11 Feb A Predictive Office Memo is an internal document that is designed to answer a legal question. Memos are often drafted to determine what types of issues will arise in a client’
PREDICTIVE OFFICE MEMO ASSIGNMENT INSTRUCTIONS
A Predictive Office Memo is an internal document that is designed to answer a legal question.
Memos are often drafted to determine what types of issues will arise in a client’s case, what
law(s) might apply, and if the firm should take the client’s case.
For this assignment, you will be drafting a Predictive Office Memo that will remain internal and
will explain the law and likely outcome of the hypothetical fact pattern or question that was
provided to you for the Case Briefs Assignment. Thus, the memo that you will draft will
continue with the same question with which you have already been working and will objectively
assess the situation . Remember, the purpose of this memo is to be objective; it is not to try to
persuade the reader.
Follow the format that has been included in your textbook and in the prompt provided by your
professor. This includes the headings and sections. Make sure your memo is:
2 to 3 pages in length.
Does not include a cover page or running heads.
Times New Roman, 12-point font
All four cases are used to create four rule explanation paragraphs.
o Two cases in the first section of the discussion and the other two cases in the
second section of the discussion.
o Remember, only one case is discussed in a rule explanation paragraph.
Cite cases using the Bluebook in-text citation method
o Do not include any outside sources.
o Only the four assigned cases should be used and cited.See bellow:
Case Brief #1:
Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989)
Case Brief #2:
Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005)
Case Brief #3:
Sims v. Sims, 55 Va. App. 340 (2009).
Case Brief #4:
Chaplain v. Chaplain, 682 S.E. 2d 108 (Va. Ct. App. 2009).
Note: Your assignment will be checked for originality via the Turnitin plagiarism tool.
Do not use any ai tools or chat gpt, it must be 100% human written. I will check.
Please review all of the instructions, the predictive memo (see attached), and the rubric prior to redoing this assignment. Some items to pay particular attention to: the instructions say "I would like for you to draft a memo explaining the test that the Virginia courts apply to determine if an agreement is unconscionable – this is the same question that I provided to you in the case brief memo.(See attached) Your question presented is provided there (what is the test Virginia courts apply…). Also, the directions provide very specific instructions for how your discussion section should be formatted. I also suggest reviewing the rubric to see what sections are required for this assignment.
The Law Offices of Patrick, Wayne and Swayze
To: Legal Assistant
From: Susan K. Patrick, Esq.
RE: Predictive Office Memo
Your case briefs were well received. As such, I would like for you to draft a memo explaining the test that the Virginia courts apply to determine if an agreement is unconscionable – this is the same question that I provided to you in the case brief memo.
We do not have a client who is currently dealing with this issue; however, this has become a topic that we could be dealing with in the future. Typically, we would have a fact memo to give you. However, since we don’t have any facts to apply, don’t draft a Fact section or rule application paragraphs. Instead, focus on explaining the law and how the court applied the law in the rule explanation paragraphs.
Please review Chapter 12 of Legal Writing and Analysis for the format that is used; however, do not include a Fact Statement. The overall format should include: Heading, Question Presented, Brief Answer, Discussion, and Conclusion.
The Heading, Question Presented, Brief Answer, and Conclusion sections are very straight forward. The vast majority of this memo should be the Discussion section. This section should be broken into two different parts: (1) Gross disparity, and (2) Overreaching or Oppressive Influences. These are the two parts of the two-prong Virginia test.
Within each of the two sections, there should be a discussion of at least two of the cases (but no more than three) using rule explanation paragraphs. The format for the Discussion section should be:
Umbrella paragraph that provides the reader with a big picture understanding of the two-prong test.
1. Gross Disparity
Rule explanation paragraph for one of the four assigned cases focusing only on gross disparity from that case.
Rule explanation paragraph for one of the other four assigned cases focusing only on gross disparity from that case.
2. Overreaching or Oppressive Influences
Rule explanation paragraph for one of the four assigned cases focusing only on overreaching or oppressive influences from that case.
