional malpractice cases, with the exception of medical malpractice claims against charitable organizations under M.G.L. c. 231, Section 85K.

G. Privity and Third-Party Claims

Massachusetts recognizes limited exceptions to the privity requirement in professional malpractice cases:

Attorneys: May owe duties to intended third-party beneficiaries of estate planning documents. Spinner v. Nutt, 417 Mass. 549 (1994).

Accountants: May be liable to third parties who the accountant knew or should have known would rely on their work. Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491 (1998).

H. Breach of Fiduciary Duty

Many professionals owe fiduciary duties to their clients. Breach of fiduciary duty is a separate cause of action in Massachusetts. Meehan v. Shaughnessy, 404 Mass. 419 (1989).

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to services provided to [Client Name], including but not limited to:

• Complete client file (paper and electronic)
• All correspondence and communications
• Work product, drafts, and notes
• Billing records and time entries
• Engagement letters and contracts
• Emails and electronic communications
• Calendar entries and scheduling records
• Internal memoranda and analysis
• Research materials
• Any recorded statements
• Professional liability insurance policies
• Quality control and review documentation

Modification, destruction, or concealment of any records will result in claims for spoliation, sanctions, and adverse inference instructions under Massachusetts law. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544 (2002).

III. FACTUAL BACKGROUND

A. Engagement and Relationship

[Client Name] engaged [Professional/Firm Name] on or about [Date] to provide [type of professional services]:

Nature of Engagement:
- [Description of services to be provided]
- [Scope of representation/engagement]
- [Key objectives]

Fee Arrangement:
- [Description of fee arrangement]
- [Total fees paid: $Amount]

B. Chronology of Negligent Services

[Date]: [Describe what occurred]

[Date]: [Describe what occurred]

[Date]: [Describe what occurred]

C. The Professional Error(s)

[Describe specifically what the professional(s) did wrong]

D. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].

IV. STANDARD OF CARE VIOLATIONS

A. Applicable Standard of Care

Under Massachusetts law, [Defendant Professional] was required to exercise the degree of care, skill, and diligence that a reasonably competent [profession type] would exercise under similar circumstances.

Based on our expert's analysis, the applicable standard of care required [Defendant] to:

1. [Standard 1]
2. [Standard 2]
3. [Standard 3]

B. Breaches of the Standard of Care

Breach 1: [Detailed description of breach]

Breach 2: [Detailed description of breach]

Breach 3: [Detailed description of breach]

C. Expert Opinion

We have retained [Expert Name], a [licensed/certified] [profession] with [number] years of experience in [relevant area]. [Expert Name] has concluded that:

1. [Defendant Professional] breached the applicable standard of care;
2. These breaches were a direct and proximate cause of [Client Name]'s damages; and
3. Had appropriate professional services been rendered, [describe avoided outcome].

V. CAUSATION

A. "But For" Causation

But for the defendant's breach of the standard of care, our client would not have suffered the damages described herein. This claim satisfies the "but for" test for actual causation.

B. Proximate Causation

The defendant's professional negligence was a proximate cause of our client's damages. The harm suffered was a foreseeable consequence of the defendant's breach of duty.

C. Case-Within-A-Case (If Applicable to Legal Malpractice)

[If legal malpractice:] We are prepared to prove that but for counsel's negligence, the underlying matter would have resulted in a more favorable outcome for our client. Jernigan v. Giard, 398 Mass. 721 (1986).

VI. DAMAGES

A. Direct Financial Losses

As a direct and proximate result of the defendant's professional negligence, our client has suffered:

Primary Damages:
- [Loss 1]: $[Amount]
- [Loss 2]: $[Amount]
- [Loss 3]: $[Amount]

B. Consequential Damages

C. Professional Fees Paid

D. Interest and Incidental Costs

• Prejudgment interest at 12% per annum (M.G.L. c. 231, Section 6C)
• Court costs and filing fees
• Expert witness fees

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear breach of professional standards, the extent of our client's damages, and the strength of liability evidence, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring at 5:00 p.m. Eastern Time on [Expiration Date].

VIII. RESPONSE AND ADDITIONAL INFORMATION REQUESTED

Please provide:

1. All professional liability insurance policies applicable to this claim
2. Policy limits for each applicable policy
3. Any self-insured retention amounts
4. Excess/umbrella coverage information
5. Consent to extend statute of limitations during settlement discussions

IX. DOCUMENTATION ENCLOSED

• Engagement agreement/retainer
• Correspondence between client and professional
• Work product demonstrating errors
• Documentation of damages
• Expert curriculum vitae
• Chronology of events

X. CONCLUSION

This case presents clear professional negligence that caused significant financial harm to our client. The defendant's conduct fell below the standard of care required of [profession type] in Massachusetts.

We are prepared to litigate this matter in the [Superior Court/District Court] of [County] County, Massachusetts if necessary. However, we believe early resolution serves all parties' interests.

Please respond by the deadline stated above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Massachusetts Board of Bar Overseers No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MASSACHUSETTS PROFESSIONAL MALPRACTICE PRACTICE NOTES

• Three-Year Limitations Period: Most professional malpractice claims must be filed within 3 years.

• Discovery Rule: Statute of limitations begins when client knew or should have known of the harm.

• Continuous Representation: May toll limitations during ongoing professional relationship on the same matter.

• Modified Comparative Fault: Recovery barred if plaintiff is 51% or more at fault.

• Expert Testimony Required: Expert witness is necessary except in cases of obvious negligence.

• No Damage Caps: No statutory limits on professional malpractice damages (except charitable organizations).

• Fiduciary Duties: Many professionals owe fiduciary duties - separate cause of action available.

• Prejudgment Interest: 12% per annum from date of breach or demand under M.G.L. c. 231, Section 6C.

• Venue: Superior Court for claims over $50,000; consider specialized Business Litigation Session.

• Consumer Protection Act: M.G.L. c. 93A may provide additional remedies for certain professional misconduct.

This template is specific to Massachusetts law. Professional malpractice claims require careful attention to limitations periods and expert requirements. Always verify current law and consult with qualified Massachusetts counsel.