Sunday, February 7, 2016

Class Action Lawsuits

When working with students to prepare for Civil Procedure on the MBE, a topic that comes up frequently is class action lawsuits. This post will summarize some aspects that I believe are important to know for purposes of the MBE:

When is a class action proper?

There are some requirements here. First, the class of plaintiffs must be so numerous that joinder of all members is impracticable. In addition, there must be questions of law or fact common to the class, named parties' interests must be typical of the class, and named parties must adequately represent the interests of the absent members of the class. In addition, one of the following must be true: separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; the defendant has acted or refused to act on grounds applicable to the class, and injunctive or declaratory relief is appropriate for the class as a whole; or common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.

When should the court decide whether to certify the class?

This should be decided at an early practicable time, but a court can determine that a class action is not appropriate at any time. When the court certifies a class, the court must define the class, issues, and defenses. Further, the court must appoint class counsel who must fairly and adequately represent the class.

What effect does a class action judgement have?

All members of a class will be bound by the judgement rendered in a class action except those in a common question class action who notify the court that they do not wish to be bound. For this reason, notice to all members of a class is required in a common question class action lawsuit.

How is jurisdiction analyzed in a class action lawsuit?

In class actions founded on diversity only the citizenship of the named representatives of the class is taken into account in establishing whether the diversity requirement is satisfied. One class representative's claim generally must exceed $75,000. Class members with claims not exceeding this amount may invoke supplemental jurisdiction provided that doing so does not destroy diversity.

Must the court approve dismissal of a class action?

Yes, the court must approve dismissal or settlement. In a common question class action lawsuit, the court may provide the parties with a second opportunity to opt out.

Saturday, January 30, 2016

The Final Few Weeks

As you enter your final few weeks of preparing for the February MBE, a good resource to consult is the MBE subject matter outline created by the NCBE. Not only will reading it over ensure that you have studied all of the potential areas that might be tested in each subject, but it will also provide you with information regarding which areas might be worth reviewing more than others. When it comes to preparing for a bar exam, not all topics are created equal. This applies both to the essays and to the MBE; though it's a good idea to cover all bases, some topics because of the frequency with which they are tested require more focus.

The outline can be found @

**Note also that if you are preparing for the Multistate Essay Exam, a similar outline is found @

Thursday, January 21, 2016

MBE Essentials: Hearsay

We're getting closer now to the February exam. Below are 3 questions and answers from my book MBE Essentials to assist in understanding a very difficult legal concept, hearsay.

What constitutes a “statement” when analyzing the rule against hearsay?

A statement can be either an oral or written assertion. It can also be nonverbal conduct intended as an assertion (for example, a nod of the head to indicate agreement).

What is meant by “truth of the matter asserted”?

The answer to this question is essential to understanding hearsay. If a statement is offered for the truth of the matter asserted then it is offered to prove the content of the statement. If the reason for offering the statement is for any reason other than to prove the content of the statement offered, then, although it may be excluded by some other rule of evidence, the rule against hearsay will not prevent that statement from getting admitted.

What are some examples of statements offered that are not offered for the truth of the matter asserted?

Any statement offered for a reason other than to prove the truth of the content of that particular statement is not subject to the rule against hearsay. That said, there are some common types of statements often tested on the MBE that fall within this category. If a statement is offered, but it is offered merely because it is itself a legally operative fact, then that statement is not hearsay. For example, a statement might be offered to show that there was an acceptance of an offer in a contract, and there is no hearsay problem with such a statement, because it is being offered to show there was an acceptance, and it is not being offered to prove the truth of whatever was stated in that acceptance. In addition, a statement might be offered to show its effect on the listener. For example, a statement might be offered to show that a person was on notice about a dangerous condition and was therefore negligent in not fixing that condition once on notice. Such statements are not hearsay, as they are being offered to prove notice, and not to prove truth of the matter asserted. Statements might also be offered as circumstantial evidence of the declarant’s state of mind. For example, if evidence is offered that the declarant stated that a purple elephant demanded he kill his wife, such a statement can be offered to develop a defense of insanity. Such a statement would not be hearsay, as it is not being offered to prove that a purple elephant did, in fact, demand that defendant kill his wife (ie., the truth of the matter asserted).

