DEMAND FOR SETTLEMENT - PROFESSIONAL MALPRACTICE

COMMONWEALTH OF VIRGINIA

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

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. VIRGINIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

Professional malpractice claims in Virginia are governed by common law negligence principles. Key precedents include Ortiz v. Barrett, 222 Va. 118 (1981) and Oleyar v. Kerr, 217 Va. 88 (1976).

B. Statute of Limitations

Professional Malpractice: Under Va. Code Ann. Section 8.01-246(2), actions for professional malpractice must be commenced within five (5) years from the date of the act or omission giving rise to the claim.

Discovery Rule: Virginia applies the discovery rule in some contexts. However, for breach of contract-based claims, the limitations period typically runs from the breach. Keller v. Denny, 232 Va. 512 (1987).

Legal Malpractice: The statute runs from the date of the negligent act or omission. Virginia may apply a "continuing representation" tolling in limited circumstances.

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

C. Contributory Negligence - CRITICAL

Virginia is one of only four U.S. jurisdictions that still follows the doctrine of pure contributory negligence. Under this doctrine, if the plaintiff is found to have contributed to their injury in any degree whatsoever, they are completely barred from recovery. Litchford v. Hancock, 232 Va. 496 (1987).

Our investigation has determined that our client was in no way negligent or contributorily at fault for the damages sustained. Our client fully cooperated with the professional and had no role in causing or contributing to the malpractice.

D. Standard of Care Under Virginia Law

Under Virginia law, a professional must exercise the degree of care, skill, and diligence ordinarily exercised by members of the profession in similar circumstances. Ortiz v. Barrett, 222 Va. 118 (1981).

Key Case Law:

• Attorneys: Must possess the knowledge, skill, and ability ordinarily possessed by attorneys and exercise reasonable care. Ortiz v. Barrett, 222 Va. 118 (1981).
• Accountants: Must perform services in accordance with GAAP and GAAS standards. Ward v. Ernst & Young, 246 Va. 317 (1993).
• Engineers/Architects: Must exercise the skill and care customarily used by practitioners in the profession. Oleyar v. Kerr, 217 Va. 88 (1976).

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.

Ortiz v. Barrett, 222 Va. 118 (1981).

Exception: Expert testimony is not required when the professional's negligence is within the common knowledge of laypersons.

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

Virginia does not impose statutory caps on damages in professional malpractice cases. Punitive damages are capped at $350,000 under Va. Code Ann. Section 8.01-38.1.

G. Privity and Third-Party Claims

Legal Malpractice: Generally requires an attorney-client relationship. Virginia may recognize claims by intended third-party beneficiaries in limited circumstances. Copenhaver v. Rogers, 238 Va. 361 (1989).

Accountant Malpractice: Third parties may recover under certain circumstances. Ward v. Ernst & Young, 246 Va. 317 (1993).

H. Breach of Fiduciary Duty

Virginia recognizes breach of fiduciary duty as a separate cause of action. Allen Realty Corp. v. Holbert, 227 Va. 441 (1984). Professionals who occupy positions of trust owe fiduciary duties to their clients.

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 Virginia law. Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 271 Va. 615 (2006).

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 Virginia law, [Defendant Professional] was required to exercise the degree of care, skill, and diligence ordinarily exercised by members of the [profession type] profession in 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. Ortiz v. Barrett, 222 Va. 118 (1981).

D. No Contributory Negligence

Our client was not contributorily negligent in any manner. The defendant alone is responsible for the damages sustained.

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 6% per annum per Va. Code Ann. Section 8.01-382
• 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 Virginia. Virginia's contributory negligence doctrine does not apply because our client had no role in causing or contributing to the malpractice.

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

ENCLOSURES: As noted above

cc: [Client Name]
File

VIRGINIA PROFESSIONAL MALPRACTICE PRACTICE NOTES

• Contributory Negligence: Virginia is one of only four jurisdictions following pure contributory negligence - ANY plaintiff fault bars recovery entirely.

• Five-Year Limitations Period: One of the longer limitations periods for professional malpractice.

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

• No Compensatory Damage Caps: No statutory limits on compensatory damages.

• Punitive Damages Cap: $350,000 cap under Va. Code Ann. Section 8.01-38.1.

• Prejudgment Interest: 6% per annum per Va. Code Ann. Section 8.01-382.

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

• Business Docket: Some courts have specialized business dockets for complex commercial cases.

• Last Clear Chance: Doctrine may apply to mitigate contributory negligence defense.

• Mediation: Courts may require mediation or other ADR.

This template is specific to Virginia law. Professional malpractice claims in Virginia are subject to the state's strict contributory negligence doctrine. Always verify current law and consult with qualified Virginia counsel.