The Civil Procedure section of the MBE is a relatively recent addition, added in February of 2015. For a lot of students, it’s a subject that was reviewed in the first year. It’s a dizzying assortment of rules, motions, and the general structure of an action from pretrial to appeal. For some folks, including myself, the dry nature of the material makes it a bit harder to remember. That means that it could take a little extra effort while studying. Here is an outline of MBE testable subjects provided by the NCBE, with civil procedure MBE topics outlined briefly below.
1. Jurisdiction and Venue / State Law in Federal Court
Before bringing an action we need to know where it can be brought, making federal subject matter jurisdiction (including federal question, diversity, and supplemental jurisdiction, as well as removal) and personal jurisdiction relevant. The various rules associated with service of process and notice of suit are also important, as well as venue, transfer, and “forum non conveniens.” You will also need to know when state law can be applicable in federal court, as well as federal common law.
2. Pretrial Procedures
This is one of the messier parts of civil procedure, at least in my opinion. You’ll need to know the concepts of preliminary injunctions and temporary restraining orders, notably their differences. You also need to know the form of a pleading, and the processes and rules of amending and supplementing a pleading. Rule 11 can make an appearance, likely in the form of a question regarding sanctions. You’ll also need to know the rules for the joinder of parties and claims, including class actions.
Additionally, you’ll need to have a grasp of the discovery (and e-discovery) process, disclosures (mandatory and otherwise), and the sanctions associated with discovery and disclosures. The end of an action at this pre-trial step is relevant as well, such as an adjudication without trial. The settling of matters in the pretrial process through pretrial conferences and orders will also be relevant.
3. Jury Trials
The right to a jury trial, rules regarding the selection and composition of a jury, and jury instructions (requests and objections) are all testable material on the MBE.
This subsection includes pre-trial motions, such as motions regarding the face of the pleadings, motions to dismiss (for varying reasons), and motions for summary judgment. Also, motions for judgment as a matter of law (directed verdicts and judgment notwithstanding the verdict) are need-to-know. Finally, post-trial motions, such as motions for relief from judgment or motions for a new trial, are important as well.
5. Verdicts and Judgments
How the case itself resolves is equally important in civil procedure. This includes defaults and dismissals, as well as the various components to a jury verdict (the different types and challenges that can be made.) Judicial findings and conclusions are also important, as well as the effect of a verdict itself, shown in the concepts of claim and issue preclusion.
6. Appealability and review
How to appeal a judgment is the last step. You will need to know rules regarding the availability of interlocutory review. The “final judgment rule” as it relates to appealability is also important. Finally, the scope of review for the judge and the jury, as far as what can be considered on appeal, is testable.
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I hope you found this summary of the testable civil procedure MBE topics useful! By the time you’ve got some studying behind you, you’ll be a wizard when it comes maneuvering through the technical rules and requirements of a legal action.
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