Passing the Bar
 

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Prof. Randall

 

 

Suzanne Darrow-Kleinhaus

excerpted from: Suzanne Darrow-Kleinhaus, Incorporating Bar Pass Strategies into Routine Teaching Practices, 37 Gonzaga Law Review 17-39 (2001/2002)(67 Footnotes Omitted)

 

Theoretically, the sum total of your law school experience has prepared you for this moment. It just does so in a way that "looks" different because the MPT puts all the elements together in a manner that is new to students who have not yet had the opportunity to work with case files and clients. However, having worked with case files and clients, I can assure you there is no mystery to it nor any substitute for proficiency in the most basic of skills: the ability to read, organize information, think logically, extricate the relevant from the irrelevant, write clearly, and above all, follow directions. These are the skills you have developed in the course of your legal education and they are the ones the bar examiners are seeking to test in the MPT.

First, you will be called upon to read. But there is a very real difference between the type of reading you have engaged in for your law school classes and the type of reading you will do for the MPT. Here you must read pro-actively, with a critical eye toward solving a specific problem rather than answering a professor's questions in class. You must read carefully and quickly, all the while searching for useful information and answers to the particular issue you have been asked to resolve.

Second, you must organize your time and the materials effectively to complete the required task in the time allowed. The MPT is extremely time-sensitive, perhaps even more so than the essay or multiple choice components of the bar exam in that the candidate has but 90 minutes in which to read and analyze an assortment of unfamiliar materials and compose any one of the following written assignments--a memorandum of law, a letter to a client, a persuasive brief (including point headings), a contract provision, a will, a proposal for settlement, a discovery plan, or a closing argument, to list but a few of the possibilities.

Third, you must be able to write concisely, coherently, and in a tone and manner consistent with the nature of the assignment. In short, you must demonstrate your mastery of the language of the law and provide the bar examiners with more than "a scintilla of evidence" that you have attended law school. In short, you must "sound" like an attorney ready to begin the practice of law.

Fourth, you must be able to follow directions. It sounds so simple and basic but it is often ignored in the haste to begin writing. The MPT is task- specific: you must perform the task identified to receive credit. If you are instructed to write a letter to a client in which you evaluate various courses of action and instead write a persuasive brief, you will have done nothing but demonstrate to the bar examiners your inability to read and follow simple directions.

The directions on the MPT are important for yet another, even more compelling reason: they may ask you to identify additional facts that would strengthen or, alternatively, weaken a party's position. Since adding facts to a professor's hypothetical is a basic law school "no-no," you would never think to do such a thing--not unless you had read the directions. The ability to follow directions closely will save you time and energy, both on the bar exam and in practice generally.

III. Getting Down to Business

Having described the skills you need to perform on test day, now I will tell you how to develop them. It is very simple: you practice. Not quite a revelation, is it? During your law school career, most of you studied from your professors' sample exams. When you study from past exams, you get a sense of the type of questions asked and what is expected of you. Moreover, you get familiar with the style of the exam. The MPT is no different. Once again, you must study from past exams.

Still, preparation for the MPT is unlike preparation for the other parts of the bar exam. Here you are not tested so much on your knowledge of black letter law as you are on your ability to extract legal principles from cases and statutes and apply these principles to solve a specific client problem. The commercial bar preparation courses that most, if not all of you will take, provide a comprehensive review of the substantive law. Unfortunately, such courses are not designed to cultivate the analytical and writing skills you need on the MPT. These are the skills you should have developed in law school and these are the skills you must fine tune on your own.

Reprints of the MPT questions and a discussion of the issues and suggested resolutions of the problems as contemplated by the drafters of the MPT are available from the National Conference of Bar Examiners ("NCBE"). The examiners have selected prepared grading sheets, which describe the issues the candidate should discuss, and the grading guidelines, which allow candidates to review the guidelines they will be graded against.

Your first task is to acquire every available MPT and only then are you ready to begin. Next, select an exam packet. The back cover of each test contains the basic instructions for taking the exam. Read them now while you practice. Do not waste time during the exam by rereading that which is available to you now. At the exam, you willonly need to peruse the instructions to ensure that nothing has changed.

