Reprints of the Multi-state Performance Tests may be purchased from NCBE . Here are summaries of tests from 1997-2001.

1997 

Alexander v. BTI and Bell (February 1997, MPT-1).  Applicants represent the defendants, Briarwood Tennis, Inc. (BTI) and the club's tennis director, Sandy Bell, in an action for negligence.  The plaintiff alleges that she sustained an eye injury during a warm-up session with Bell.  Applicants are instructed to prepare a brief in support of a motion for summary judgment on the tort theory of assumption of the risk.  The File includes a memorandum on how to write a persuasive brief, a medical summary, and excerpts from depositions of the plaintiff and defendant.  The Library consists of two cases.

In re Hayworth and Wexler (February 1997, MPT-2).  Applicants work for a law firm whose longtime client, Hank Hayworth, has asked to have a premarital agreement prepared in anticipation of his marriage to Wendy Wexler.  The firm also represented Wexler in a personal injury case that was settled two years ago.  Applicants are instructed to prepare a memorandum to the supervising attorney discussing the ethical issues relating to how Wexler's rights affect the enforceability of the agreement and what particular ethical problems are presented by Wexler's being unrepresented by independent counsel.  The File includes notes of an interview with the client and a partial first draft of the premarital agreement.  The Library contains a case and excerpts from the Franklin Rules of Professional Conduct.

In re Kiddie-Gym Systems, Inc.  Applicants work for a law firm whose business client, Kiddie-Gym Systems (KGS), contracted to furnish and install playground equipment at three malls.  Two days after KGS completed the first installation, a fire at the mall destroyed the equipment.  Applicants are instructed to prepare an opinion letter addressing the UCC issues relating to which party bears the risk of loss and whether KGS is obligated to pay shipping and handling charges billed by the equipment supplier.  The File includes guidelines for preparing opinion letters to clients and copies of the contracts between the parties.  The Library consists of excerpts from the Franklin Commercial Code and three cases.

State v. Devine.  Applicants work for the District Attorney prosecuting David Devine for possession of cocaine with intent to distribute. During a one-day recess of the trial, applicants are instructed to write a persuasive brief arguing for admission of testimony of witnesses concerning two instances of prior criminal conduct, one that occurred two days before Devine's recent arrest and a second that occurred 18 months ago and that resulted in a conviction.  The File includes a memorandum on how to write trial briefs, a transcript of the trial, and a copy of the 1996 arrest report.  The Library contains the applicable criminal statutes, excerpts from the Franklin Rules of Evidence, and one case.

1998

Piccolo v. Dobbs (February 1998, MPT-1). Applicants represent the plaintiff in a personal injury lawsuit arising from an automobile accident and pending in the local federal district court. Counsel for the defendant has refused to produce recordings and transcripts of two witness statements taken by an insurance investigator at the time of the accident, claiming work-product protection. Applicants are instructed to write a persuasive brief in support of a motion to compel production of the materials. The File includes a memorandum on how to write persuasive briefs and excerpts from three depositions. The Library contains an abridged version of Rule 26 of the Federal Rules of Civil Procedure and two cases.

In re Gardenton Board of Education (February 1998, MPT-2). Applicants work for a law firm that represents the local Board of Education. In response to criticism about the propriety of material appearing in the high school newspaper and in student theatrical productions, the Board wants to adopt a code that will regulate all student communications at the high school. Applicants are instructed to write a memorandum in which they evaluate the constitutionality of the provisions in the draft code the Board has prepared. The File includes a transcript of a discussion with the President of the Board and a copy of the proposed Student Communications Code. The Library includes excerpts from the US and Franklin Constitutions, provisions of the Franklin Education Act, and three cases.

State v. Baker (July 1998, MPT-1). Applicants work for the District Attorney prosecuting Robert Baker for larceny by false pretense. Applicants are instructed to write a memorandum in which they identify the facts that support the indictment, determine whether the indictment is flawed, and identify what choices are available to cure the defect. The File includes a copy of the indictment and a transcript of the testimony of three witnesses in the grand jury proceedings. The Library includes excerpts from the Franklin Criminal Code, the Franklin Code of Professional Responsibility, and one case.

