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.