In addition to describing the materials in the exam packet, the directions will advise you that your problem takes place "in the fictitious state of Franklin, in the fictitious Fifteenth Circuit of the United States." You are also advised of the Franklin state court structure. Note how this should shape your reading of the problem to determine the authority of the various court decisions in your Library.

When you have completed reading the instructions, you are ready to examine the File and the Library. At this point, I would suggest that you consider using the following strategy. In working with students to prepare for the July 2001 MPT, I put together a set of guidelines that students found helpful and subsequently used as a blueprint to guide them through the problems during practice sessions and on the actual test day. Following this plan saves time and prevents panic: if you know what you are going to do, and practice the routine sufficiently, it will become second nature to you by test day.

First, review the table of contents. It identifies the types of materials in your File and the nature of your Library. You will want to know whether you are faced with a statutory problem or a common law problem. If you have a common law problem (which will be obvious when all you have are cases in your Library), then it is likely that you will have more work to do; typically, you will have to synthesize from the cases the applicable rule to be applied to your problem. Also, by perusing the table of contents, you can often identify the area of the law in controversy and thus immediately begin to inform your subsequent reading of the File.

Second, read the office memorandum directed to you, the MPT applicant. This is the single most important piece of paper in the File because it contains your directions: it is your mission statement and it introduces your problem and identifies your task. After reading this memorandum, you will know whether you are to write an objective memorandum, a persuasive brief, a client letter, or any one of a number of other possibilities. In reviewing the 26 available MPTs, candidates have been asked to perform the following tasks:

 

Task Number of Times

Write a memorandum 13

Write a persuasive brief 7

Draft a client letter 1

Draft a letter to opposing counsel 1

Draft interrogatories 1

Draft persuasive mediation statements 1

Draft clauses for a will 1

Draft an opinion letter 1

 

While it appears that writing a memorandum is the preferred task, the precise nature of the memo varies and, once again, you are urged to read carefully. The bar examiners may request that you do more than simply analyze the facts in light of the relevant law and write an objective evaluation; they may request that you identify additional facts that would strengthen a party's position, state the most persuasive arguments that can be made to support a given position, or identify likely outcomes.

Also, from the directions, you can identify the tone you are required to adopt in your writing. Whether you are to write an objective evaluation or a persuasive argument determines how you will approach the materials in your File. Knowing your task as you read is critical. If you know you must write a persuasive brief with point headings, you will be reading the cases with an eye toward formulating them.

The memo also reveals the precise issue you are asked to resolve. It may appear in the form of the questions you are asked to address in a client letter, in the argument you need to make in a brief, or even a supervising attorney's theory of the case. Read this memo twice to be certain you have identified your task and the issue to be resolved. Write the issue on your scratch paper so that you do not lose sight of it as you proceed.

Third, it is my experience that reading the Library before you read the File will be very instructive. By reading the law first, your subsequent reading of the client file will be formed by your knowledge of the controlling statutes and case law. On the other hand, if you read the File first, with its various excerpts from depositions, client communications, and attorney notes, it will be more difficult, if not impossible, to sift relevant from irrelevant information. You simply cannot know which facts are "relevant" until you know the law and how the cases in your jurisdiction have interpreted that law. While reading the Library first does not guarantee you will not have to review it again, it will make your subsequent reading of the client file meaningful and immediately productive.

When working in the Library, read the statutes and code provisions first. Not only are they shorter than cases, but they immediately identify the area of law in which you will be working and provide the basic elements for the rule you will have to analyze. Additionally, pay close attention to any "official comments" in a given statute or code provision. Including such comments are a means for the bar examiners to highlight an issue, draw your attention to a counterargument, or signal a legal distinction. Be aware, however, that there may be some authorities in the Library that are irrelevant. Clearly, you will not know what is not relevant to your analysis at this point, but you must necessarily wait to make that judgment until you read the client file. Once again, it will be your job to discern the relevant from the irrelevant based on your analysis of the law and its application to your facts.

