Bar Passage Seminar Program

1. Bar Passage Seminar Program BYU Law School Seminar #3

2. Typical Bar Exam: Review • 2 days, 6-7 hours of testing per day • Composed of: • MBE (multiple choice) • MEE (short essay) • MPT (longer essay/work product) • These “national” tests are written by the National Conference of Bar Examiners (NCBE) • Many state bar organizations write their own essays or performance tests (and therefore don’t use the NCBE provided MEE or MPT) • All states but Louisiana use the NCBE provided MBE • Some states require 3 days of testing

3. MBE Review • Contains 200 multiple choice questions, 190 of which are scored • 100 questions in 3 hours • 1.8 minutes per question • 33 questions per hour • Subject areas: Constitutional Law (31), Contracts (33), Criminal Law and Procedure (31), Evidence (31), Real Property (31), and Torts (33). • Administered in all jurisdictions except Louisiana

4. The Multistate Essay Exam (MEE)

5. MEE Basics The short 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) “Purpose is to test examinee’s ability to (1) identify legal issues raised by a hypothetical factual situation; (2) separate material which is relevant from that which is not; (3) present a reasoned analysis of the relevant issues in a clear, concise, and well-organized composition; and (4) demonstrate an understanding of the fundamental legal principles relevant to the probable solution of the issues raised by the factual situation.”

6. MEE Subjects • Areas of law that may be covered on the MEE include: • Business Associations (Agency, Partnership, Corporations, LLCs) • Conflict of Laws • Constitutional Law • Contracts • Criminal Law and Procedure • Evidence • Family Law • Federal Civil Procedure • Real Property • Torts • Trusts and Estates • UCC (Negotiable Instruments, Secured Transactions, Bank Deposits and Collections) • Visit http://www.ncbex.org/assets/media_files/Information-Booklets/MEEIB2013SMO.pdf for subject matter outlines

7. MEE Jurisdictions Alabama Arizona Arkansas Colorado Connecticut District of Columbia Hawaii Idaho Illinois Iowa Kentucky Mississippi Missouri Montana Nebraska New Hampshire New Mexico North Dakota Oregon Rhode Island South Dakota Utah Washington (July 2013) West Virginia Wisconsin Wyoming

8. The MEE Test The NCBE offers 9, 30-minute MEE questions per administration and jurisdictions may select which questions to use Each question provides a hypothetical factual scenario, usually with a very specified call of the question Examinees are allotted 30 minutes to answer each question Usually all MEE essays are given in the same testing session, which lasts 3-4 hours in most states (depending on the number of essays) Some questions may include issues in more than one area of law, combined

9. MEE Scoring • What graders are looking for: • Identification of the legal issues in the statement of facts (issue spotting) • Applying fundamental legal principles to the facts (rule statement) • A reasoned analysis of the issues (applying facts to rules) • A logical solution/conclusion • What graders are not looking for: • A wide knowledge of legal rules only tangentially related to the question • An impressively verbose and very thoughtful essay • Looking beyond the obvious issues for more complex and interesting issues

10. How to Write a Successful Essay Answer General Tips The Method 3 Step Process Read, read, read Organize and Analyze Write • Know the law • Try to sound like a lawyer • Slow down and write a complete answer • Use a logical essay structure (use IRAC) • Make your essay easy to read and grade • Finish within the time allowed and STOP after 30 minutes. • Don’t discuss what you’re told not to discuss

11. Step 1: Read • Read the call of the question first • Identify the area of law that’s being tested so you know what to look for in the fact pattern • Start an outline based on the call of the question (i.e. 2 parts, or 3 parts, etc.) • Read the fact pattern very actively • Make notes, circle names, draw out issues, etc. • First reading will always be the most productive • Assume all facts are there for a reason • Read the call of the question for a second time • Make sure you fully understand what you’re being asked to do

12. Sample MEE Question: Constitutional Law Congress recently enacted the Violence at Work Act (the Act). Title I of the Act provides that an employee who has been injured in the workplace by the violent act of a coworker has a cause of action for damages against that co-worker. Title II of the Act imposes several duties on employers subject to the Act and creates a cause of action against employers who do not fulfill those duties. Section 201 provides that all employers, “including all States, their agencies and subdivisions,” who have more than 50 employees are subject to the Act. Section 202 requires employers subject to the Act to (i) train employees on certain methods of preventing and responding to workplace violence, (ii) conduct criminal background checks on job applicants, and (iii) establish a hotline to report workplace violence. Section 203 provides that if an employer subject to the Act does not fulfill the duties imposed by Section 202, an employee who has been injured by the violent act of a fellow employee may recover damages from the employer for the harm resulting from a violent act. Section 204 provides that any action brought pursuant to Section 203 may be brought in federal or state court and that “if brought in federal court against a State, its agencies or subdivisions, any defense of immunity under the Eleventh Amendment to the US Constitution is abrogated.” The House and Senate committee reports on the Act note that Congress passed the Act under its power to regulate interstate commerce. To support its use of that Power, Congress found that acts of workplace violence directly interfere with economic activity by causing damage to business property, injury to workers, and lost work time due to the violent acts and their aftermath. The House report estimated that total interstate economic activity is diminished by $5 to $10 billion per year as a result of losses associated with workplace violence.

