Wow. There is a part of the Bar Exam where you actually do not have to memorize anything. It’s called the Multistate Performance Test, or MPT There’s no rules, elements, etc. to cram into your head. You are just given a “task” and have to do it within 90 minutes. Twice. That can’t be too hard, right?
Not so fast.
While you don’t have to memorize law for this part of the exam, don’t be fooled. This is a prime opportunity to grab points! If you don’t do so well on the MBE or MEE, you can make up critical points here, and still pass the overall exam. Don’t blow it because you underestimated the value of the MPT.
On the MPT, the general test instructions will always be the same. Learn them before the exam. You do not want to waste valuable time during the test trying to make sure you understand the general instructions.
Then you are given the task you must complete. The issues will be pretty well spelled out in the task. Pay attention. The I in IRAC is pretty much given to you. Now your job is to find the facts that relate to the issues at hand. Then the law that relates to the issues. I hear you thinking, “That’s legal writing 101!” Well, yes it is. But under the pressure cooker of the Bar exam many people muddy the waters.
Here’s the problem. If you haven’t worked hard enough during Bar prep on the MPT, you can get lost in the volume of information given to you in the ‘library’ of the question. There will be a lot of material there. You have to know how to best use it, or you may end up spending 60 minutes just reading through it. Big mistake.
Time Management: Be Strategic
Don’t get bogged down reading every word of the library materials from start to finish. Instead, be strategic.
You know the issues. They are in the task. Now skim the entire library once. The operative word here is SKIM. You are simply skimming the materials to familiarize yourself with what’s available. You may be given statutes, case law, depositions, or any type of information in the packet. Skimming the materials after reading the task helps you do two things. Familiarize yourself with what is available to use, and find the meat.
Find the Law
As an example, let’s assume that the issue is the Principal Theory from criminal law. In the packet you are given jury instructions that read:
JURY INSTRUCTION ON PRINCIPALS
If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if they had done all the things the other person or persons did if:
- the defendant had a conscious intent that the criminal act be done and
- the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually [commit] [attempt to commit] the crime.
- To be a principal, the defendant does not have to be present when the crime is [committed] [or] [attempted].
This is a good beginning, but there is probably going to be a good deal of additional rules found in the library of materials. Look for anything that would be applicable law.
When you come across a relevant rule: highlight it. Or jot it down on scrap paper. It is the skeleton upon which you build your analysis. Get all the relevant rules jotted down quickly. This enables you to move on to the next step.
Hunt for Relevant Facts
You are acting as a lawyer here, so think like one. As a lawyer, you will continually be put into situations where you have to sort through tons of material and find the documents, rules, and facts that are relevant to the issues.
Quickly re-read the task to be sure it’s in your head firmly. Now go over the materials a second time in more detail. You do not have to read every single word. You are a hunter, and you are on a mission. That mission is to find every fact that relates to the rules you jotted down in step one. Use highlighters or use your scrap paper to jot down the facts you find. Group them with the rules they tend to prove/disprove on your scrap paper. You are gathering information.
In the example of the Principal Theory, you would probably have depositions from witnesses, as well as a possible statement from the defendant himself. You will search these documents for any facts that tend to show:
- That the defendant knew the criminal act would be done
- That he/she wanted the act to take place
- That he said something, or did something that possibly involved him in the criminal enterprise
- That the acts he did, or the words he said, actually encouraged another person to commit the crime.
And to be thorough, of course, you are also looking for facts that tend to show the opposite. Depending on the call of the question, you could be looking for facts that tend to prove that he did not know or intend any of the above.
As you can see, there is much to argue here in your analysis! Much of the terminology used in the jury instruction is subject to interpretation. For instance, if you are given the fact that the defendant drove his co-defendant to the scene of the crime, is that proof that he knew of the crime his friend was about to commit? Some would say yes, some would say no. Look to other acts the defendant did, or other words he said, that tend to prove or disprove his intent.
And maybe the case law that is included clarifies this question of intent. Likely, it will. Gather all the facts you can that relate to the question of intent, and this is the beginning of your analysis.
Then move on down the line. Use every word of every element. Find the facts that illuminate the elements one by one. Put them all down on scrap paper to create a visual map of your analysis. This process should take you approximately half of the allotted time period.
Then it’s time to start writing. In 45 minutes, you should have your map or outline. If you’re working from a well thought-out map, the writing should flow easily. Make it easily readable for the graders! They are NOT going to search through muddied writing to try to find the points you need. Make it obvious. Use headers and subheaders. Spell it out.
If you practice doing this, then doing it some more…by the time of the exam, it will be second nature. Go grab those needed points on your MPT!
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