What Are Legal Threats?
The phrase "legal threat" refers to a threat of legal action. It can be made directly or indirectly, and it can take several forms. For example, an attorney might send a letter to the opposing side in which they inform the person that they are considering potential legal action. Alternatively, an individual might handwrite an intimidating letter or give a formal speech to their target in which they explicitly make the threat. In practice, it is far more common for these threats to be subtle rather than aggressive. The person who threatens another individual or group with legal action is typically trying to convince the recipient of the letter or announcement to take action (in most cases, to avoid litigation).
Though it is not fair to say that legal threats cannot be illegal, the rare instances in which they are illegal almost always involve additional factors . For instance, if the person who makes the threat does not actually intend to file legal action, then that actions might constitute fraud. Rather, the vast majority of legal threats are entirely lawful actions taken by the party later pursued in litigation. These legal threats are necessary functions of the legal process.
To illustrate, consider a simple contract dispute in which one person is alleging the other has breached their legal obligations under the terms of the agreement. During the pre-litigation phase, the wronged party will send a legal threat to the other party. The legal threat serves as a way to inform the other party that legal action will be taken if they do not comply with the terms of the contract. It is also a way to show the court that the wronged party did initially give the other party a chance to resolve the conflict without resorting to a lawsuit.
What Legal Threats Are Illegal?
Legal threats and illegal threats are distinguished by factors discussed in a recent article by Jerry Cedroni for JD Supra and posted on Mondaq. The factors that can make different threats legal or illegal include the intent of the threatening party, the context in which the threat was made, including who the threat was communicated to as well as how the communication occurred and the content of the threat, and the nature of the threatened action.
As Mr. Cedroni explains "Legitimate legal threats are generally permitted to be made by parties to a legal dispute, particularly when they address that dispute and might be expected as a matter of course to be raised in some context."
But illegitimate threats "involve threats that a party has no intention of pursuing. Absent some evidence of the speaker’s intent to actually carry out its threats, such threats often may be construed by the courts as illegal, particularly in the context of commercial disputes."
The JD Supra article cites the case of Chrysler Capital Realty Services, Inc. v. Choitz, 2003 W.L. 21638230 (Conn. Super. Ct. 2003) as an example of this. In Chrysler, the court found an email sent to the plaintiffs by the defendants from the defendants’ counsel that stated "at this time my clients will defend this matter and let you go through the costs of litigating" line "10-8-0% of the gross lease" with the plaintiff to be an illegal and extortionary threat.
On the other hand, as Mr. Cedroni points out in the JD Supra article, a court in California held there was no illegal threat when one of the defendant’s in a dispute sent an "undated e-mail" with "[his] position as to this case and the extent of any credit that Axsys ought to be entitled to in relation to the amounts it seeks to collect, etc." and followed it with language stating that "if the amount were not fully paid by March 27, [the company’s] case would be pursued in accordance with the terms of the settlement agreement" it had with plaintiffs.
And in another case cited by Mr. Cedroni, the Connecticut Superior Court noted that "it is sound and well established law that a party to a contract has an absolute right to proceed at law for its enforcement and to threaten the same, if warranted, without being liable for the consequences." Id. at 6-7; see also St. Paul Travelers Ins., supra at 475 (Defendant has an "absolute right to proceed at law for [its] enforcement and to threaten the same, if warranted, without being liable for the consequences.") (citations omitted).
Emphasizing the latter point, Mr. Cedroni notes that while a legitimately made legal threat is generally allowed, there are "certain communications that despite a legitimate legal threat may be actionable, including communications that are unprivileged and malicious."
When Is a Legal Threat Considered Harassment?
Not all legal threats are made equal, and when they begin to pile up on a single individual, context matters. The threat of legal action may amount to harassment if the person issuing the threat has a history of harassing the target. In this way, for instance, simply recycling the same template letter to multiple recipients can amount to harassment, even if the legal threats themselves are not abusive. Harassment suits can be complex, but one thing is important to remember: in a civil harassment case, the standard is unbearable pressure. While every situation is different, if you feel as though a certain pattern of legal threat is causing you undue stress, then it may be worthwhile to consult an attorney about the situation.
Harassment can also occur across the family law landscape. For example, consider a scenario where two parents are getting divorced. Suppose that one parent (Ms. Smith) has temporary custody of the child, but the other parent (Mr. Jones) pays child support. Each month, Mr. Jones sends a letter to Ms. Smith stating that he will sue for custody. He doesn’t change the language in the letter very much – sometimes the words are rearranged, but it essentially comes to the same thing, over and over again. When the letters come in, Ms. Smith becomes unhappy and frightened, so she and her lawyer decide to subpoena Mr. Jones for a deposition.
In a case like this, there are several related problems. For one thing, Mr. Jones may be annoying his ex-spouse by refusing to be specific in his requests. Subpoenas for depositions cost money, and once lawyers get involved, tensions run high. Repeating this pattern over and over again can drive costs up exceedingly fast. Additionally, by making the same threat repeatedly without taking the next step, Mr. Jones is now guilty of harassment. He is not seeking to negotiate with his former spouse in good faith; if he were, his complaints against her would be more tailored to her behavior, not simply graduated replicas of the same complaint, in somewhat different words.
