Tuesday, November 25, 2014

MBE Essentials: Civil Procedure

Everyone taking the MBE in February is trying to get up to speed on Civil Procedure. Here are two questions and answers from the chapter on Civil Procedure from my book MBE Essentials:

Q: What information must be contained within an answer to a complaint?

A: The answer must contain a specific denial or admission of each averment of the complaint, or a general denial with specific admissions of the averments admitted. The defendant may also claim that he is without knowledge or information sufficient to form a belief, and that, too, will constitute a denial. The defendant must state any affirmative defenses. Defendant must file the answer within 21 days of service (or if defendant has waived the specific service rules, within 60 days after defendant receives the request for waiver). If defendant files a rule 12 motion (rather than filing an answer), and the court denies the motion, defendant’s responsive pleading is due within 14 days after denial of the motion. If defendant files a motion for a more definite statement, and service of a more definite statement is made to defendant, defendant’s answer is due within 14 days of the service of the more definite statement.

Q: What is a counterclaim and how does plaintiff respond to a counterclaim?

A: Counterclaims under the federal rules are either compulsory or permissive. Compulsory counterclaims are those that arise from the same transaction or occurrence as the plaintiff’s claim, and these must be pleaded as a counterclaim or they will be thereafter barred. Permissive counterclaims do not arise from the same transaction or occurrence as the plaintiff’s claim, and these may, at discretion of defendant, be asserted as a counterclaim provided they meet the jurisdictional requirement for filing a claim in federal court. The plaintiff need only reply to defendant’s answer when defendant has asserted a counterclaim.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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Saturday, November 22, 2014

MPRE Essentials

Along with my resource, MBE Essentials, MPRE Essentials is now available for download! The resource contains 80 questions and answers, each one teaching an essential aspect of the substantive law tested on the MPRE. Below is a sample of the format and content of the resource:
May a lawyer licensed to practice in one jurisdiction temporarily practice in a jurisdiction in which he is not licensed?

Under specific circumstances, yes, this is allowable. A lawyer may practice on a temporary basis in a state in which he is not admitted if he associates with a local lawyer who participates in the matter. In addition, even if not associating with a local lawyer, a lawyer may request to appear “pro hac vice,” which allows the lawyer to participate in that matter only. A lawyer may also engage in alternative dispute resolution in a state in which the lawyer is not licensed to practice law, but only if those services arise out of a matter originating in a state in which the lawyer is licensed to practice. Finally, a lawyer may temporarily practice in a state in which the lawyer is not licensed if the out-of-state practice is reasonably related to the home-state practice.

May a lawyer licensed to practice in one jurisdiction permanently practice in a jurisdiction in which he is not licensed?

Once again this is allowable, but the circumstances are more limited. This is allowable if the lawyer is a salaried employee of a single client (in other words, the lawyer is an in-house counsel for a corporation). If so, the lawyer may provide permanent legal services to that client in a state other than the state in which the lawyer is licensed, but note that to litigate for the client the lawyer will have to seek admission “pro-hac-vice.” In addition, the lawyer may provide permanent out-of-state- services when such services are authorized by federal or state law.

What are the consequences of assisting a non-lawyer who is engaging in the practice of law?

If a lawyer assists a non-lawyer who is engaging in the practice of law, the lawyer will be subject to discipline. The “practice of law” in this context includes those activities involving legal knowledge and skill that constitute advice regarding binding legal rights and are traditionally performed by lawyers. This rule does not prevent a lawyer from advising and instructing non-lawyers whose employment requires legal knowledge, or advising a person who has chosen to represent himself in a legal matter.

When does the lawyer-client relationship arise?

The relationship arises when a person indicates an intent that the lawyer provide legal services and the lawyer either agrees or fails to clearly inform the person that he does not wish to represent him.

To order MPRE Essentials (80 questions and answers in total) click below:

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Saturday, November 15, 2014

The Top Five: Jury Trials in Civil Cases

The rules related to jury trials are sure to be tested in Federal Civil Procedure. Here are five things to certainly know going into the exam:

(1): The federal rules allow for a jury of at least 6 and no more than 12. If the jury falls below 6 (for example, due to illness of a sitting juror), no verdict may be taken unless the parties consent.

