The Multistate Performance Test

1. The Multistate Performance Test Ten Tips for Success July 2, 2007

2. What is the Multistate Performance Test (“MPT”)? • In Illinois, the MPT is administered in the morning of the first day, right after the three “Illinois” essay questions. • The MPT is a 90-minute exercise. • In Illinois, it counts for 5 points, but the score is multiplied by 1.5, so there is a maximum of 7.5 points for the MPT. With the multiplier, this can be as many as 20 points toward the 264 you need to pass. • In Missouri, essay questions count for 6 points and the MPT is counted for 12 points. Plus, in Missouri, the essays (and MPT) count for 60 % of your score. So, the MPT in Missouri equals 15% of the points needed to pass. • Building up a “cushion” of points on the MPT thus makes it easier to absorb a 1 or a 2 on some essay subject.

3. Why is preparing for the MPT important? • The MPT is different from the “standard” essay questions on the Multistate Essay Examination or the Illinois Essay Examination. It requires a different strategy to succeed. • The MPT is a test of your lawyering skills, not a test of your knowledge of legal principles.

4. What “skills” are tested on the MPT? • Look at the Instruction page in your materials, especially the first paragraph. What are the examiners testing? • “[y]our ability to handle a select number of legal authorities in the context of a factual problem involving a client.”

5. What “skills” are tested on the MPT? • In other words, as name suggests, they are testing whether you can “perform” basic legal skills: • Can you read a set of documents and distinguish the relevant facts from the irrelevant facts? • Can you read a set of legal authorities and synthesize general legal rules from those authorities? • Can you apply those general legal rules to the relevant facts in an intelligent way to achieve the goals directed by your supervisor?

6. What “skills” are NOT tested on the MPT? • They are NOT testing your ability to remember legal principles—that is tested on the MBE and MEE. • They are NOT testing your ability to “spot legal issues”—that is also tested on the MBE and MEE.

7. How is the MPT graded? • The last paragraph of the Instructions tells you what the graders are evaluating: • “[Y]our responsiveness to instructions regarding the task you are to complete given to you in the first memorandum in the File, and on the content, thoroughness, and organization of your response.”

8. What are the parts of the MPT? • Every MPT has two primary parts: a “File” and a “Library” • The “File” consists of documents that will provide you with INSTRUCTIONS for the task at hand and other documents that provide the FACTS you need to know to complete that task. • The “Library” consists of legal authorities (statutes, cases, treatises, regulations, etc.) that provide the LEGAL RULES necessary to complete that task.

9. The “File” • The most important document in every MPT “File” is the first one—it is the “assigning memo.” It specifies the document that you are asked to write and the issues you are to address.

10. Tip #1 • READ CAREFULLY THE INSTRUCTIONS YOU ARE GIVEN IN THE ASSIGNING MEMORANDUM. • It tells you the nature of the document you are assigned to write. • It tells you the issues that you are to address.

11. Tip #2 • LOOK AT THE “CALL” OF THE ASSIGNING MEMORANDUM: MAKE SURE YOU UNDERSTAND THE BASIC NATURE OF THE DOCUMENT YOU ARE BEING ASKED TO WRITE. • Two general classes of documents: • Objective documents: a memo to the partner; a letter to the client; a fact investigation plan; a pre-negotiation planning memo, etc. • Persuasive documents: brief, complaint, closing agrument, memo in support of a motion to dismiss, an arbitration statement, etc.

12. Tip #2 • What happens if you are asked to draft a document you have never drafted before? • Don’t panic. • Almost always, there is a second document in the File (called the “format” document) that tells you the proper structure or format of the document. • It may be a court rule or statute that lays out the requirements of a persuasive document, like a complaint or motion. • It may be a law firm memo outlining how the firm wants memos, letters, fact investigation plans, etc. written.

13. Tip #2 • In recent years, the “assigning memo” itself includes “format” instructions, so there is no separate “format document.” Typically, the last paragraph of the assigning memo may contain a brief outline of the contents of the document.

14. Tip #2 • The “format” document is there for a reason—it gives you directions for how to write the document you are drafting--read it and pay attention to it. • Write the document according to the directions you are given in the assigning memo and the “format” document. • Don’t write a memo according to the format Professor Liemer told you, or a jury instruction in the format Dean Alexander told you, or a complaint in the format Professor Beyler told you. • Will Professor Liemer, or Dean Alexander, or Professor Beyler will be grading your MPT? • Do what the assigning memo and format document tell you to do.