13. Sample MEE Question: Constitutional Law After the Act’s effective date, an employee of a state agency was injured in the workplace by the violent act of a disgruntled coworker. The state agency, which has over 100 employees, conceded that it had not implemented the measures required by Section 202 of the Act. Accordingly, the employee has sued the state agency in United States District Court to recover damages for the harm caused by the act of workplace violence. The state agency has moved to dismiss the lawsuit on three grounds (1) Congress did not have power to enact the Act, (2) Congress did not have power to apply the Act to state agencies, and (3) the Eleventh Amendment bars the employee’s lawsuit. Is the Act a valid exercise of Congress’s power to regulate interstate commerce? Explain. Assuming that the Act is a valid exercise of Congress’s power, may the Act constitutionally be applied to state agencies as employers? Explain. Does the Eleventh Amendment bar the employee’s lawsuit in federal court against the state agency? Explain.

14. Sample MEE Question: Wills and Estates and Conflict of Laws Zach died in a domiciliary of State A. At Zach’s death, he owned a house located in State A. Zach also owned a farm located in State B and had a savings account at a bank in State B. Zach left a handwritten document containing instructions for the disposition of his assets. The only words on the document were the following: I, Zach, being of sound and disposing mind, leave my entire estate to my alma mater, University. I appoint Bank as executor of my estate. Zach’s wife predeceased him. Zach was survived by three children, Alex, Brian, and Carrie. Alex was the biological child of Zach and his deceased wife. Brian was the biological child of Zach’s deceased wife and her first husband, but Zach adopted Brian when Brian was 12. Carrie was the biological child of Zach and a woman whom Zach never married. Zach’s paternity of Carrie was adjudicated during Zach’s lifetime. State A provides that a holographic will “entirely handwritten and signed at the end by the testator” is valid. State A law also provides that if a decedent dies intestate and leaves no surviving spouse, the decedent’s estate passes in equal shares to the decedent’s “surviving children.” The phrase “surviving children” is defined to exclude “nonmarital children.” There are no other relevant statutes in State A. State B law provides that (1) the will of a nonresident that bequeaths real property located in State B must comply with the law of State B; (2) a will is invalid unless it was signed by the testator and two witnesses; and (3) the estate of an intestate decedent who leaves no surviving spouse passes to the decedent’s “biological and adopted children, in equal shares.” There are no other relevant statutes in State B. How should Zach’s three assets be distributed? Explain.

15. Step 2: Organize and Analyze • Decide how to best organize your analysis • Look to the call of the question first, it will often tell you to discuss certain points (just do it in that order) • With a general call of the question there are 3 alternative methods of organization • Parties • Events • Theories of law • Use headings! • Make sure you analyze (apply the rule to the issues) • Have a checklist approach for each area of law • Not every element will be useful on an essay—leave those elements out!

16. Step 3: Write • If your outline included it, make sure it ends up in your essay • Use IRAC: Issue, Rule, Analysis, Conclusion • Issue and rule statements should be short and concise • Focus on the analysis: applying the rule to the facts • The conclusion is the least important part, but you should always include one • Never assume facts that aren’t in the fact statement • Demonstrate your ability to reason and analyze • Clarity and conciseness are important (as long as your answer is complete)

17. MEE Timing • 30 minutes allotted per question • 10-15 minutes should be spent reading, outlining, and analyzing • The remaining 15-20 minutes should be spent carefully writing • Keep yourself on track with your timing and move on when your 30 minutes is up, or you’ll never get to all the essay questions.

18. Sample MEE Question 30 minutes allotted

19. Sample MEE Question: Practice Defendant and Friend were on a hunting trip together. One evening, while watching television in their hunting cabin, Defendant decided to scare Friend, who had fallen asleep in his chair. Defendant loaded his rifle and aimed it at a lamp that was on a table just behind the chair in which Friend was sleeping. Just as Defendant pulled the trigger to shoot the lamp, Friend suddenly sat up and moved into the line of fire. Defendant’s bullet hit Friend in the shoulder and seriously wounded him. Defendant loaded Friend into his car and sped off toward the nearest hospital, which was 15 minutes away. En route, Defendant hit a pothole, lost control of his car, and collided with a telephone pole. Defendant was seriously injured, and Friend suffered further injuries. The accident occurred on a lightly traveled country road, and no other vehicle passed by for 45 minutes. By the time help arrived, Friend was dead. An autopsy established that Friend bled to death as a result of the combined impact of the gunshot wound and the injuries suffered in the car crash. The coroner concluded that the gunshot wound alone would not have been fatal had Friend received medical treatment within a half hour of the shooting. Murder is defined as “a killing with malice aforethought.” In this jurisdiction, second-degree murder is “all murder that is not deliberate or premeditated.” Defendant has been charged with second-degree murder on account of his shooting Friend and Friend’s subsequent death. Is Defendant guilty of second-degree murder? Explain.

20. Next Seminar… The MPT basics, subjects, jurisdictions, scoring, examples, and practice