The Multistate Performance Test

1. The Multistate Performance Test Ten Tips for Success January 17, 2005

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. • It is a 90-minute exercise. 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. • 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 the MPT Important? • The MPT is a test of your ability to perform simple lawyering tasks in a timed environment. • It is different from the “standard” essay questions on the Multistate Essay Examination. It requires a different strategy to succeed.

4. What “skills” are tested on the MPT? • Look at the Instruction page in your materials, especially the first and last paragraphs. What are the examiners testing? • They are not testing your ability to remember legal principles—that is tested on the MBE and MEE. • On the MPT, they are testing:

5. What “skills” are tested on the MPT? • “[Y]our ability to handle a select number of legal authorities in the context of a factual problem involving a client.” • “[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.

6. 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 facts and distinguish the relevant facts from the irrelevant ones? • Can you read a set of legal authorities and synthesize general rules? • Can you apply those legal rules to the facts in an intelligent way to achieve the goals directed by your supervisor?

7. What are the components 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, regulations, etc.) that provide the legal rules necessary for completion of that task.

8. The “File” • The most important document in every MPT file is the first one—it is the “assigning memo.” It tells you what your task is.

9. Tip #1 • Read carefully the instructions that you are given in the assigning memorandum. • Most MPT problems are set in the jurisdiction of “Franklin.” • If a statute (or rule) is involved, look for statements like: “The Franklin Commercial Code is identical to the UCC” or “The Franklin Code of Evidence is identical to the Federal Rules of Evidence.”

10. Tip #2 • Look at the “call” of the assigning memorandum: make sure you understand what 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; etc. • Persuasive documents: brief, complaint, jury instructions, memo in support of a motion to dismiss, etc.

11. Tip #3 • 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 how the 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.

12. Tip #3 • The “format” document is there for a reason—read it and pay attention to it.

13. Tip #3 • 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 Professor Slack told you, or a complaint in the format Professor Beyler told you. • Do you think Professor Liemer, or Professor Slack, or Professor Beyler will be grading your MPT? • Do what the assigning memo and format document tell you to do.

14. Tip #3 • Once you have determined that it is an objective or persuasive document, write the document with the proper tone. • To determine the “tone” ask yourself who is the “audience” for this document? • Objective: another lawyer (a partner in your firm); the client; a third party? • Persuasive: a judge, a jury, an administrative agency, a lawyer for an adverse party?

15. Tip #4 DON’T PANIC DON’T PANIC

16. 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 complete may be new to you. • But the SKILLS you need are skills you already have.

17. Tip #4 • Remember, you are competing with lots of other graduates, most of whom probably have less experience at drafting legal documents than you do. • The skills we looked at before (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.

18. Tip #4 • The best way to avoid panic is to write out answers to several MPTs over the next few weeks. • Each weekend, set aside an hour and a half and write one. • Choose ½ persuasive documents and ½ objective documents. • Choose MPTs that require you to write documents you have never written before. • Do a minimum of four of these during the next few weeks.

19. Tip #5 • “Think Like a Lawyer” • What does this mean? • Look at the jurisdiction of the cases in the Library—are they from Franklin (mandatory) or some other state (persuasive). • Is one case from the state supreme court and one from an appellate court? • Is one case later in time from the same court? • Embedded authorities—e.g., an appellate court case that cites a supreme court case for a proposition of law. • Remember that not all the authorities may be relevant.

20. Tip #5 • Read the instructions first. Then the assigning memo. Then the entire File and Library. • Then, go back to the assigning memo, carefully re-read the call of the memo and the format document. • Then, sort out the relevant and irrelevant fact, in light of the rules of law in the Library, and then begin to write.

21. Tip #6 • DISCUSS THE FACTS. • Don’t just recite the holdings of the cases—take those holdings and tell the reader how those holdings would 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.

22. Tip #6 • Keep in mind that the people who are 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.

23. Tip #6 • The MPT does NOT test your ability to remember legal rules. • All the legal rules you need to know are contained in the Library itself. • The MPT tests your SKILLS, particularly your ability to synthesize legal rules and apply them to the facts.

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 • Avoid preconceived ideas. • Don’t assume that every comment in every authority in the Library is relevant to answer your problems. • Don’t try to invent issues that are not present in the problem.

26. Tip #9 WRITE LEGIBLY

27. Tip #10 • Practice. Practice. Practice. • As noted earlier, do several different 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, etc.

28. Tip #10 • Most importantly—look at the MPT as an opportunity. • Our students ought to be getting 4s and 5s 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.