JURI-515 Legal Writing and Analysis Prof. Burner 1/28/2024 Froydan Deleon Torres
Case Brief #1: Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989)
Facts: The married couple, Sandra and George Derby were divorcing after 21 years of marriage. Sandra Derby sought a divorce for cruelty, whereas George Derby retaliated by alleging adultery. Through these proceedings, Sandra managed to persuade George into signing a new property settlement agreement. However, the said agreement was invalidated by the court cause Sandra appealed on grounds that she had no solid evidence of alleged adultery and challenged infringement due to fraud, duress & undue influence.
Procedural History: Sandra Derby filed for divorce on October 6,1983 based on cruelty. On October 14, 1985 George Derby counter-filed for adultery. The divorce was decreed, and the court found that because of false pretenses; the new property settlement agreement is not valid. Sandra Derby appealed this decision.
Issue(s): Was the amended property settlement agreement signed by George Derby void because of fraud, coercion and undue influence that allegedly ensued from Sandra Derby?
Rule(s) of Law: Adultery needs not to be proved beyond reasonable doubt but must sufficiently established by evidence. Constructive fraud corresponds to a violation of legal or equitable obligations defined as necessarily deceptive, or in breach of confidence. Most marital property settlements which have been made by competent parties for proper reasons are supported until their illegality is obvious and specific.
Holding(s): The Court held that the separation agreement is void on grounds of unconscionability, constructive fraud and duress.
The Court’s Order: The Court of Appeals affirmed the trial court’s decision, holding that property settlement agreement was void.
Reasoning: The court affirmed based on Mrs. Derby’s adultery, the suspicious circumstances regarding signing of a new property settlement agreement and dishonesty by her at the moment as well.
New Information: Witnesses gave evidence about Emotional and mental condition of Mr. Derby. Mrs. Derby’s adultery was revealed from the deposition given by a private detective, employed to investigate this case of divorce proceedings.
Questions, Comments, and Speculations: Was Mrs. Derby’s pursuit of a fresh property settlement agreement driven by financial or emotional motivations? Did Mrs. Derby completely understand the monetary ramifications and returns attached to that property?
Case Brief #2: Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005)
Facts: The date of marriage of Diana Ruth Merget Galloway (appellant/wife) and David William Galloway was June 1, 1984; the couple separated on October 1,200 pl. The husband was a business owner, whereas the wife worked in her former employer’s company after retirement. The husband bought the marital home long before their marriage and then owned more property. The woman received a debt-free house and cash from her father. In 2001, the husband delivered a property settlement agreement to his wife, who signed it without offering alterations or seeking legal advice.
Procedural History: The wife appealed the judgment of trial court, which reversed a decision rendered by commissioner in chancery that claimed settlement as unconscionable.
Issue(s): In view of the division of assets and how it was signed, is the property settlement agreement unconscionable?
Rule(s) of Law: Evidence of gross disparity in the property division as well as oppressive influences on ballast amounts to unconscionability changes marital property settlements. Law and practice favor marital property settlements as they tend to be enforced, unless their illegality is clear on its face.
Holding(s): The Court held that the property settlement agreement was not unconscionable. Evidently, the husband demonstrated no overreaching or oppressive behavior even though there was a big difference in property division.
The Court’s Order: The Court of Appeals upheld the ruling by the trial court, according to a property settlement agreement.
Reasoning: The husband was not guilty of bad faith, coercion or any form of trickery. However, the wife could have consulted a lawyer but she declined. The court stressed that the wife’s voluntary activity and financial self-reliance did not contribute to a conclusion of an unconscionable situation.
New Information: The wife had an inheritance, which gave her financial independence and in this way is another crucial element for the court decision where a factor that influences unconscionability waiting more than just asset disparity.
Questions, Comments, and Speculations: Was the result would be also change if wife has done legal advice or suggested changes in agreement? How does the court establish a compromise between freedom to contract and prevention of unconscionable agreements?