**There are two ways to purchase MBE Essentials. The first is right here on the blog by clicking the "buy now" button on the right side of the page. The book can also be purchased on amazon @

Monday, January 11, 2016

Larceny vs Embezzlement

Some distinctions come up time and again on the MBE. One such distinction is that between two theft crimes: larceny and embezzlement. You'll see quite a few of these questions as you work through Criminal Law, and here I'll outline the important differences to note:

Larceny is the taking and carrying away of tangible personal property of another by trespass with the intent to permanently deprive the other of his/her property.

Determine first whether the person charged with larceny had possession of the property at the time it is claimed that the person took and carried away the property. Because if the person had legal possession of the property at that time, then larceny is not the proper charge. The reason for this stems from the definition above; larceny requires taking and carrying away the property of another and if a person is deemed to have possession of the property that he takes, then it can't be said that the person is taking the property of another, and as such not all essential elements of the crime have been satisfied.

Further, larceny requires that at the time of the taking and carrying away of the property of another, the person taking the property intends to permanently deprive another of the property. For purposes of the MBE you should also have an understanding of "continuing trespass larceny" in which the intent to permanently deprive is not formed until after the property has been taken. This too is deemed larceny, provided that all other elements have been satisfied.

Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property. Unlike with larceny, to be charged with embezzlement, one needs to have been in lawful possession of property prior to misappropriating that property.

In determining if a person is in possession of property for purposes of analyzing embezzlement consider the following definition for guidance: A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner (in which case consider embezzlement). A person lacks possession if he has physical control over it, but his right to use it is substantially restricted by the person in lawful possession of the property (in which case consider larceny).

This distinction outlined here is a tough one as the line between the two crimes is rather thin. But like so many legal concepts on the MBE, the best way to understand the type of distinction that might be tested is to work through many practice questions. The MBE should be thought of as a game, and like many games the best way to improve is through dedicated practice and training. The outlines will start you on your way, but practice will take you to where you need to be.

Sunday, January 3, 2016

Confessions of Co-Defendants

A tricky issue that shows up on the MBE in the area of Criminal Procedure relates to whether the confession of one co-defendant that implicates the guilt of the other co-defendant can be used as substantive evidence as to the guilt of the non-confessing co-defendant.

This issue comes up because as per the 6th Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. And if two people are tried together and one has given a confession that implicates the other, the non-confessing defendant cannot compel the confessing defendant to take the stand for cross-examination, and so admitting the confessing defendant's statements against the non-confessing defendant would violate the 6th Amendment rights of the non-confessing defendant.

There are, however, exceptions in which the confession of one co-defedant that implicates another co-defendant will be admissible. Such a confession will be admissible if all portions referring to the non-confessing defendant can be eliminated from the confession. Further, the confession will be admissible if the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of the confession. Finally the confession is admissible if both defendants have confessed, and the prosecution wants to admit the confession of one co defendant as a means of rebutting the claim that the confession of the other co-defendant was obtained coercively. For this last exception, the jury must be informed that the confession should only be used for this specific purpose.

Wednesday, December 23, 2015

How It's Tested: Larceny

I've written a few posts about larceny here on the blog. In today's post I'll be focusing on a very specific way that the crime is tested in some questions. Larceny is the taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of his/her property. Oftentimes questions will play on one element, and that element will be the deciding factor as to whether a charge of larceny is proper. And sometimes the reason why larceny is an improper charge is because the property taken actually belonged to the person taking the property, rather than belonging to "another."

But I want to focus here on a specific type of question in which even though a person is merely reclaiming his/her own property, a charge of larceny is still proper. It is possible to commit larceny of your own property if another person (for example, a bailee) has a superior right to possession of the property at the time you (the owner of the property) attempt to reclaim it. For example, if someone has performed work on a piece of personal property and all that remains is payment for the work completed, then the owner of the property can commit larceny if the owner takes that property from the person who completed the work without providing payment for the work completed, provided all other elements of the crime are satisfied.

And of course if the owner sends someone to reclaim the property, the analysis is the same. One cannot escape a charge of larceny simply because one sends another to perform the acts that constitute the crime.

Monday, December 14, 2015

MBE Fast Fact: Intersovereign Litigation

Though not a very heavily tested area within the subject of Constitutional Law, there are a few points to keep in mind about intersovereign litigation:

The United States may sue a state without its consent. Public policy, however, forbids a state from suing the United States without the consent of the United States. Note importantly, however, that Congress can pass legislation that permits the United States to be sued by a state.