15. Tip #3 • OUTLINE BEFORE YOU WRITE AND WRITE IN THE PROPER TONE FOR THE PROPER AUDIENCE. • You are graded on the “thoroughness and organization” of your response. Outlining your answer in advance is the key to being “thorough” and to good “organization.” • To determine the “tone” ask two questions: (1) is the document objective or persuasive?; and (2) who is the “audience” for this document—is it a law-trained person or a lay person? • Objective: another lawyer (a partner in your firm); the client? • Persuasive: a judge; a lawyer for an adverse party; a jury?

16. Tip #4 DON’T PANIC DON’T PANIC

17. Tip #4 • HOW TO AVOID PANIC: • The best way to avoid panic is to PRACTICE writing answers to several MPTs over the next few weeks. • Each weekend, set aside an hour and a half and write one MPT answer. • Choose ½ persuasive documents and ½ objective documents. • Choose MPTs that require you to write documents you have never written before. • Do at least five or six during the next few weeks.

18. Tip #4 • The odds are good that you may be asked to write a document you have never written before—a fact investigation plan, a jury instruction, a complaint before an administrative agency, etc. • The TASK you are asked to perform may be new to you. • But the SKILLS you need to perform that task are skills you have already developed.

19. Tip #4 • Remember, you are competing with lots of other graduates, most of whom probably have less experience at writing legal documents than you do. • The skills being tested (distinguishing relevant from irrelevant facts; reading and synthesizing cases and statutes; applying those cases and statutes to the facts) are all skills you have been developing since the first day of law school.

20. Tip #5 • “THINK LIKE A LAWYER” • Approach the problem methodically. • Read the assigning memo first. Then the rest of the File and the entire Library. • Then, go back to the assigning memo and carefully re-read the “call” of the assigning memo. • Then, sort out the relevant and irrelevant facts, in light of the rules of law in the Library, and outline your answer. • Then, carefully re-read the format document and write out your answer in the format required.

21. Tip #5 • “THINK LIKE A LAWYER” • When reading the authorities in the Library: • Look at the jurisdiction of the cases—are they from Franklin courts (mandatory) or a court from some other state (persuasive). • If cases are seemingly conflicting, is one case from the state supreme court and one from an appellate court or is one case later in time from the same court? • Does a later case explain an earlier case? • Look for a statute or regulation that may be interpreted by a later case. • Look for “embedded authorities”—e.g., an appellate court case that cites a supreme court case for a proposition of law. • Remember not every part of every authority in the Library is relevant to your task.

22. Tip #6 • DISCUSS THE FACTS. • Don’t just recite the holdings of the cases—take those holdings and explain to the reader how those holdings apply to the facts of the problem. • I am told that the biggest shortcoming students have on the MPT (other than not following instructions) is not discussing how the legal rules relate to the facts in the problem.

23. Tip #6 • Keep in mind that the people grading your MPTs are practicing lawyers who have clients who need advice. Clients do not pay for a list of legal abstractions and the lawyers won’t award you a passing grade if that is all you put on MPT answer.

24. Tip #7 • BE PREPARED TO DEAL WITH AN UNKNOWN SET OF FACTS AND AN UNKNOWN AREA OF THE LAW. • Remember that most rules of law are made up of “elements” or “components” and your job is to apply each of those elements to the facts in your File.

25. Tip #8 • DON’T TREAT THE MPT LIKE A LAW SCHOOL ESSAY EXAM. • Remember, the MPT is not like most law school exams. Nothing is “hidden” on the MPT—you are given the facts, the legal principles, and the issues to address. • Don’t try to invent issues that are not present in the problem. The issues you are to address are frequently spelled out in the assigning memo.

26. Tip #9 WRITE (OR TYPE) LEGIBLY

27. Tip #10 • PRACTICE. PRACTICE. PRACTICE. • Again, do at least five or six MPTs over the next few weeks. • Do some that require you to write objectively and some that require you to write persuasively. • Do some that require you to write new kinds of documents—a part of a will, a closing argument, a fact investigation plan, etc.

28. Tip #10 • Most important--look at the MPT as an opportunity. • Our graduates ought to be getting 4s and 5s (5s and 6s in Missouri) on the MPT, but too often they panic because the MPT calls for a different approach than the other essay questions on the first day.