BRIEF: ROUGH DRAFT ASSIGNMENT INSTRUCTIONS
OVERVIEW
So far in this course, all assignments have focused on an objective view of the facts and cases.
You have read and drafted case briefs that have objectively examined the facts and law of a case.
Then, you drafted an objective, predictive office memo. Now, we are going to switch gears from
being an objective observer to being an advocate. You will continue with the same cases with
which you have been working for this assignment. Nothing about the law will be changing. The
only change you will be making is switching from objective to persuasive writing for a client.
A brief, contrary to its description, is not brief at all. It is a persuasive argument presented to a
court. Briefs are filed by the attorneys, generally in an appellate court. The brief outlines and
explains the issues, facts, law, and analysis that the court will need to perform. However, each
side will file a brief with the court that takes all of this information and presents it in a persuasive
manner.
The great news is that you have already done a lot of hard work(SEE ATTACHED PREDICTIVE MEMO PRIOR WORK). You have read and briefed all of
the cases that you will use for this assignment. You have even drafted a discussion section with
all four of the rule explanation paragraphs you need. However, now you are going to switch from
being objective to being persuasive. For the brief, you will use the same information but will
become an advocate for your client. At this point, you have already examined the law. Thus,
your focus now should be on crafting logical and reasoned arguments for your client.
INSTRUCTIONS
Follow the format that has been included in the prompt (SEE ATTACHED-JONES BRIEF PROMPT)J provided by your
professor. This includes the headings and sections. Make sure your brief is:
3 to 5 pages in length.
Does not include a cover page or running heads.
Single-spaced, Times New Roman, 12-point font
Uses the same four rule explanation paragraphs as your memo. However, make sure to
incorporate the feedback provided by your professor in the memo.
o Two rule explanation paragraphs in the first section of the argument.
o Two rule explanation paragraphs in the second section of the argument.
Includes two rule application paragraphs
o One rule application paragraph at the end of the first section of the argument.
o One rule application paragraph at the end of the second section of the argument.
Cite cases using the Bluebook in-text citation method
Only the four assigned cases should be used – no outside sources. Here are the cases:
1-Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989)
2-Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005)
3-Sims v. Sims, 55 Va. App. 340 (2009)
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 AI TO WRITE THIS, IT MUST BE WRITTEN BY A HUMAN, I WILL CHECK. TURNITIN WILL CHECK AS WELL.
The Law Offices of Patrick, Wayne and Swayze
To: Legal Assistant
From: Susan K. Patrick, Esq.
RE: Andrew and Allison Jones, Unconscionability defense – Firm File number 4182016
I just met with Andrew and Allison Jones. They recently purchased a laundry pair from Advantage Housewares in Greenacre, Virginia. The Jones think they may have been the recipients of a bad contract. Now, they have been named as defendants in a lawsuit by Advantage to have the contract enforced.
Since you researched and drafted a memo on the Virginia standard of unconscionability, I would like for you to provide me with a rough draft of a brief we can eventually file with the trial court. Hopefully, we can assert that the enforcement of the remainder of the contract would be unconscionable.
You did a nice job breaking the law into two different elements in your memo: 1) gross disparity, and 2) overreaching/oppressive influences. Please use this same breakdown of the law, but incorporate the feedback that I provided to you. Also, make sure to apply the rules to the facts of the client’s case. Remember, the court in which we will file the brief follows the Bluebook citation method and only permits in-text citation.
We don’t know the case number yet, so you don’t need to include a case caption or title. Instead, start with the introduction and follow the format that we use for a trial-level brief. Please provide me with your rough draft by Sunday of Module 5: Week 5 at 11:59 pm. You can find my notes from the interview below.
Notes from Interview:
Andrew and Allison Jones returned home from a shopping trip to find that their washer and dryer had both stopped working. The Joneses live in a rural area of Virginia known as Greenacre. As a result, they do not have access to a laundromat. This means that needed to quickly purchase a washer and dryer set to be able to clean their laundry.
Unfortunately, the Joneses were going through a difficult financial period. As a result, they decided to go to a store that would allow them to make small monthly payments over a period of time, but acquire the set immediately. They understood that they may pay a bit more overall, but felt the quick delivery and extended payment would be worth the slight additional cost.
After visiting several different stores and being told they would not qualify, the Joneses stopped at Advantage Housewares. The top salesman was Paul Plyburn. Paul met the Joneses at the door and welcomed them into the store. He asked if there was anything he could help them find, and Andrew told him their story. Paul was more than happy to help. He explained that they would pay a bit more in the long run, but the price would still be competitive. He also stated that they would be able to have their new set delivered that afternoon.
The Joneses were thrilled. They followed Paul to his office, signed an agreement stating that they would make 12 monthly payments. Each payment would be for $250. The Joneses thought this price was a bit high but knew they could make the $250 payment each month and felt that they didn’t have any other options. Advantage delivered the set later that afternoon.
Two weeks later, Advantage sent a letter to the Joneses. The letter explained that because they had missed a payment, they now owed an additional $1000. In addition, a clause in the contract accelerated their payments. The remaining $2750 ($1750 in remaining payments, and $1000 late fee) was due immediately.
Andrew and Allison were shocked. Andrew decided to go online and investigate the price of the laundry set. He learned that this set is sold at Lowes, Home Depot, and other big box stores. The price listed by each retailer ranges from $1000 to $1250. Andrew and Allison were heartbroken. Their total cost is now going to be $4,000 and is due immediately.
One week after receiving the letter from Advantage, the Joneses received notice that Advantage has filed an action against them to have the contract enforced, or their much-needed laundry set will be repossessed.
This document may contain information that is privileged or confidential. If you are not the intended recipient, please delete the information and notify us immediately.