Questions might present in which a federal officer is being sued and you'll need to determine whether that suit against the federal officer should be deemed a suit against the United States or instead a suit against the officer as an individual. It will be deemed to be a suit against the United States if the judgment sought would be satisfied out of the public treasury and if the officer was acting within his scope of authority. However, if the officer acts outside of his authority as a United States officer (such acts are deemed "ultra vires") then specific relief against the individual officer will be granted as a suit against the officer in such a situation will not be deemed to be a suit against the United States.

Finally, note that one state may sue another state without the consent of the latter state. In such a lawsuit, the Supreme Court has original jurisdiction.

Wednesday, December 9, 2015

Amendments to Civil Procedure Content on the MBE

The NCBE has announced on its website that the 2015 amendments to the Federal Rules of Civil Procedure will be reflected on the MBE beginning in July 2016.

Below is a link to a concise review of the changes.

Monday, December 7, 2015

MBE Fast Fact: Supplemental Jurisdiction

There are quite a few avenues the MBE can take when testing supplemental jurisdiction in Civil Procedure. Supplemental jurisdiction gives authority to the federal courts, under certain circumstances, to hear additional claims substantially related (or of the same "common nucleus of operative fact") to the original claim even though the court would lack the subject-matter jurisdiction to hear the additional claims independently.

But one point to keep in mind is that a court may not exercise supplemental jurisdiction over claims by plaintiffs against parties added as third parties if doing so would destroy diversity of citizenship among the parties. Thus, for a court to have subject-matter jurisdiction over a claim by a plaintiff against a party added by plaintiff as a third party, the prerequisites for traditional subject-matter jurisdiction must be satisfied.

Saturday, November 21, 2015

Malice Aforethought

Oftentimes when the MBE is testing the crime of murder, a statute is provided in the fact pattern and you'll be required to interpret that statute and draw a conclusion based upon your interpretation. You'll see terms like "first-degree murder," "second-degree murder," etc. But that's not the default rule on the MBE; rather, the default rule on the MBE is the common law, and common-law murder does not incorporate distinctions such as first-degree.

Murder under the common law is defined as the killing of another human being with malice aforethought. As with all legal rules, you'll want to parse the rule to ensure that all elements of the rule have been satisfied before drawing your conclusion. The first few elements are easy enough; you'll want to ensure that the victim has died and that the victim was a human being. The question will likely be testing the element of malice aforethought, so it's essential to understand what constitutes malice aforethought.

The 4 mindsets that will satisfy the malice aforethought requirement are:

(1): An intent to kill: If x intends to kill y (in other words, x actively desires the prescribed criminal consequences to follow his act), then murder is applicable.

(2): An intent to cause serious bodily injury: Note here that a person can be charged with murder under the common law even if it is not the desire of that person to kill another. Provided that x desires to cause y serious bodily injury, then if y dies as a result of the injury inflicted by x, x can be charged with murder.

(3): Reckless indifference for the life of another: This is sometimes referred to on the MBE as depraved heart murder. Even if there is no intent to kill, and there is no intent to cause serious bodily injury to another, one can be charged with murder if he acts recklessly, and the reckless act causes the death of another. An important distinction to note here is between recklessness and negligence. Causing the death of another through one's own negligence is not sufficient for a charge of murder (the more appropriate crime is involuntary manslaughter), but causing the death of another through one's own recklessness is sufficient. The key difference here is that a person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions whereas he acts negligently if he should have been aware (even if not actually aware) of a substantial and unjustifiable risk that a certain consequence would result from his actions.

(4): Felony Murder: You'll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony. If a death occurs during the commission of an inherently dangerous felony, and there is no intent to kill, no intent to cause serious bodily injury, and no reckless disregard for the life of another, then consider felony murder, as it will provide a basis for a charge of murder even if the highest degree of fault on the part of the person committing the felony is negligence.

Thursday, November 12, 2015

MBE Fast Fact: First Amendment: Overbroad vs. Void for Vagueness

I've stated on this blog in the past that the First Amendment is an important topic to know well when studying Constitutional Law. The terms "overbroad" and "void for vagueness" have similarities that make them very testable as small differences can materially distinguish one answer on the exam from another.

A statute is overbroad if the statute proscribes activities that may be constitutionally forbidden but in doing so also sweeps within its coverage speech that is protected by the First Amendment. A law limiting First Amendment rights must be crafted to limit only those rights not protected by the Constitution. If not crafted as such then it might well be overbroad and therefore unconstitutional.