Case Brief #3: Sims v. Sims, 55 Va. App. 340 (2009).
Facts: In 1968, Barbara J Sims (wife) got married to Marvin Junior Sims and they separated in the year 2006. To begin with, the wife hired an attorney but was compelled by finances to proceed pro se. The husband offered to give the wife $2,000 per month as part of a property settlement. Eventually, the wife demanded to divorce quickly without getting anything from marital wealth. An agreement of property settlement was entered by waivers from the wife’s rights to alimony, equitable distribution and retirement benefits resulting in a pickup truck as well as some personal possessions.
The wife appealed the final decree of divorce that included a property settlement agreement claiming it was unconscionable. The trial court first concluded that the agreement was unconscionable but reversed its judgment after reconsideration.
Issue(s): Was the property settlement agreement unfair because of huge disparity in asset distribution and a wife’s situation?
Rule(s) of Law: Unconscionability in marital agreements is ascertained based on the evidential gross disparity of division of assets and overreaching or oppressive influence. In law, marital agreements are accepted unless proven to be unconscionable by means of clear and convincing evidence.
Holding(s): The Court of Appeals overruled the decision of trial court arguing that property settlement agreement was unconscionable as it rather rests upon gross disparities in asset division and wife’ condition including her health conditions, financial dependency.
The Court’s Order: With the opinion that agreement was unconscionable, The Court of Appeals remanded for proceedings.
Reasoning: The court held that the vast inequality in division of assets, along with wife’s health conditions, limited education and financial dependence constituted unconscionability. This conclusion was further supported by the wife’s ignorance about the effects of an agreement and her dependency on limited assets together with public aid.
New Information: This case emphasized the necessity to consider both a financial gap between spouses and personal situation for disadvantaged one in defining unconscionability.
Questions, Comments, and Speculations: What would have happened if the wife had a lawyer in every step of the process? How does the court strike a balance between freedom to contract as presumed in marital consent and protection of vulnerable parties?
Case Brief #4: Chaplain v. Chaplain, 682 S.E. 2d 108 (Va. Ct. App. 2009).
Facts: In 1997, Rabha Chaplain (wife) married Billy W. Chaplain (husband). The wife came to the United States from Morocco not long before meeting her husband. The wife signed the premarital agreement prepared by her husband’s attorney. By this agreement, the wife’s rights to make a claim with respect of her husband’s property were dismissed as well as those regarding spousal maintenance; equitable distribution retirement and life insurance benefits attorney fee costs conditional $100.
Procedural History: The wife challenged the decision of the trial court regarding validity and enforceability of premarital agreement. The trial court had allowed the husband’s motion to strike concluding that rather than being unconscionable, it was enforceable agreement.
Issue(s): Was the premarital agreement that which was unconscionable and therefore not enforced?
Rule(s) of Law: If a premarital agreement is unconscionable at the time of signing, it will not be enforceable. The Virginia Premarital Agreement Act demands full disclosure of assets and liabilities, a written waiver which serves as grounds for enforceability is necessary.
Holding(s): The Appeals Court reversed the ruling of the trial court, declaring that pre marital agreement unconscionable and therefore not enforceable owing to financial non disclosure by husband as well independent written waiver from wife.
The Court’s Order: Reversing and remand to further proceedings consistent with the opinion that agreement was unconscionable and not enforcible.
Reasoning: The court determined that the inequality in how assets were distributed, and the conditions under which agreement was signed including wife’s lack of understanding of English and a lawyer prevented her entering into such an unconscionable contract. In addition, the husband’s failure to disclose his assets and lack of a signed waiver by wife proved this ruling.
New Information: The case demonstrated that full financial disclosure and informed consent are critical for premarital agreements, especially when the separation of assets shows notable differences.
Questions, Comments, and Speculations: What would have happened if the wife had been given some independent legal advice or was only more transparent with regard to financial statements? What are the implications of this case on the validity premarital agreements when there is a great language barrier or cultural differences?