Next to the actual writing of the assignment, reading the cases is the most time consuming portion of the MPT, but there is a strategy you can use to make each minute productive. First, remember that the bar examiners have carefully crafted or selected each case. This means that each one has something specific to tell you and is designed to be of use in your particular task. A case may give you the rule, provide an exception to the rule, or furnish you with a factual distinction from your problem. While being cognizant of your issue from the introductory memo, and, therefore, of the type of argument you will need to make, ask yourself these questions as you read each case: 1) "Why is this case in my library?" and 2) "How do I use this case?" Furthermore, do not ignore footnotes. If there is a footnote in a case, it is most likely there intentionally. While you might not know its significance at this point, be sure to keep it in mind when you subsequently read the File.

Often, the Library will include a case that articulates a rule in the course of its analysis. Sometimes, the bar examiners will be so blunt as to have the court state something like, "During the past 30 years, we have developed a two-pronged analysis for evaluating the validity of a premarital agreement." Such a statement is truly a "gift"--it gives you the rule and its two elements. Sometimes, your gift will not appear in the form of a rule with "prongs." In such cases, you must find your elements somewhere else. Often you will find them in a statute from your jurisdiction. Simply break the statute into its component elements and proceed accordingly.

However, for any gift to have its greatest impact, the donee must use it well. On the MPT, this means adapting the court's analysis to form your "mini working outline." The outline is then in place as you read the rest of the Library. You can add to and refine your understanding of the rule as well as add any exceptions or limitations to the rule you learn from the other cases. Then when you read your File, you can add your "facts" to correspond with each element of the rule, thus providing the first steps for your subsequent legal analysis.

IV. Getting Your Outline Organized

Now let's see how it's done. For example, if we look at Test 2 of the February 1997, MPT, In re Hayworth and Wexler, we find the full articulation of the rule that I referred to earlier. The Supreme Court of Franklin stated,

During the past 30 years, we have developed a two-pronged analysis for evaluating the validity of a premarital agreement. Under the first prong, the court must decide whether the agreement provides a fair and reasonable provision for the party not seeking enforcement of the agreement. If the court makes this finding, then the analysis ends and the agreement may be validated. If the agreement is not fair, the court must invoke the second prong and decide: (A) whether full disclosure has been made by the parties of the amount, character, and value of the property involved, and (B) whether the agreement was entered into intelligently and voluntarily on independent advice and with full knowledge by both spouses of their rights.

Your job is to use this rule to create an outline similar to the one shown below:

I. The agreement must be fair and reasonable for the party not seeking enforcement of the agreement.

Facts from the Library case: agreement found to be grossly disproportionate, denied common law and statutory rights, prevented claim against or rights against separate property.

If fair, then the analysis is complete.

II. If the agreement is not fair, then ask:

A. Was there full disclosure of the amount, character, and value of the property involved and

B. Was the agreement entered into intelligently and voluntarily on independent advice and with full knowledge by both spouses of their rights.

Facts from Library case:

A. Husband disclosed the nature and extent of his assets; wife disclosed her limited resources

B. Attorney never advised wife he was only representing husband

Facts from my case:

I.

II.

A.

B.

As you can see, the first thing you will do is break down the rule from the text of the case into its component elements. Then you will note the specific facts from the case that the court relied upon to come to its decision. You must also create a parallel set of point headings where you will note the facts from your case that correspond to each of the elements of the rule. This is your working outline of the rule. It need not be any longer or wordier than this. You should underline or highlight the key words as I have done to help you remember them and inform your reading of the File. Now you know what you must look for when you read the materials in the File. If you create this outline when you first find the rule, you will have already prepared the foundation for writing your memo or brief.

