Challenges, Old and New

Sixty-Five-Year-Old Man Takes the Bar Exam

The Uniform Bar Exam, or UBE, which North Carolina began administering this year, has three components. In order of administration they are the Multistate Performance Test (MPT), given over three hours on the morning first day, the Multistate Essay Examination, given over three hours the afternoon of the first day, and the Multistate Bar Exam, 200 multiple choice question, given in two three-hour sessions on the second day.

Of these the newest component is the MPT, which is aimed at testing the applicant’s ability to perform a task that a beginning lawyer should be able to accomplish, though in only 90 minutes. The National Conference of Bar Examiners puts it this way:

 


The MPT consists of two 90-minute items. The materials for each MPT include a File and a Library. The File consists of source documents containing all the facts of the case. The specific assignment the examinee is to complete is described in a memorandum from a supervising attorney. The File might also include transcripts of interviews, depositions, hearings or trials, pleadings, correspondence, client documents, contracts, newspaper articles, medical records, police reports, or lawyer’s notes. Relevant as well as irrelevant facts are included. Facts are sometimes ambiguous, incomplete, or even conflicting. As in practice, a client’s or a supervising attorney’s version of events may be incomplete or unreliable. Examinees are expected to recognize when facts are inconsistent or missing and are expected to identify sources of additional facts.
The Library may contain cases, statutes, regulations, or rules, some of which may not be relevant to the assigned lawyering task. The examinee is expected to extract from the Library the legal principles necessary to analyze the problem and perform the task. The MPT is not a test of substantive law; the Library materials provide sufficient substantive information to complete the task.

The MPT requires examinees to (1) sort detailed factual materials and separate relevant from irrelevant facts; (2) analyze statutory, case, and administrative materials for applicable principles of law; (3) apply the relevant law to the relevant facts in a manner likely to resolve a client’s problem; (4) identify and resolve ethical dilemmas, when present; (5) communicate effectively in writing; and (6) complete a lawyering task within time constraints.
These skills are tested by requiring examinees to perform one or more of a variety of lawyering tasks. For example, examinees might be instructed to complete any of the following: a memorandum to a supervising attorney, a letter to a client, a persuasive memorandum or brief, a statement of facts, a contract provision, a will, a counseling plan, a proposal for settlement or agreement, a discovery plan, a witness examination plan, or a closing argument.

National Conference of Bar Examiners, Preparing for the MPT

In addition to the bar review course, which I wrote about in an earlier post, this semester I have been auditing a bar preparation course offered at our law school, and ably led by Joel Chanvisanuruk, our Assistant Dean for Academic Success and Bar Programs. I want to take advantage of every opportunity I have to increase my chances of passage.

Of the practice MBE questions, the essay questions, and the MPT problems, the MPT ones are causing me the most trouble with my time. In both my class with Joel and the bar review course MPT coverage, they recommend responding to those problems with a particular set of steps. These involve reading the problem in a particular order, noting first the applicable rules (law), reading the facts, drafting an outline of how the former apply to the latter, and making an outline of the points to cover in the response. For that process the bar review recommends half the time allotted to the problem, so 45 minutes. One is to spend the other 45 on writing the response.

So far, I have found that no matter how well I analyze the problem, I cannot write a full response in 45 minutes using the recommended method. So on a practice problem today, I decided to modify the recommended method. I read the rules, underlining the important points, and noted the rule names or numbers. I then read the facts, again underlining key ones, and noted those in writing. I went over my notes quickly to list in very short form the points I wanted to cover, and then I started writing the response. I had left myself about 55 minutes, and I finished my response as the time expired. The problem involved applying the Rules of Professional Conduct and a court decision to a situation where a law firm had to decide whether any of three potential conflicts of interest would keep it from taking on a client’s case.

When I reviewed model answer, I found that I had covered the three points it discussed with a very similar analysis and the same end answers. My answer was not as elegant, and definitely not as long, but it clearly explained my reasoning, cited the appropriate rules, and came to the same conclusions, so I was quite satisfied with it. Still, I was amazed that the examiners expect, or at least hope, that the applicants can write so much detail in such a short time. Based on today’s success, I will continue using my modified method, and will consider further modifying it as necessary.

So the new challenge is doing well on this kind of problem. The old challenge involves handwriting. I have always had awful handwriting, and it has grown progressively worse over the years. Partly this is a function of some early development issues, partly it is because my brain output is much faster than my hand can write (and than I can accurately type), and partly because I am frustrated that I cannot form legible letters as quickly as my brain needs me to. So I was an early user of word processing programs and before that, typewriters. I wanted the reader to understand what I had written. In fact, more than thirty years ago I requested and received permission to take my library school exams by computer, so the professor could better read them. I had to use a computer in the computer lab, because laptops were still quite expensive – $2,000 then, equivalent to 4,500 2018 dollars.

I had purchased a notebook computer last fall to use in the bar exam essay questions. I was hoping that I could also use it on the MPT; unfortunately a few days ago I learned that North Carolina permits computer use only on the essays. So my new challenge is to improve my handwriting for the MPT. My handwriting was good enough to pass the Florida Bar Exam nearly 42 years ago; I’ve got to make it good enough again for three hours at the end of July.

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