In re Laser Lens, Inc. (July 1998, MPT-2). Applicants work for a law firm whose business client, Laser Lens, Inc. (LLI), wants to expand its operations. Applicants are instructed to prepare a letter to the clients explaining what the legal, economic, and personal consequences would be on the goals they have for themselves and their business if they accept a proposal to raise funds by selling additional stock in the company. The File includes the letter from Industrial Security Insurance offering to purchase LLI stock, the LLI articles of incorporation, a transcript of an interview with the clients, and a newspaper article. The Library consists of excerpts from Franklin Business Corporation Law.

1999

Meley v. Boundless Vacations, Inc. (February 1999, MPT-1). Applicants represent a travel agency, Boundless Vacations, Inc. (BVI), whose client, Philip Meley, was robbed and beaten while on the most recent of a series of business trips BVI had arranged for him. Meley's lawyer claims BVI was negligent in reserving a room for Meley at a motel in a high crime area. Applicants are instructed to write a memorandum in which they analyze the legal and factual bases of BVI's potential liability, discuss the facts that support or undercut BVI's position, and identify additional facts that would strengthen BVI's position. The File includes transcripts of interviews with BVI's President and the employee who had arranged for Meley's travel, the demand letter to BVI from Meley's attorney, and an investigative report. The Library consists of excerpts from Restatement (Second) of Agency and two cases.

In re Sylvester Parks (February 1999, MPT-2). Applicants work for the law firm that has been retained by Bob Parks to challenge the validity of the will his father had executed while in the hospital during his final illness. Sylvester Parks, an eccentric peddler who repaired umbrellas from his pushcart and was known as "The Umbrella Man of Bristol," died rich and left his entire $750,000 estate to a cult called the Divine Inspiration Society. Applicants are instructed to write a memorandum that states the most persuasive arguments that can be made to attack the will on the theories of insane delusion and undue influence. The File includes notes of an interview with the client, the father's handwritten will, and a newspaper article. The Library consists of three cases.

In re Marina Martin (February 1999, MPT-3). Applicants represent Marina Martin in a dispute involving 100 acres of land. Martin has always believed her father, Steve Bailey, owned the land on which he lived for the last 35 years of his life, but she has received a letter from the current owner of the surrounding 2,475 acres demanding that she stop trespassing. Applicants are instructed to write an objective memorandum analyzing the legal and factual bases on which Martin might assert claims to the property. The File includes excerpts from an interview with the client, an investigative report, and excerpts from an interview with a worker at the hotel that owned the surrounding property during the time Bailey lived there. The Library consists of two cases.

In re Steven Wallace (July 1999, MPT-1). Applicants represent an artist, Steven Wallace, who left a painting titled "Hare Castle" on consignment with an art dealer, Lottie Zelinka. Zelinka returned the painting to Wallace after filing for bankruptcy, and the Trustee in Bankruptcy has demanded that Wallace return "Hare Castle" to the bankrupt estate. Applicants are instructed to write a memorandum in which they analyze the legal and factual bases of the trustee's claim to the painting, analyze Wallace's defenses as specified in the Franklin Commercial Code, explain how the facts currently known support the defenses, and suggest what additional facts might be developed to support the defenses. The File includes notes of an interview with Wallace, the receipt for and appraisal of "Hare Castle," and the demand letter from the attorney representing the Trustee in Bankruptcy. The Library consists of excerpts from a basic bankruptcy treatise, sections of the Franklin Commercial and Civil Codes, and two cases.

Kantor v. Bellows (July 1999, MPT-2). Applicants work for the law firm representing Linda Kantor in her divorce from her husband, Bill Bellows. The only contested issue is whether the enhanced earning capacity created by Bellows' law degree and license to practice law will be treated as property, subject to division between the parties under Franklin's equitable distribution statute. The intermediate Franklin appellate courts have split, and the Franklin Supreme Court has not ruled on the issue. Applicants are instructed to write a letter to opposing counsel arguing that Kantor is entitled to a share of Bellows' enhanced earning capacity, addressing counter-arguments that would deny or diminish her share, and making a settlement demand in a specific amount. The File includes notes from an interview with Kantor and a letter from an expert estimating the present value of Bellows' enhanced earnings. The Library consists of sections of Franklin Domestic Relations Law and the two relevant appellate decisions.