This outline will prove invaluable to you. It will help to ensure that you do not leave out any elements of the rule when you begin your analysis, an oversight that is quite easy to make under the extreme pressure of exam writing. Actually, I devised this technique when one of the students I worked with this past summer failed to include the first prong of the rule in his analysis of this problem. It seems that in his eagerness to write his answer, he overlooked the first part of the rule and referred only to subparts A and B in his analysis. He told me that he had trouble making sense of the problem but when he reviewed the case, he saw that it was supposed to be a two-part rule and, in his haste, erroneously thought that parts A and B were the two parts. That is when he realized the value of an outline. And, so will you.

After you have completed reading the cases and materials in the Library, you are ready to proceed to the File. Do not be surprised if you find yourself reading a fair amount of material that you believe will be irrelevant to your actual analysis of the problem. As you may recall from writing your Statement of Facts in legal memos and briefs, you need to include more than the "bare bones" in your factual statement to provide the reader with the necessary background information. Consequently, you will be faced with what seems like an avalanche of information as you proceed in the File. It will be more manageable if you take the following advice.

First, identify the parties and your client, but not just by their names-- note their legal relationship. For example, the relationship could be that of buyer and seller, teacher and student, husband and wife, and employer and employee, to name a few. By thinking of the parties in terms of their legal relationship to each other, you will be more alert to the legal significance of the facts contained in the depositions, transcripts, and correspondence. Second, refine the issue in your problem to further inform your reading. For example, in Test 1 of the February 1997, MPT, Alexander v. BTI and Bell, you might have identified the issue from the applicant memo as something like: "whether Bell was a co-participant in the warm-up practice period with Alexander so that he owed no duty to her beyond avoiding reckless and intentionally harmful behavior."

Write this issue above your outline of the rule. Your task as you read the File is to find those facts which will allow you to argue that Bell was a "co-participant." By reading the File with this issue in place, you can more easily identify the legally relevant facts from the sea of material in front of you. As you proceed to read the materials in the File, add the critical facts to the parallel set of point headings in your outline. By now you should have a clear picture of the problem and how you can resolve it.

V. Writing the Assignment

After completing your reading of the Library and File, you are ready to begin the task of writing. Quickly check the applicant memo once again to verify your task. This is critical. You must adopt the tone required by your assigned task. For example, if you are asked to write a client letter, you must adapt your writing style accordingly. This means that you recognize your reader is a layperson and if you use any legal terms in your letter (as you are sure to do), you explain such terms in a manner that an ordinary citizen would comprehend. Also, you will want your assignment to resemble a letter so you will include a mock letterhead and begin something like the following which is based on Test 1 of the July 1997, MPT, In re Kiddie-Gym Systems, Inc.:

Jerome A. Martin, President

Kiddie-Gym Systems, Inc.

4722 Industrial Way

Bradley Center, FN 33087

RE: Playground Equipment at Bradley Center Shopping Mall

Dear Mr. Martin,

As promised in our meeting of July 29, 1997, I have reviewed your file and the applicable law and am prepared to give you the firm's opinion with respect to the issues we discussed.

The first issue we discussed is whether your company, KGS, or Cornet bears the risk of loss for the playground equipment destroyed in the fire at Cornet's Bradley Center Shopping Mall. It is our opinion that Cornet would be held responsible for the risk of loss for the playground equipment given that it was destroyed by fire after installation had been timely completed and there was no contrary provision in your contract.

Similarly, if you are asked to write an objective memorandum of law, you will assume a neutral tone and carefully, objectively evaluate the facts in light of the applicable law. Alternatively, if you are asked to write a legal brief or any form of argument, you will adopt the tone of an advocate and use forceful and persuasive language.

To assist you in this effort and ensure that you are clear as to what the bar examiners expect from your response, they include a memo in your packet that gives specific guidelines in writing your assignment. There are guidelines for opinion letters, persuasive briefs, memorandums, etc. Each memo will tell you exactly what to include (and sometimes what not to include) in your paper. Be sure to follow these guidelines to the letter. An important part of your preparation for the MPT is to read these memos now and be completely familiar with them so that on test day you need spend only a few precious moments reviewing them before proceeding.