,
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To: Susan K. Patrick, Esq. From: Froydan Deleon Torres Date: February 11, 2024 RE: Predictive Office Memo
Question Presented How does the Virginia courts apply the two-part test to determine if an agreement is unconscionable?
Brief Answer Virginia courts examine the presence of gross disparity in the division of assets and whether an overreaching or oppressive influence forced one of the parties to sign the agreement against their will. Under the two-part test, a gross disparity happens when the division of assets depicts extreme inequality between the parties involved. Overreaching or oppressive influences describe one party's ability to inflict coercion on the other party, forcing the second party to sign the agreement, in which the oppressor gains more upon settlement.
Discussion The two-prong test in Virginia courts involves establishing if the agreement depicts gross disparity, in which the courts determine if there were extreme inequalities during asset sharing. The second part of the two-prong test involves determining if overreaching or oppressive influence was induced on one of the parties by the other. In this test, the court examines the ability of the parties to coerce the other into making or signing the agreement for their benefit or to give them an advantage upon settlement. The two-part test is essential, and the two tests should be performed; however, in most cases, especially during extreme cases, the courts can determine there is unconscionability based on gross disparity. This happens when there is extreme inequality regarding the shared assets between the parties, depicting a significantly large proportion of the shared assets on one party compared to a reasonably smaller proportion on the second party.
Section 1: Gross Disparity
In case of an inequality in the division of marital assets, then the court considers this a gross disparity. The Galloways had considerable marriage issues that led to a divorce, and a divorce agreement was drafted. According to the divorce agreement, Mr. Galloway would reap about 94% of marital assets. Mrs. Galloway would receive a Chevy pickup truck, the value of which was $11,000. Other assets that Mrs. Galloway would receive included her personal property. In addition, Mr. Galloway was required to pay Mrs. Galloway $400 weekly if she continued to be an employee at the business. The agreement for this payment also stated that the payment remained if Mr. and Mrs. Galloway remained married. Mrs. Galloway was also entitled to inheritance from her father. Mrs. Galloway argued that the agreement involved gross disparity, citing extreme inequality in the shared marital assets between her and her husband. However,
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according to the court, the agreement did not depict any involvement of gross disparity even after the agreement showed uneven division of their marital assets. The court cited that Mrs. Golloway received an inheritance from her father. Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005).
According to Virginia courts, gross disparity entails a situation when there is unequal sharing or division of marital assets. In the case of Sims v. Sims, Mrs. Sims sought an easy and quick approach to divorce. The quick and easy approach to the divorce was attributed to Mrs. Sims's medical condition. According to the case, Mrs. Sims was managing medical issues during the case, which called for a fast and easier approach to settling the divorce. Upon divorcing, Mr. Sims received almost all their marital assets. The only assets that Mr. Sims did not receive included an automobile and all personal possessions that belonged to Mrs. Sims. The matter was taken to a trial court, which held that the agreement was unconscionable. This meant the agreement was to be set aside, calling for reversing the agreement and remanding further proceedings. Sims v. Sims, 55 Va. App. 340 (2009).
Section 2: Overreaching or Oppressive Influences Overreaching or oppressive influences occur when one party can coerce the second party into signing an agreement to gain an advantage upon settlement. In the case of Mr. and Mrs. Derby, the parties separated in June 1984. However, Mr. Derby fought to get his wife and family back. Mr. and Mrs. Derby agreed to hold a meeting in which they would sign the property separation agreement. The meeting was held in June 1984, and Mr. Derby agreed to sign the agreement. Mr. Derby signed the agreement, hoping he and his wife would reconcile and mend their marriage. The court held that the agreement was unconscionable, citing that Mrs. Derbe obtained the signature from Mr. Derby fraudulently and under duress. According to the court, Mrs. Derby knew that Mr. Derby was emotionally involved, using Mr. Derby's emotional aspect to make him sign the agreement. Based on these conditions, the court asserted that the agreement was unconscionable, citing overreaching influence from Mrs. Derby. Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989).
Overreaching or oppressive influences occur when one party can coerce the second party into signing an agreement to gain an advantage upon settlement. Mr. Chaplain, a devoted and wealthy businessman, was a self-made millionaire even before he met with his wife, Mrs. Chaplain. Mrs. Chaplain could not read, write, or speak in English correctly. After the engagement, Mr. Chaplain, knowing that his spouse had little understanding of English, created a premarital agreement. Mr. Chaplain knew that Mr. Chaplain could not understand the legal aspects of the premarital agreement because she did not understand English. The trial courts ruled that the premarital agreement was enforceable. However, the court of appeal discovered that the trial court erred, citing that Mrs. Chaplain had not established prima facie. The premarital agreement
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was reversed and termed unenforceable. The case was returned to the trial court for further proceedings. Chaplain v. Chaplain, 682 S.E. 2d 108 (Va. Ct. App. 2009).
Conclusion The two-part test is essential, as it helps courts have solid verdicts regarding marital agreements. The test involves determining that there was no overreach or undue influence to force one party into signing an agreement. The test also establishes that the agreement is made without the disclosure that the outcome of the agreement creates extreme imbalances in the shared assets. According to the courts, an agreement is unenforceable if it is unconscionable. The test involves establishing if the agreement depicts gross disparity or if overreaching or oppressive influence was induced on one of the parties by the other.
References:
Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989) Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005) Sims v. Sims, 55 Va. App. 340 (2009). Chaplain v. Chaplain, 682 S.E. 2d 108 (Va. Ct. App. 2009).
- Question Presented
- Brief Answer
- Discussion
- Section 1: Gross Disparity
- Section 2: Overreaching or Oppressive Influences
- Conclusion