In short, harassment is usually determined on a subjective basis. How it affects a victim does not depend on whether an outsider would find it unreasonably annoying; that someone would be offended does not matter. What matters is that the victim is offended, and that the offender refuses to modify his or her actions in an attempt to accommodate the victim’s understandable feelings of distress.
So What Happens if You Make Illegal Legal Threats?
For various reasons, some people may still use the threat of getting the law involved as a way to have their demands met. To some extent, this tactic can still be effective even if it’s no longer morally sound. However, if someone feels threatened by what you say or do, and further finds out that the action was illegal, you might have even more on your hands than you bargained for.
The majority of states have chosen to actually make a threatening action illegal. A person who feels threatened and that the threat can’t happen because of the Court can sue for damages and even collect money from the person using the threat of legal action as their weapon.
Most likely, criminal charges will come up against the one making the threat. The severity of the actions determines how strong the criminal charges will be. An example of a criminal charge for this type of action would be making death threats, which could be a third or fourth-degree felony, depending on the severity of the threat and the intended recipient. The types of penalties for this crime could be a large fine to jail time for up to five years.
Threats don’t just have to do with physical action. It also involves mental threats, like harassing someone, stalking, or threatening to hurt a loved one of the victim. Speaking of threats of violence, some states consider these crimes to be felonies as well. The sentence is usually one year in jail and/or a large monetary fine. States define these threats pretty broadly, so anything that a sensible person could interpret as a threat might qualify.
Threats can also result in a lawsuit from the person who felt threatened. Penalties may include compensation for any harm that could be associated with the threat. These damages may be quantifiable, like getting the money back for the actual loss and anything associated with it. These damages could also be not easily quantifiable, like counts of emotional trauma and distress. Generally, a person suing over threats of action is not looking for money. They want people arrested or their attacker sued. Although criminal courts can’t punish the person making the threat monetarily, the person making the threat can be prosecuted in criminal court. The action can also be seen as a crime and can be turned over to the authorities to investigate and handle appropriately.
Even if there aren’t severe penalties for making a threat, verbally harassing someone, stalking someone, and otherwise threatening actions against a person is still unnecessary if and when there are other ways around it. Making threats is unnecessary and immature. Speaking with a lawyer is probably a better option that may result in an agreement beneficial to both parties.
What Should You Do About a Legal Threat?
We consider the following guidelines for responding to a legal threat:
(a) Consider seeking legal advice from your trusted counsel. Always consider the upside and downside of following the demands of the legal threat. Then weigh those against the upside and downside of not following through with the allegations or threats. Is it worth the potential for embarrassment or an embarrassing public disclosure in order to save face?
(b) Document every facet of your dealings with the threat-maker. It goes without saying that this should be done from the beginning, when you first receive a demand or threat. Use e-mail or some other electronic media to create contemporaneous documentation . Make it clear that unless this action is taken promptly, you regard it as a serious potential claim that might have to be litigated with all deliberate speed.
(c) Evaluate the merits of the legal threat. If the person is acting in good faith, are his or her demands reasonable? If they are not, does your own self-interest make it unreasonable to consider them? If you are sufficiently motivated, you may consider following up on the legal threat.
(d) Just because you received a demand or threat from a legitimate legal source such as an attorney does not mean that you are legally obligated to comply with all of the demands of that person.
Protecting Yourself Through Legal Means
The best strategy for protecting yourself legally from these kinds of threats is to go on the offensive yourself, and seek legal counsel — or at the very least, document the threats and save for later.
If you are issued a threat of legal action, regardless of whether that action is overtly frivolous or the other party may have a valid legal complaint against you, the best strategy is to hire an attorney familiar with federal and state laws regarding defamation and other types of harassing complaints. You may also be able to simultaneously request a protective order to keep your adversary from taking additional legal action against you, depending on the nature of the threat. Many states have sundry provisions for protective orders independent of protection from domestic violence; in other words, a victim of a frivolous lawsuit can often seek protection from his or her enemy. It is also worth noting that many times a legal threat can be combatted through de-escalation. If you believe there is no merit to your adversary’s claims, you may want to take the high road and simply avoid further contact with the other party. For many people, this will be enough to stop the other party from making further legal threats, as they have learned that such actions are without merit and even more importantly, they’ve been ignored. If you do not communicate directly with the other party, he or she cannot accuse you of escalating the situation, and cannot expect you to react in anger so the matter can evolve into a fight, or a lawsuit.
Seeking Legal Guidance
If you are targeting for the defence or you are threatened with legal action by another, seeking advice from a lawyer is always advisable. The lawyer will be in a position to advise you whether you indeed have a defence , asses the threat and look into available courses of action, and if so advise you on the best course of action to ensure these threats do not materialise into legal action.