(2): The federal rules require unanimity in jury verdicts; however, the parties may stipulate to a non-unanimous verdict.

(3): The right to a jury trial may always be waived by the parties.

(4): Under the federal rules, a demand must be made for a jury trial. Specifically, a party must serve on the other parties a written demand for a jury within 14 days after service of the last pleading dealing with the issue for which the jury is demanded. The demand must then be filed with the court within a reasonable time.

(5): Unless the demand specifies particular issues, a party will be deemed to have demanded a jury trial on all issues triable by a jury. But if a party does limit the demand to certain issues, any other party may demand a jury trial on any or all of the remaining issues triable by a jury by serving its own demand within 14 days after the initial service.

Wednesday, November 12, 2014

Changes to the New York Bar Exam

Some major changes have been recommended by the New York Bar of Law Examiners, but it looks as though all will remain as is at least through July 2015.


Monday, November 10, 2014

MBE Fast Fact: Legislative Immunity

There are many ways that the tort of defamation can be tested on the MBE. One constitutional aspect of defamation to keep in mind is called the Speech and Debate Clause.

Article 1 Section 6 of the Constitution provides that for any speech or debate in either the House of Representatives or the Senate, members of Congress shall not be questioned in regards to statements made. And it's important to note that the statement need not relate to legislation; it's enough that the words were spoken on the floor during a legislative session. The clause shields members of Congress from civil or criminal suits relating to their legislative actions, and from grand jury investigations relating to those actions.

The MBE has also tested whether the Speech or Debate Clause applies to protect legislative assistants. In fact it does to the extent that the assistants are performing acts that would have been protected had they been performed by a member of Congress.

Monday, November 3, 2014

MBE Fast Fact: Interpleader

Occasionally, situations will arise in which a person (often deemed a "stakeholder") will want to determine who among adverse claimants has a valid claim to an item of property ("the stake"). As such, both the Federal Rules of Civil Procedure and federal statutes allow for that stakeholder to institute an interpleader suit to make this determination. It applies only if separate actions might result in double liability against the stakeholder.

There are two interpleader procedures in the federal courts, and both procedures should be known for purposes of the MBE:

(A): Rule 22 Interpleader: Rule 22 requires either that (1): There is complete diversity between the stakeholder and all adverse claimants and that the $75,000 amount in controversy is satisfied, or (2): federal question jurisdiction applies. The regular rules for service & process and venue apply.

(B): Section 1335 interpleader (sometimes referred to as "statutory interpleader") requires only minimum diversity between the claimants. This minimum diversity will be satisfied if one claimant is diverse from one other, even if all claimants are not diverse from all others), and that at least $500 is at issue. Service may be nationwide and venue is proper where any claimant resides.

Thursday, October 30, 2014

Legal Analysis for Bar Exam Essays

I wrote an article a while back on effective essay writing for purposes of the bar exam. I've reprinted it below for those who may be struggling with earning points on the essays.


I’ve been working quite a bit with students on legal writing as of late. With increased frequency, students have been seeking tutoring not to learn any specific aspect of substantive law, but rather to improve their essay-writing ability. I thought it important to write a post in that respect. Though it would be impossible to provide significant tutoring on legal writing in a blog post, this will at least serve as an introduction as to how I believe one can improve his/her score on the bar exam by improving essay-writing ability.

Let’s take a basic example of a fact pattern implicating the tort of assault. Assume that X runs toward Y holding a large ball pretending as if he is going to throw the ball at Y. X does so playfully with no intent to actually hit Y, but Y is unaware that X lacks the intent. Y is frightened as X throws the ball. The ball misses Y by only a few inches.

ISSUE: Your first step should be to state to the bar examiners the issue you are about to analyze. For example: An initial issue is whether X may be liable for assault against Y.

