Sample Bench Memo
“A lawyer is a person who writes a 10,000-word document and calls it a „brief‟.” Franz Kafka (1883-1924) This document is an example of the format for written argument where we want to tell the court something about applicable case law. We used a memo like this in an actual case. You should not use the substance of this sample without advice of counsel.
+++ VIRGINIA: In the General District Court of Forsythia County
Plaintiff, Plaintiffs, v. Case No. Defendant, Defendant.
Trial Memorandum of Defendant
This matter came on for trial on October 10, 2001 in a claim by Plaintiff for monies allegedly owed by Defendant pursuant to a license. Defendant presents this memorandum in support of its evidence adduced at trial.
A Presumption Favors Receipt of a Letter Properly Mailed.
All authorities hold that mailing a letter, properly addressed and stamped, raises a presumption of its receipt by the addressee. Hartford Fire Ins. v. Mut. Sav., Etc., Co., 193 Va. 269, 273, 68 S.E.2d 541, ___ (1952). 31 A.L.R.2d 1191. This Court should presume Plaintiff received the letter Defendant sent on August 18, 1998 canceling the 1
An Agent Acting with Apparent Authority Binds His Principal.
John Doe (“Doe”) signed the license agreement on behalf of his principal, Plaintiff. He indicated near his signature that he was vice-president for sales. The license agreement was a “sale” falling within Doe‟s apparent authority as agent for Plaintiff. For all that Defendant knew, Doe was the company. The closest analogy in case law for examining Doe‟s role as agent of Plaintiff is the relationship between an insurance agent and his principal. Restatement (Second) of Agency § 292 (1957) states in pertinent part, "[t]he other party to a contract made by an agent, . . . acting within his . . . apparent authority . . . is liable to the principal, as if he had contracted directly with the principal." Restatement (Second) of Agency § 8 comment d (1957) points out that when an agent, acting within the scope of his apparent agency, enters into a contract with a third person "the principal becomes immediately a contracting party, with both rights and liabilities to the third person." (Emphasis added.) Equitable Variable Life Ins. v. Wood, 234 Va. 535, 539, 362 S.E.2d 741, ___ (1987)
In the Wood case cited above, a life insurance contract required that notice of cancellation be mailed to the insurance company in order to be effective. The insurance agent told the insured that notice would be effective if it were mailed directly to him. The insured died in a plane crash within a day or two of mailing her cancellation notice to her agent. Wood presented to the Virginia Supreme Court the question of whether the oral representation of an agent -- in clear contravention of contract language – was binding on the agent‟s principal. The Court held that an oral modification by an agent is in fact binding on a principal even though it violated contract terms.
That same view was reiterated ten years later in the case of Marshall Erdman & Assoc. v. Loehr, 24 Va. App. 670, 485 S.E.2d 145, (1997). There, the Virginia Supreme Court again held: "An act is within the apparent scope of an agent's authority if, in view of the character of his actual and known duties, an ordinarily prudent person, having a reasonable knowledge of the usages of the business in which the agent is engaged, would be justified in believing that he is authorized to perform the act in question." Wright v. Shortbridge, 194 Va. 346, 353, 73 S.E.2d 360, 364-65 (1952) (citations omitted). Id., 24 Va. App. 670, 678 (1997).
What does this application of agency law mean in terms of the dispute between Plaintiff and Defendant? It means that when an Plaintiff salesperson told Defendant that the license was on thirty-day approval, Defendant was entitled to rely on the salesperson‟s representation by canceling within 24 hours and owing nothing more. It further means that after Doe, corporate vice-president for sales, reassured Defendant by telephone that Defendant‟ cancellation letter had been received, there was no longer any presumption as to reception of the letter. Plaintiff was on actual notice of license cancellation. Finally, pursuant to the law of agency, Defendant was entitled to rely on the oral representation of Doe that by sending a check for one month‟s usage, Defendant would owe nothing more. Defendant relied to its detriment by sending the requested check. Plaintiff cashed the check. The license was canceled, and there was no more money due after that point. For these reasons, the Court should find in favor of Defendant. Defendant, By Counsel
Olivier Denier Long, Esq., Virginia State Bar No. 27094 1420 Spring Hill Road, Suite 210 McLean VA 22102-3026 Telephone: 703-748-0600 Facsimile: 703-783-0537 Website: www.EZJustice.com C:\Documents\Administration of Office\Web Site\Sample Bench Memo.doc