In re Emily Dunn (July 1999, MPT-3). Applicants work for the law firm that has been asked to rewrite the will of Emily Dunn, who was recently widowed. Most of what Dunn wants to accomplish is straightforward, but there are special problems associated with the disposition of insurance proceeds, gifts of stock in the family company, equalizing gifts to her grandchildren, and the distribution of the residuary estate. Applicants are instructed to draft the introductory and dispositive clauses of the will reflecting Dunn's wishes and to write explanations articulating the factual assumptions they used in resolving the insurance, stock, grandchildren, and residuary clause issues and giving the reasons they drafted the provisions the way they did. The File includes excerpts from an interview with the client, an office memorandum prescribing the format used by the firm in drafting wills, and a copy of Dunn's old will. The Library consists of two cases and excerpts from a treatise on wills.

2000

In re Application Specialists, Inc. (February 2000, MPT-1). Applicants represent Application Specialists, Inc. (ASI), a Franklin corporation that has recently offered a job to Maria Pedroza, a former employee of SEA, an Olympia corporation that is one of ASI's competitors. SEA has threatened to sue Pedroza for breach of the non-competition clause in her contract of employment, in which she agreed not to accept employment with a competitor for one year after termination from SEA. Employee non-competition agreements are not enforceable under the law of Franklin but are enforceable under the law of the state of Olympia. Applicants are instructed to write a memorandum analyzing which state's law the Franklin District Court will apply and what the likely outcome will be on the issue of the enforceability of the non-competition agreement. The File includes the transcript of a client interview, the demand letter from Sea's General Counsel, an excerpt from Pedroza's employment agreement with SEA, and the ASI job announcement to which Pedroza responded. The Library consists of sections of the Restatement (Second) of Conflict of Laws, two Franklin cases, and one case from Olympia.

Proffet v. Dinsdale Instruments, Inc. (February 2000, MPT-2). Applicants represent defendants in a claim for quantum meruit filed by Mary Proffet, a former high-level employee. She claims her work for Dinsdale Instruments was the principal factor that resulted in growth in the company's worth from $500,000 to $198 million over the ten-year period in which her annual compensation grew from $26,500 to $650,000. Proffet believes she should have been given stock in the company. At the close of the evidentiary phase of the trial, the judge has tentatively accepted plaintiff's jury instruction on the measure of damages to be applied but has directed the parties to brief the issue. Applicants are instructed to write a brief that persuades the court to adopt defendants' instruction and to explain why plaintiff's instruction is erroneous. The File includes guidelines for writing persuasive briefs, excerpts from the trial transcript, and the contending proposed jury instructions. The Library consists of sections of the Restatement, Restitution and two cases.

In re Lewis T. Travin (February 2000, MPT-3). Applicants work in the firm that has been retained by Lewis T. Travin to represent him in a disciplinary action before the Franklin State Bar Office of Lawyer Discipline. Travin is alleged to have assisted a criminal defendant, George Clausen, whom he knew to be using the false identity "Frank Bogason," in perpetrating a fraud on the court. Applicants are instructed to write a memorandum identifying Travin's potential acts of misconduct, arguing that none of the acts violates the Franklin Rules of Professional Conduct, and, assuming one or more acts were violations, arguing that the acts were done in good faith, were at worst only technical violations, and that the Office of Lawyer Discipline should therefore dismiss the charges. The File includes notes of an interview with Travin, the letter of complaint, and a preliminary investigation summary. The Library consists of excerpts from the Franklin Rules of Professional Conduct (which are identical to the ABA's Model Rules) and an ABA opinion regarding client perjury.