RULE: Next, in a new paragraph you will want to state all relevant information that you’ve learned regarding the tort of assault. You determine what information is relevant based upon how you intend to analyze later. For example, in determining the liability of X, you will later need to analyze whether, based on the facts provided, X has violated each element of assault. As such, you’ll want to state the elements of assault in your statement of the rule. If a possible defense had been implicated by the facts, then you would want to mention that defense in your statement of the rule. For our purposes here, it would be enough to state that: An actor is subject to liability to another for assault if (1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or (2) an imminent apprehension of such a contact, and (3) the other is thereby put in such imminent apprehension.

ANALYSIS: Advice differs in this respect, but I recommend that in order to achieve the maximum number of points on a bar exam essay, you write a separate IRAC for each element you are analyzing. The IRAC of each element should form its own paragraph. So, for example, after you’ve stated your rule, you would start a new paragraph, and in that paragraph state: It first must be determined whether X intended to cause a harmful or offense contact with Y. You would analyze the provided facts and ultimately conclude that X did not intend to cause such contact with Y. In a new paragraph, you should then analyze (in IRAC form) element 2; namely, whether X intended to cause an imminent apprehension of such contact with Y. Once again you should carefully analyze the facts, ultimately coming to the conclusion (if you believe the facts warranted it) that X did intend to cause such apprehension. In the next paragraph you should analyze (in IRAC form) element 3, whether Y was put in such imminent apprehension. After analyzing the facts, you would conclude that Y was, in fact, put in such apprehension. At this point, you have analyzed each element of assault, and you are now ready to conclude.

CONCLUSION: In the next paragraph you should state your ultimate conclusion. Your ultimate conclusion (I say ultimate, because you will also have sub-conclusions for each of the IRAC’s above) should mirror the issue you’ve stated at the beginning of your analysis. Since your issue asked whether X may be liable to Y for assault, that is exactly the answer you want to address in your conclusion. So, an example of your conclusion might look like the following: Because X intended to cause an imminent apprehension of a harmful or offensive contact towards Y, and because Y was, in fact, put in such imminent apprehension of such contact, it is likely that X will be liable for assault towards Y.

In a general sense what this approach requires you to do is to take the tort of assault, divide the tort into its individual elements, and analyze carefully each element. Only once you’ve done that have you effectively addressed the issue, and once you’ve effectively addressed the issue you then state your conclusion. It’s a logical approach that may take some practice, but will earn you many points when analyzing a legal issue on the bar exam.

Hope this is helpful! Good luck!

Tuesday, October 28, 2014

July 2014 MBE Percentiles

The nationwide MBE percentiles for the July 2014 exam have been released. Here's a bit about how the numbers work: The 54th percentile was a 145 and then 15 more scaled points (160) shoots you all the way up to the 86th percentile. The top scaled score on this exam was a 185, and the lowest scaled score was a 110.

The complete chart is below. Note that the essay data only applies to the state of Illinois, so only focus on the 2nd column if you're interested only in the numbers for the MBE.

Thursday, October 23, 2014

Class Actions (Miscellaneous)

In the previous post I outlined the requirements for a proper class action lawsuit under the federal rules, and there are a few other considerations to keep in mind when preparing for the MBE. The court will determine whether to certify the class. The following will be considered by the court when making this determination: the interest of individual control; the extent and nature of litigation elsewhere on the same subject; the desirability of a joint trial; and the difficulties in managing a class action. If the court does certify the class, it must also appoint class counsel, and define the class claims, issues and defenses.

All members of a class will be bound by a judgment 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. Only in common-question class action suits is notice to all members required so that they can opt out. In all other types of class action suits, notice is discretionary, and decided by the court. When notice is required, such notice must state the nature of the action, the definition of the class, the issues, claims and defenses, and the binding effects of a class judgment.

In regard to jurisdiction, when the class action is based on diversity, only the citizenship of the named representatives of the class is taken into account in establishing diversity. On that same note, the class representative's claim generally must exceed the required $75,000 amount in controversy. As usual, however, supplemental jurisdiction may be invoked to allow for claims that do not exceed the required amount in controversy provided that complete diversity is not destroyed.

Court approval is required before a dismissal or settlement of a class action. Notice of settlement must be provided, and in a common-question class action, the court (in its discretion) may provide the parties with a second opportunity to opt out. A fairness hearing must also be held.