Sometimes you will be asked to write a Statement of Facts in addition to a persuasive brief. The memo will advise you when this is required and when it is not. Check this very carefully. You do not want to leave out a section if it is requested and, conversely, you do not want to waste valuable time if it is not. If you are required to include a Statement of Facts, be sure to include citations to the Record. The citation need be no more than "(R.6)" at the end of the sentence containing the relevant fact. But once again, you have demonstrated to the grader that you are aware of the need to cite to authority and familiar with the proper form of legal documentation.

A. Know These Specifics, if the Directions Ask to Provide Them

1. Persuasive Point Headings

Perhaps the most challenging and difficult task for candidates is when they are asked to include persuasive point headings in their argument. Most students have not had the opportunity or the need to write point headings since their first year of law school in their appellate briefs. And if you are like most students, you struggled through it and promptly forget about it. Unfortunately, commercial bar preparation courses are not going to teach you how to do this because there is not time and quite simply, it is not their job. Still, you have the opportunity to rack up considerable points with just a few sentences. Also, bar examiners are inclined to look more favorably upon a paper that immediately sets forth the proper tone and may be disposed to view your entire paper in a favorable light.

The key to writing an effective point heading is simple: state the legal conclusion you want the court to read and the factual basis on which it can do so. The following point headings are illustrations based on Test 2 of the July 1997, MPT, State v. Devine. They correspond to the two issues you need to address in the brief:

I. DETECTIVE RIPKA'S TESTIMONY THAT HE OBSERVED THE DEFENDANT SELLING WHAT APPEARED TO BE COCAINE TWO DAYS BEFORE THE DEFENDANT'S ARREST FOR COCAINE POSSESSION IS RELEVANT BECAUSE IT SHOWS THE DEFENDANT'S STATE OF MIND.

II. OFFICER FUSCO'S TESTIMONY AS TO THE DEFENDANT'S PRIOR CONVICTION FOR THE POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE BUT EIGHTEEN MONTHS AGO AND RELEASE FROM JAIL JUST SIX MONTHS AGO SHOULD BE ADMISSIBLE TO SHOW INTENT.

Whether you include sub-points is dependent on the nature of your problem and the applicable law. Remember, the purpose of point headings is to provide the reader with an outline and summary of your argument. Each point heading or sub- heading is written as a conclusory statement that combines the law with the relevant facts. It should be a coherent, logical, and persuasive thesis sentence. Do not state abstract principles of law. Do not write objective, neutral statements. If your adversary would agree with your statement, then you haven't written it right. The good news is that if you practice writing point headings now as you prepare from the practice MPTs, they will not be much of an obstacle on test day.

2. Writing Case Summaries

Another important skill to review and practice before test day is writing case summaries. This is where you reduce a case to its core facts, holding, and reasoning. Typically, you have not written case analyses for your law school exams and unless you have had the opportunity to write a paper or worked on one of your school's journals, chances are that your only exposure to writing such summaries was in your first year legal writing class. Your goal on the MPT, however, is not to write a case brief or even a lengthy analysis but to concisely state the holding and facts of the Library case and then compare that case to the facts of your case.

When working with the Library, the most common error is to include long passages and quotations from the cases in your text. Do not do this! It adds nothing to your legal argument (and no points) but adds tremendously to your writing time. Instead, write something like this: "In Milford v. State, the court found that evidence of an offense committed by the defendant but two days before the current one was so linked in time and circumstances as to show state of mind that it was admissible." Here, in one sentence, you have provided the holding in the case and the factual basis the court relied upon to reach that decision.

3. Using Case Analysis

Equally important is to give adequate treatment to the cases in the Library. The bar examiners expect you to apply the rule from these cases to the specific facts in your case. For example, in Test 1 of the July 1997, MPT, In re Kiddie- Gym Systems, Inc., where you are asked to write a client letter explaining a client's position in light of certain events, you might consider statements like the following:

In Hughes v. Al Green, Inc., the court of appeals held that title is relevant only if the parties provide that risk of loss depends upon who holds the title. Therefore, unless the contract specifically provides that risk of loss depends upon who actually holds title, it is irrelevant where title resides. In our case, the specific act of delivering and installing the playground system passed the risk of loss to Cornet and it does not matter that the contract provision did not convey title until some future event.

