The Multistate Performance Test (MPT)

1. The Multistate Performance Test (MPT)

2. MPT Basics • The performance test/longer essay aspect of the Bar • Administered the first day of the bar exam (on the last Tuesday before the last Wednesday in February and the last Tuesday before the last Wednesday in July each year) • “The MPT is designed to test the examinee’s ability to use fundamental lawyering skills in a realistic situation. Each test evaluates an examinee’s ability to complete a task that a beginning lawyer should be able to accomplish.”

3. MPT Jurisdictions • Alabama • Alaska • Arizona • Arkansas • Colorado • Connecticut (February 2014) • Delaware • District of Columbia • Georgia • Hawaii • Idaho • Illinois • Iowa • Maine • Maryland • Minnesota • Mississippi • Missouri • Montana • Nebraska • Nevada • New Hampshire • New Mexico • New York • North Dakota • Ohio • Oregon • Rhode Island • South Dakota • Tennessee • Texas • Utah • Vermont • Washington (July 2013) • West Virginia • Wisconsin • Wyoming (July 2013)

4. The MPT Test • The NCBE offers 2, 90-minute MPT items per administration. A jurisdiction may select to use one or both items as part of its exam. UBE jurisdictions use both MPTs. • The MPT is a closed universe test. Everything you need to complete the task is given to you. • The materials for each MPT include a FILE and a LIBRARY: • The FILE: consists of source documents containing all the facts of the case—the specific assignment is described here in a memorandum (may include: transcript of interviews, client documents, contracts, newspaper articles, medical records, police reports, lawyer’s notes, etc.) • The LIBRARY: may contain cases, statutes regulations or rules that may or may not be relevant and useful in completing the assigned lawyering task (all necessary substantive law included here)

5. MPT Skills Being Tested • Problem Solving: identify and diagnose the problem, generate alternative solutions, develop and implement a plan. • Legal Analysis and Reasoning: identify and formulate legal issues, identify relevant legal rules, formulate relevant theories, evaluate theories, criticize and synthesize arguments. • Factual Analysis: identify relevant facts, plan a factual investigation, organize facts, evaluate the information gathered and whether more is needed. • Communication: assess perspective of recipient, organize and express ideas clearly and logically. • Organization and Management of a Legal Task: allocate time and resources efficiently, complete tasks within time constraint. • Recognizing and Resolving Ethical Dilemmas: recognize ethical standards, recognize and resolve ethical dilemmas.

6. MPT Timing and Strategy Strategy Timing Spend 45 minutes on STEP 1 - STEP 4 Spend 45 minutes actually writing • STEP 1: Read the Supervising Attorney’s Memo and Outline • STEP 2: Read the File and Update the Outline • STEP 3: Read the Library and Update the Outline • STEP 4: Complete the Outline • STEP 5: Write the Requested Assignment

7. The MPT Test Product • Examinees might be asked to complete any of the following: • A memorandum to a supervising attorney • A letter to a client • A persuasive brief or memorandum • A statement of facts • A contract provision or analysis of a contract provision • A will or analysis of a will • A proposal for settlement or agreement • A discovery plan • A witness examination plan • A counseling plan • A closing argument

8. Past MPT Work Product

9. A Memorandum MEMORANDUM To: Nevada State Bar From: Examinee RE: State of Franklin v. Soper Date: May 15, 2013 INTRODUCTION (Two or three sentences setting out the task you’ll complete and briefly stating your conclusions. Introduce legal authority as well) DISCUSSION (Divide this section into two or three sections, following the directions in the task memo. Each section will have a topic heading using law and facts—usually stated as a conclusion) CONCLUSION (Summarize what you have accomplished and reinforce conclusions)

10. A Persuasive Brief Franklin District Court Franklin v. Soper STATEMENT OF JURISDICTIONAL BASIS (state which court the action is before and show how requirements for jurisdiction have been established) STATEMENT OF FACTS (use the facts to persuade the court that they support your client’s position) ARGUMENT (use headings that clearly summarize the reasons the court should adopt your position and follow the CREAC format) CONCLUSION

11. A Letter to a Client May 15, 2013 John Jones Jones and Whittier 5 West Irving Park Chicago, Illinois 60613 Dear Mr. Jones, The first sentence/paragraph should introduce the sender and explain the purpose of the letter. Each section of the letter may have a heading. The conclusion usually suggests the need for further action. Your Truly, 2013 Bar Examinee

12. Analysis of a Contract, Will or Trust • Introduction • Explain the nature of your assignment • Identify client goals • Explain any other assumptions you have made about the nature of the assignment • Clause-by-Clause Analysis • Proceed through the document clause by clause • Do not mention acceptable clauses, only unaccaptable ones that need more explanation or modified language • Expressly state the wording that needs modification and explain why changes are needed • Always suggest specific language to improve the document • References to the File and Library should be included to support your revisions • Identify technical problems

13. A Proposal for Settlement or Agreement • Introduction • Identify the purpose of the agreement in light of client’s goals. • Use a disclaimer (see notes) • Parties • Identify parties entering the proposal (including address or other definitive identification provided) • Body of Proposal or Agreement • Use WHEREAS clauses to set out the context of the settlement and the relevant facts • Include an acknowledgement of the consideration clause • The part of the agreement containing substance should begin, “NOW, THEREFORE:” followed by: • Conditions precedent • Conditions subsequent • Actual points of the agreement • Identification of governing law • Signatures • Provide spaces and indicate whether they need to be witnessed or notarized • Dismissal of Action • Indicate the event or events that must occur before plaintiff will agree to voluntarily dismiss the complaint with prejudice

14. A Discovery Plan • Introduction • Briefly identify how the discovery plan will be organized • Use elements of the crime/cause of action, principles of law, anticipated defenses, or legal theory to guide your organization • Body • Divide into section under each count charged in the complaint • Be specific as to names and locations • For each factual proposition identify the individuals that should be subject to discovery and the discovery methods that will be used • Do not include in your plan information the File suggests is already in your possession • The cases and statutes will help you understand what facts you need to prove the elements of the crime

15. A Witness Examination Plan A witness examination plan may be organized by topic or by witness. • Example of organization by Topic • State Topic • State Questions to be Asked • State Objections Anticipated • State Response • State Likely Ruling on Objections

16. Closing Argument • Introduction • Thank the jury for their time and attention during the trial • Body: organize around the jury instructions • State clearly the ultimate fact jurors must fin in order for you to prevail • Organize the evidence in support of the ultimate facts • Incorporate relevant legal principles or jury instructions into your argument • Discuss the sufficiency of evidence and credibility of witnesses • Draw reasonable inferences from the evidence to support your position • Anticipate opposing counsel’s arguments • Refer to policy considerations that may help your position • Never hold back any argument (you don’t have a rebuttal on the MPT)

17. Sample MPT Question 90 minutes allotted