DEMAND FOR SETTLEMENT - PROFESSIONAL MALPRACTICE

STATE OF MONTANA

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

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. MONTANA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

Professional malpractice claims in Montana are governed by common law negligence principles and Mont. Code Ann. Section 27-2-206. Key precedents include Mang v. Eliasson, 153 Mont. 431 (1969) and Jackson v. Rogers & Wells, 258 Mont. 456 (1993).

B. Statute of Limitations

Professional Malpractice: Under Mont. Code Ann. Section 27-2-206, actions for professional malpractice must be commenced within three (3) years from the date the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission.

Discovery Rule: Montana applies the discovery rule, meaning the limitations period does not begin until the plaintiff discovers or should have discovered the injury. Christian v. Atlantic Richfield Co., 358 Mont. 495 (2010).

Legal Malpractice: The limitations period runs from the date the client discovers or reasonably should have discovered the alleged malpractice. Jackson v. Rogers & Wells, 258 Mont. 456 (1993).

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

Montana follows a modified comparative negligence system under Mont. Code Ann. Section 27-1-702. A plaintiff may recover damages only if their negligence is not greater than the combined negligence of all defendants. If the plaintiff is 50% or more at fault, recovery is barred. If less than 50%, damages are reduced proportionally.

D. Standard of Care Under Montana Law

Under Montana law, a professional must possess and exercise the knowledge and skill ordinarily possessed by members of the profession in good standing. Mang v. Eliasson, 153 Mont. 431 (1969).

Key Case Law:

• Attorneys: Must exercise the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer. Mang v. Eliasson, 153 Mont. 431 (1969).
• Accountants: Must perform services in accordance with applicable professional standards. First Security Bank of Bozeman v. Goddard, 181 Mont. 407 (1979).
• Engineers/Architects: Must exercise the skill and care ordinarily employed by members of the profession. Massman Constr. Co. v. Montana, 153 Mont. 27 (1969).

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.

Jackson v. Rogers & Wells, 258 Mont. 456 (1993).

Exception: Expert testimony is not required when the alleged negligence is so grossly apparent that a layperson could determine it.

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

Montana does not impose statutory caps on damages in professional malpractice cases.

G. Privity and Third-Party Claims

Legal Malpractice: Generally requires an attorney-client relationship, though Montana may recognize claims by intended third-party beneficiaries in limited circumstances.

Accountant Malpractice: Third parties may recover where the accountant knew the work would be relied upon by identifiable third parties.

H. Breach of Fiduciary Duty

Montana recognizes breach of fiduciary duty as a separate cause of action. McKenzie v. Keller, 282 Mont. 526 (1997). Professionals who occupy positions of trust owe fiduciary duties.

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 Montana law. Seltzer v. Morton, 154 Mont. 464 (1970).

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 Montana law, [Defendant Professional] was required to possess and exercise the knowledge and skill ordinarily possessed by members of the [profession type] profession in good standing.

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. Jackson v. Rogers & Wells, 258 Mont. 456 (1993).

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 per Mont. Code Ann. Section 27-1-211
• 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. Mountain 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 Montana.

We are prepared to litigate this matter in the District Court of [County] County, Montana 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]
Montana State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MONTANA PROFESSIONAL MALPRACTICE PRACTICE NOTES

• Three-Year Limitations Period: Actions must be brought within 3 years from discovery of the act, error, or omission.

• Discovery Rule: Limitations period runs from when plaintiff discovered or should have discovered the malpractice.

• Modified Comparative Fault: Recovery barred if plaintiff is 50% or more at fault.

• Expert Testimony Required: Expert witness is generally necessary except for grossly apparent negligence.

• No Damage Caps: No statutory limits on professional malpractice damages.

• Montana Constitution: Article II, Section 16 provides strong protections for access to courts.

• Prejudgment Interest: 10% per annum per Mont. Code Ann. Section 27-1-211.

• Venue: District Court in county where defendant resides or where cause of action arose.

• Punitive Damages: Available for actual fraud or actual malice per Mont. Code Ann. Section 27-1-221.

• ADR: Montana courts may require mediation or other alternative dispute resolution.

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