Additionally, you must provide more than a superficial analysis. Do not hesitate to develop your argument by synthesizing the applicable law and the facts from your case:

Case law in this jurisdiction supports the claim that a "material alteration" is one that would cause undue surprise or hardship if made part of the agreement without the express awareness by the other party. Album Graphics, Inc. v. Craig Adhesive Co. While this case referred to a manufacturer's unilateral disclaimer of basic warranties as resulting in "surprise or hardship," a sudden price increase of 10% would similarly cause surprise and hardship. Indeed, you have explained that this additional $2500 would cause you a substantial financial hardship in that KGS stands to barely break even on this deal and might even lose money on it. Further, you mentioned that had you been informed of such a charge, you could easily have made arrangement to pick up the system with your own driver at no additional expense. Second, we could insist that the price term in our purchase order specifying the price as "all-inclusive" was an effective notification of objection to any changes in the price term and that Poly-Cast's adding to the price of the units by imposing shipping charges amounting to an additional 10% was known to be objectionable.

Unlike the essay portion of the New York State bar exam where sample responses to the essays have been released for your review, the MPT does not provide sample answers from previous exams. Instead, the MPTs work with point sheets and grading guidelines where the main issues and facts are identified. New York has chosen to provide model responses for the MPT just as it does for its essay questions. While the point sheets are very helpful in identifying the issues you need to address in your answer and their corresponding point allocation, the point sheets do not provide the words themselves. And for many students, the overriding concern is just how to get started: how to write the opening sentence, the point headings, and the case summaries.

VI. Success Equals Practice

Once again, the key to your success will be practice. Now that you know what is expected of you, go back to your first year legal brief and review your professor's comments. Strangely enough, it will come back to you quickly. After all, legal writing is essentially the same whether you are writing an exam, essay or a legal memorandum. You are solving a problem by applying the relevant law to the facts. In one way or another, it is always IRAC. You identify the issue, state the rule, and provide analysis through application of the facts. You know how to do this. You just have to adapt to a somewhat different format. Your goal during practice sessions, therefore, is to spend this time reacquainting yourself with the mechanics of legal writing and the various forms of legal expression so that you do not do waste time on test day familiarizing yourself with such fundamentals.

A. Time is of the Essence

While time allocation is the last topic to be discussed, it may well be the most important one. Clearly, you must complete the assignment to maximize the points you receive. The bar examiners suggest that you allot forty-five minutes to reading the materials and forty-five minutes to organizing and writing your response. This is sound advice. Moreover, if you follow the suggestions outlined in this Article, you will be organizing your response while you are reading and digesting the materials, thereby maximizing your productivity. Of course, you can have no real idea how long any of this will take unless and until you have done it. Therefore, after you have read through one or two of the MPTs to get a sense of what they are all about, select another one and just read the materials, practicing the techniques you have just learned. Note how long it takes you to do this. This is your baseline reading time. Then, proceed to writing the response. Once again, time yourself. This is your baseline writing time. Do not be surprised or disheartened if it seems to take several hours to get through the materials. This is normal the first time you approach new material. Still, the experience will be somewhat different for everyone. Some read faster than others; others have difficulty writing. You need to learn how long it takes you to perform each of these tasks. Once you have established your reading and writing baselines, you can concentrate on improving your time. Learning how to allocate your time is a challenging but not insurmountable task. You can do it with practice.

VII. Conclusion

Hopefully, this discussion has demystified the MPT for you and at the same time provided you with a solid work plan to follow as you prepare for the bar exam. As in any venture, the key to success is planning and practice. If you seize the opportunity to practice from previous MPTs, you will be in a most favorable position on test day. Good luck.

[a1]. Professor Darrow-Kleinhaus is currently an Associate Professor of Legal Methods at Touro College, Jacob D. Fuchsberg Law Center where she teaches legal writing, research, and analysis.