Sunday, October 19, 2014

Class Action Lawsuits (requirements)

There are very specific rules for determining whether a class action lawsuit is proper. The following elements should be analyzed in making the determination as to whether a class action is appropriate.

A class action is proper if:

--The class is so numerous that joinder of all members is impracticable.

--There are questions of law or fact common to the class.

--Named parties' interests are typical of the class

--Named parties will adequately represent the interests of the absent members of the class.

In addition to all of the above, one of the following three must be satisfied:

--Separate actions would create a risk of inconsistent results or impair the interest of unnamed parties.


--The defendant has acted or refused to act on grounds applicable to the class and injunctive relief is appropriate for the class as a whole.


--Common questions of law or fact predominate over the individual issues and a class action is superior to alternative methods of adjudication.

**More info on class action lawsuits coming in the next post.

Sunday, October 12, 2014

MBE Essentials: Recording Statutes

Two questions from my book MBE Essentials on the topic of recording statutes:

Q: What are the important distinctions among the recording statutes that could appear on the MBE?

A: The three types of statutes you’ll need to be familiar with are notice statutes, race statutes, and race-notice statutes. Under a notice statute, a subsequent BFP (a person who pays value and has no notice of any prior conveyance) prevails over a prior grantee who failed to record. The result is the same even if the prior grantee, after learning of the subsequent conveyance, wins the race to the recording office. Under a race statute, notice is irrelevant, and all that is important is who wins the race to the recording office. This means that even if the subsequent grantee knows that the same property has been granted to a prior grantee, that subsequent grantee can prevail if he records before the prior grantee. Under a race-notice statute a subsequent BFP will prevail over a prior grantee if that BFP wins the race to the recording office. In other words, the subsequent grantee must have no notice of a prior conveyance and must record before the prior grantee.

Q: What’s the best way to determine what kind of recording statute is being tested when a statute is provided within the MBE question?

A: If the word “first” appears in the statute, and the word “notice” does not appear, then it is a race statute. If the word “notice” appears in the statute, but the word “first” does not, then it is a notice statute. If both the word “first,” and the word “notice” appear in the statute, then it is a race-notice statute.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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MBE Fast Fact: Joinder of Claims

The issue of joinder of claims is implicated when plaintiff has sued defendant on one claim and wants to join other claims to the same lawsuit. Joinder of claims in such an instance is allowable, though if there are multiple plaintiffs or multiple defendants, then it is necessary that at least one of the claims arise out of a transaction in which all were involved.

A few jurisdictional issues to keep in mind here. If jurisdiction is based on diversity of citizenship, then plaintiff may aggregate all claims against a single defendant in order to satisfy the jurisdictional amount. Further, once the jurisdictional amount has been satisfied in respect to one claim, other claims that do not satisfy the jurisdictional amount may invoke supplemental jurisdiction if they arise from the same common nucleus of operative facts as the claim that did satisfy the amount.

If, instead, jurisdiction is based on a federal question claim, a nonfederal claim may be joined provided it is part of the same case or controversy as the federal claim.

Friday, October 10, 2014

New York Considering the UBE

New York might be administering the Uniform Bar Exam as early as July 2015.

More @ http://www.nybarexam.org

Monday, October 6, 2014

Joinder of Parties

A lot to know about joinder as you study Civil Procedure for the MBE. This post will focus entirely on joinder of parties, and on a future post I'll write about joinder of claims. In regards to joinder of parties, it can further be subdivided into two main categories: compulsory joinder of parties, and permissive joinder of parties.

Compulsory Joinder:

There are instances in which a party should be joined to an already-existing lawsuit. A party should be joined if complete relief cannot be granted to the existing parties in the absence of the party to be joined. In addition, a party should be joined if the absence of that party may impair that party's ability to protect his own interests in the controversy. And finally, a party should be joined if his absence would expose the existing parties to a substantial risk of double or inconsistent obligations. If any of the above are satisfied, then that party must be joined provided the party is amenable to service of process, and joinder of that party will not destroy diversity or venue.