Pauling v. Del-Rey Wood Products Co. (July 2000, MPT-1). Applicants represent Letitia Pauling, who was recently fired from her job as a shipping and receiving clerk at Del-Rey Wood Products Co. Pauling has filed suit to recover three years of unpaid overtime wages under the Fair Labor Standards Act, and Del-Rey has answered, denying that it is covered by the Act. There are two bases for establishing the application of the Act: "enterprise coverage" and "individual coverage." Applicants are instructed to draft six interrogatories designed to obtain information on whether there is any basis for asserting "individual coverage" of the Del-Rey employees under the Fair Labor Standards Act and to follow each interrogatory with a brief explanation of how it will serve its intended purpose. The File includes notes of an interview with Pauling and, as exemplars to guide applicants, the supervising attorney's draft of three interrogatories regarding "enterprise coverage." The Library includes excerpts from a treatise on discovery techniques, excerpts from the Fair Labor Standards Act and Regulations, and one case.

March v. Betts (July 2000, MPT-2). In this pro bono matter, applicants represent Arlene March, a disabled woman who must wear a specially fitted back brace. The back brace was inadvertently left in the trunk of a Sun Cab taxi when the driver, Gary Betts, drove away after arguing with March over the amount of her fare. Efforts to retrieve the back brace have failed, and Sun Cab has denied responsibility. March has complained to the Porter City Taxi Commission, and the Commission has ordered mandatory mediation of the matter. Applicants are instructed to write a persuasive mediation statement relying on three legal theories: that Betts breached a contract of bailment; that Betts was negligent; and that Sun Cab is vicariously liable. The File includes an interview with March, the Commission's procedures for mediation, March's complaint, and correspondence with Sun Cab. The Library includes three cases.

Franklin Asbestos Handling Regulations (July 2000, MPT-3). Applicants work in the Environmental Protection Division of the Office of the Attorney General. The Office has been asked to review proposed regulations under the recently enacted Asbestos Handling Act (AHA). The supervising attorney anticipates a challenge to the AHA and the proposed regulations on the ground that they are preempted by the federal Occupational Safety and Health Act (OSH Act) and the implementing federal regulations (OSHA regulations). Applicants are instructed to write a memorandum that states the best case for why the statutory and regulatory scheme is not preempted in its entirety and discusses whether each provision of the draft regulations can survive a preemption challenge. The File includes the Franklin Asbestos Handling Act, the draft regulations, and a research report on the dangers of asbestos. The Library consists of excerpts from the OSH Act, excerpts from OSHA regulations, and two cases.

2001

State v. Palm (February 2001, MPT-1).  Applicants represent Claude Palm, who is charged with possession of cocaine and marijuana with intent to sell.  Pursuant to a search warrant that authorized a "no-knock" entry, police entered Palm's house without knocking or announcing their authority or purpose.  During the search, police found cocaine, marijuana, drug paraphernalia, and a police scanner.  Applicants are instructed to draft a persuasive brief in support of a motion to suppress physical evidence on the grounds asserted in the motion: that the affidavit on which issuance of the warrant was based was deficient; and that the facts were not sufficient either before or at the time of the search to establish a reasonable suspicion that the evidence would be destroyed, or that the officers would be endangered, without a no-knock entry.  The File includes a memorandum on writing persuasive briefs, the motion to suppress, excerpts of interviews with Palm and a witness, the application for the search warrant, and the search warrant.  The Library consists of excerpts from the Franklin Code of Criminal Procedure and one case.

Steinberg & Son, Inc. v. Wye (February 2001, MPT-2).  Applicants work for a firm that has recently undertaken representation of Jack Steinberg & Son, Inc., the plaintiff in an acrimonious lawsuit against Murray Wye that has been going on for four years.  Steinberg was previously represented by the law firm of Purta & Paul (P&P).  Wye has been represented by Doyle & Davis (D&D) since the inception of the lawsuit.  The applicant's firm has learned that Philip Fine, who was an associate at P&P during the time the firm represented Steinberg, has left P&P and joined D&D as a partner.  Applicants are instructed to write an objective memorandum that analyzes whether a motion to disqualify D&D as counsel in the case is likely to succeed and to identify and explain the necessity for any additional facts that might assist in the analysis.  The File contains correspondence between P&P and D&D regarding Fine's involvement with Steinberg and a D&D "ethical wall" memorandum expressing the intent to isolate Fine from any involvement in the Wye matter.  The Library consists of excerpts from the Franklin Rules of Professional Conduct, which are identical to the ABA's Model Rules, and one case.