In contrast, a statute may be void for vagueness if the conduct forbidden is so unclearly defined that people would have to guess at its meaning and would differ as to its application. Oftentimes if a question is testing the concept of vagueness a specific term within a law will be provided, but that term will not be defined. By not defining that term its meaning is left ambiguous and ambiguity leaves open the possibility that people will define the term differently thereby limiting their ability to correctly apply the law. If a reader of a statute is left to guess the meaning of a material term within a statute, consider whether that statute is void for vagueness.

Wednesday, November 4, 2015

Summary Judgment vs Motion for Judgment as a Matter of Law

The distinction between a summary judgment and a judgment as a matter of law (formerly known as a directed verdict) was showing up on the MBE even before Civil Procedure became a testable subject. Now that Civil Procedure is tested, it's even more likely to come up in one way or another.

A motion for summary judgment is a pretrial procedure to determine whether genuine issues of material fact exist within the case. A decision in favor of the moving party will resolve a lawsuit before there is a trial. Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party (the non-moving party) to prevail if the matter were to proceed to trial.

A motion for judgment as a matter of law, on the other hand, is requested at the end of a plaintiff's case or after all the evidence has been completed. The moving party when making a motion for judgment as a matter of law is arguing that the evidence clearly reveals that s/he must prevail and that there is therefore no reason to send the case to the jury. In deciding whether to grant a motion for judgment as a matter of law, all the evidence is viewed in the light most favorable to the non-moving party. A motion for judgment as a matter of law if granted is usually granted because the judge concludes that the non-moving party has failed to offer the minimum amount of evidence to prove the case. In other words, no reasonable jury could decide in favor of the non-moving party.

Sunday, November 1, 2015

Re-taking the MBE

The average score on the July 2015 MBE fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided by the National Conference of Bar Examiners. The mean score on this most recent exam was a 139.9, down from 141.5 in July 2014.

Some time ago I wrote an article focused entirely on re-taking the exam, and many are now in the position of facing the exam again after having taken it in July. I hope the article might provide some guidance, and it can be found @

Monday, October 19, 2015

Process of Elimination

"You will not apply my precept," he said, shaking his head. "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?"

The above quote is by Arthur Conan Doyle through his character Sherlock Holmes but the advice regarding reasoning by elimination applies quite well on the MBE, and really on any multiple choice test.

The writers of the MBE are adept at hiding the correct answer so it's often an easier task to spot an error in all incorrect answer choices than it is to spot the choice in which no error exists. This advice sometimes strikes my students as surprising when I direct them to not attempt to spot the correct answer but instead to get rid of all that is not correct so that the correct answer is all that remains.

Further, there is a mathematical basis for this approach. With 4 choices to choose from you have a 1/4 chance or 25% chance of answering the question correctly. But eliminate 1 of the incorrect choices and the probability of answering correctly on a random guess jumps to 33%. Eliminate 2 and you now have a 50% chance of answering the question correctly. The goal, of course, is to eliminate the 3 incorrect choices, but even if you don't make it that far, eliminating even 1 has increased your chances of guessing correctly on any individual question.

I'll note that this approach does not, however, allow a test-taker to know the law any less well than one would be required to know it if the initial goal were to spot the correct answer from the 4 given. To be able to spot the error in an answer choice requires a deep knowledge of the substantive law. In my opinion, however, it is slightly easier to see through those distractors than it is to pick which among the 4 answer choices has no errors.

And that slight edge can make a big difference on a bar exam where the difference between passing and not passing is often equivalent to the difference between a few points.

Thursday, October 15, 2015

MBE Fast Fact: Symbolic Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.

The First Amendment is heavily tested within the subject of Constitutional Law. Protection is not limited to verbal communications; rather, symbolic conduct is also protected provided the conduct is undertaken with the intent to communicate an idea.

The difficulty lies in determining whether symbolic conduct is intended to communicate an idea; if not then the conduct will not fall within the protection of the First Amendment. In analyzing such cases, the courts ask whether the speaker intended to convey a particular message and whether it is likely that the message was understood by those who viewed it. Assuming that the conduct is intended to communicate an idea (and is therefore deemed symbolic speech protected by the First Amendment) the following test should be applied in determining whether an attempt to regulate that conduct will be upheld:

A regulation of symbolic conduct that is meant to an express an idea will be upheld provided that the regulation furthers an important governmental interest. In addition, the governmental interest must be content-neutral in the sense that it is unrelated to the suppression of speech.

Finally, the incidental burden on speech must be no greater than is necessary to further the government's interest. In other words, the regulation must prohibit no more speech than is essential to further the government's interest.