But the question is then raised as to what is the procedure if such a party should be joined but cannot be joined. When joinder is not feasible the court must decide as to whether the inability to join that party renders the action dismissed, or instead whether the action should continue without the party. Once again, the court will have some considerations to attend to when making this decision. The court will determine whether a judgment in the absence of the party would prejudice that party or the existing parties to the lawsuit. The court will also consider whether any prejudice can be effectively reduced, and whether a judgment in the party's absence would be adequate. Lastly, the court will consider the interests of the plaintiff in the action; if dismissal of the action will result in depriving the plaintiff of an adequate remedy, the dismissal will be less likely.

Permissive Joinder:

Other instances present when joinder of parties is permissive even though the requirements for compulsory joinder are not satisfied. Specifically, parties may join an existing lawsuit if some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions, and there is a question of fact or law common to all parties. It's important to note here that although this rule is broad, the requirements as they relate to diversity jurisdiction are not altered. In other words, if the action is based on diversity of the parties, then there must be complete diversity among the parties after additional parties have been joined

Monday, September 29, 2014

MBE Essentials: Res Judicata vs. Collateral Estoppel

Two questions and answers from my book MBE Essentials:

What is res judicata?

Under the doctrine of res judicata (claim preclusion), once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred from trying the same cause of action in a later lawsuit. In regards to defining “cause of action” a common approach is to require assertion of all claims arising out of the same transaction or occurrence that is the subject matter of the claim asserted by plaintiff.

What is collateral estoppel?

Under the doctrine of collateral estoppel (issue preclusion), judgment for either plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them. This applies only to issues actually litigated and essential to the judgment in the first action.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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MBE Fast Fact: Rule 11

Rule 11 of the Federal Rules of Civil Procedure is implicated whenever an attorney (or unrepresented person) presents to the court a pleading, written motion, or other paper. The rule provides that whenever such a paper is presented, the presenter certifies that to the best of his/her knowledge the paper has not been presented for any improper purpose (for example, harassment, delay, etc.) In addition, it is certified that that the legal contents therein are warranted by existing law or contain an argument for the modification of existing law. It is further certified that the allegations and factual contentions therein have evidentiary support and that denials of any factual contentions are warranted by the evidence or are reasonably based on a lack of information or belief.

It's important to understand the consequences of violating the rule. Violations of Rule 11 can lead to sanctions, and the court has discretion to impose sanctions against a party who presents a paper in violation of the above requirements. The matter may be raised by the court on its own initiative or the opposing party may serve a motion for sanctions with the court. Sanctions may consist either of nonmonetary directives or monetary penalties, and the monetary penalties may include payment of expenses or attorney's fees incurred as a result of violating the rule.

Sunday, September 21, 2014

The Top Five: The Complaint and Pre-Answer Motions

The topic of pleadings is sure to be a heavily tested topic in Civil Procedure on the MBE. Here are five things to know about the complaint and pre-answer motions under the federal rules:

(1): The federal rules require notice rather than fact pleadings. Notice pleadings require less specificity than fact pleadings, though a certain level of specificity will still be required.

(2): A complaint must state the following: the grounds of federal jurisdiction, a short statement of the claim showing that the pleader is entitled to relief, and a demand for judgement for relief (which may be in the alternative).

(3): An important motion to keep in mind is a rule 12(b) motion. Here, the defendant files a motion raising any or all of the following defenses: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, or failure to join an indispensable party. If the defendant files a pre-answer motion prior to filing an answer then these defenses must be raised in that pre-answer motion. If the defendant files an answer prior to filing a motion, then these defenses must be filed in that answer. If not filed as specified, then defendant waives these defenses, except for failure to state a claim upon which relief can be granted and failure to join an indispensable party, both of which may be raised at any time prior to trial or at trial. In addition, lack of subject matter jurisdiction may be raised at any time until all appeals have been exhausted.

(4): If a party deems a pleading to be vague, that party may raise a 12(e) motion for a more definite statement before responding to the pleading.

(5): Rule 12(f) allows a party to move to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter in a pleading. This motion must also be made prior to responding to the pleading.