Consumer Protection Division v. Bernhard's Appliances, Inc. (February 2001, MPT-3). Applicants work in the Consumer Protection Division of the Franklin Attorney General's office.  Bernhard's Appliances, Inc., a chain of appliance stores with a history of questionable sales promotion tactics, has recently run an ad offering "free" airline tickets to customers who make significant purchases.  An investigation has confirmed that the ad violates the Franklin Consumer Protection Act.  Past conciliation efforts to curb Bernhard's practices have failed, and the Division has decided to seek an injunction.  Applicants are instructed to write a brief to persuade the court that Bernhard's promotion violates the Act and that an injunction should be granted.  The File includes a memorandum regarding persuasive briefs, the Bernhard's advertisement, and the investigative report.  The Library contains excerpts from the Consumer Protection Act and two cases.

State v. White (July 2001, MPT-1).  Applicants are attorneys in the Public Defender's Office, which represents James White, who is being prosecuted for homicide for killing his brother with a knife. Less than a year before the homicide, White had attacked the same brother with a knife and was charged with aggravated assault. The Public Defender's Office also represents White on the assault charge, which is pending. A Public Defender staff social worker interviewed White after his arrest for the assault. During that interview, White made admissions, denials, and related statements about the assault and his feelings toward his brother. He also told the staff social worker about his mental health problems and treatment history. The social worker wrote a report based on her interview and gave it to White's public defender, who relied on the information in the report to get White released to a treatment facility. The prosecutor has now subpoenaed the social worker's report in the hope of using White's statements about the assault to support an indictment for homicide. Applicants are instructed to write an in camera brief in support of a motion to quash the subpoena arguing that the communications between White and the social worker are privileged under the social worker-client and/or attorney-client provisions of the Franklin Evidence Code. The File includes a memorandum on how to write persuasive briefs, the subpoena, the motion to quash, the attorney's notes, and the social worker's report. The Library contains two cases and portions of the Franklin Evidence Code.

True Values Television Network, Inc. (July 2001, MPT-2).  Applicants work in a law firm representing True Values Television Network, Inc. (TVTV), which owns 80 television stations nationwide broadcasting only family-oriented programs. The chairman of TVTV's Board of Directors has asked the firm to advise the Board on its options in the face of a hostile takeover attempt by Metro, a large media company with a programming philosophy at odds with that of TVTV. In an effort to thwart Metro's takeover attempt, the chairman of the TVTV Board has stepped up merger negotiations with Friendly Publishing, a company that has no broadcasting experience but pledges to continue TVTV's family-oriented programming. Friendly has offered to buy TVTV's assets at a lower price per share than the price Metro has offered. A major institutional investor in TVTV is demanding that TVTV abandon its negotiations with Friendly and instead cooperate with Metro's acquisition efforts. Applicants are asked to draft a memo to the supervising partner describing what are the conflicting interests of the corporation, each shareholder group, and the other groups identified in the Franklin Corporations Code. Applicants are also asked to analyze whether the Board can justify negotiating exclusively with Friendly in light of these competing interests and in the context of its fiduciary duty. The File contains letters from Metro and the institutional investor, the supervising attorney's notes from his interview with TVTV's chairman, a confidential financial report, and a news article. The Library consists of excerpts from the Franklin Corporations Code and one case.

Petition of Mona St. John (July 2001, MPT-3).  Applicants are attorneys in a law firm undertaking pro bono representation of Mona St. John, who is serving a life sentence without parole for killing her physically abusive husband. Since St. John's conviction, the legislature has added a provision to the Franklin Evidence Code allowing the admission of evidence of "battered women's syndrome" (BWS) as a defense in criminal trials provided a sufficient foundation is laid. Applicants are asked to draft the legal argument portion of a petition for executive clemency on St. John's behalf, setting forth what effect BWS evidence would have had on St. John's case at trial and how the change in the Evidence Code supports her request for clemency or commutation of her sentence. The File consists of trial transcript excerpts, a letter from St. John's prison warden, and a declaration from a psychologist who is an expert on BWS and who interviewed St. John. The Library contains provisions of the Franklin Evidence and Penal Codes, an article from the Franklin Constitution, a treatise on executive powers, and one case.