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MULTISTATE PERFORMANCE TEST (MPT) (City of Oakland)

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MULTISTATE PERFORMANCE TEST (MPT)
PROFESSOR PAVEL WONSOWICZ
UCLA SCHOOL OF LAW
CHAPTER 1: THE MPT
A. Approach
What is the MPT?
What method is best to write the MPT?
What types of analyses are tested?
What writing strategies should you adopt?
How do you diagnose your writing?
B. What is the MPT?
1. Create a ___________________________________ from materials that are provided for you.
o Materials—instruction sheet, task memo, fact file, law library
2. Skills tested
1) Reading comprehension (read proactively)
2) ________________________________________________
3) Communication (you have the proper _________________________)
4) Ability to follow directions
3. Purpose—get through the information but address only that which is required in the task
memo, in 90 minutes
o Develop tests from the materials to analyze the facts.
o Find facts that prove the elements and factors.
o Communicate effectively.
o Work efficiently by focusing on one task at a time.
o Goal: _________________ of your time analyzing; _________________ of your time writing
CHAPTER 2: MPT METHOD
A. Step #1: Read the Instruction Sheet (1 minute)
• Check for the following instructions:
1. Mythical jurisdiction (usually in the state of ___________________________); in CA usually
the state of Columbia
2 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
2. Abbreviated citations allowed
3. Read the case as if it were ____________________________________.
B. Step #2: Read the Task Memo (4 minutes)
• Focus on:
1. The point of view (____________________________ or _____________________________)
2. The audience (______________________ or ______________________)
3. The goals of the task
4. Inclusions and exclusions (e.g., whether you need to write a statement of facts)
5. Guidelines (if included)
Exam Tip 1: Be aware of the broad range of potential tasks. You may be asked
to write a pleading, a motion, a client letter, or something different. Don’t
panic if you get a strange task.
C. Step #3: Read the Library (20 minutes)
• Skip the facts and start with the law.
• Start with __________________________________ (if given); the cases will illuminate.
• Cases—start with the earliest case
o Verify the jurisdiction (mandatory v. persuasive authority)
• Do not ignore _____________________________________, embedded quotes, or block quotes.
D. Step #4: Develop a Working Outline (10 minutes)
• Find the gray areas of the law.
• Develop tests and subtests using “if-then” propositions.
Example 1: A PT recently tested attorney work product. The analysis could be
deconstructed as, “If anticipation of litigation, then substantial need and undue
hardship.”
One case discussed what is a “substantial need”? = relevance and importance
Another case discussed what is “undue?” = other sources, depositions, etc.
• Do not ignore burden of proof and policy rules.
• Read the cases while asking, “How does this fit?”
E. Step #5: Read the File (10 minutes)
• There may be __________________________________________ facts or even irrelevant law.
• Focus on finding facts that prove the elements or factors in your outline.
o Be aware of facts that contradict each other or are incomplete.
o Characterize legal relationships.
• Insert facts into your outline next to the element or factor they prove.
Multistate Performance Test (MPT) | © 2019 Themis Bar Review, LLC | 3
• Develop an ______________________ outline: decide the order and choose facts to prioritize.
F. Step #6: Write (45 minutes)
• Be responsive to tone and the assigned task.
• Be objective or persuasive as appropriate.
CHAPTER 3: TYPES OF ANALYSES; WRITING STRATEGIES; DIAGNOSIS
A. What Types of Analyses?
1. Legal Analysis
o Often a motion or a legal memo
o Usually in a ______________________________________________ format
o Usually in __________________________ or ___________________________ form
o Spend time discerning why a case is present in the library.
o Craft clear rules.
o Focus on _________________________________________ determinative facts.
2. Fact Analysis
o Often a persuasive lay scenario
o Sometimes an _______________________________________ argument or closing
argument to a jury
o Law is often a little easier to explore the facts
o Spend time building a narrative.
3. Fact Gathering
o Looking for the ultimate fact to prove each element
o Often an _______________________________________________ scenario
o Spend more time on “weaker” elements.
4. Problem Solving
o Often a letter to a client
o Acting as a counselor (giving advice to a lay person)
o Do not ignore ___________________________________________________ facts.
o Think in terms of client’s goals and explain their options.
5. Ethical Dilemmas
o Often a conflict-of-interest scenario
o Never ignore ethical considerations.
B. What Writing Strategies Should You Adopt?
• Adopt the correct ______________________ and ______________________.
4 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
• Synthesize and apply.
• Focus on concepts, not case summaries.
o Reduce a case to its core ___________________________, __________________________,
and ____________________________________________________.
• Keep factual summaries brief.
• Do not try to innovate; embrace the obvious.
• Grammar matters—write in a lawyerlike manner.
• Format matters:
o Memo—To, From, RE:
o Opening/Closing—“Ladies and Gentlemen of the Jury…”
o Letter—address, date, salutation at the end
• Persuasive headings—use the “Under the ______________________ /When these
______________________________________________ /Then this
___________________________________” approach.
• Make your points ______________________________; prioritize finishing over eloquence.
• Focus on ______________________________________________________ facts.
o Also note whether facts are unreliable.
• Remember, the working outlines are just for you; keep them short
• PRACTICE!
C. How to Diagnose Your Writing
1. Common Problems
o Synthesis—ask, “why is this case here?”
o Completing a sub-task (addressing only part of the task)—carefully read the task memo
o Certain type of problem—practice outside your comfort zone
o Timing—practice; divide tasks by __________________________
2. More Specific Diagnostic Issues
a. The “shotgunner”
Throwing everything on paper
To fix—work on your outline.
• Break it down point-by-point with the model answer.
b. The “tangentializer”
Does not respond to the question; does not see the sub-issue or focuses on irrelevant
facts
To fix—spend more time with the Task Memo to focus on sub-issues.
Multistate Performance Test (MPT) | © 2019 Themis Bar Review, LLC | 5
Editor's Note 1: The Professor misspoke; rather than spending more time on
the Library, this person should focus on the Task Memo.
c. The “objectifier”
Not paying attention to objective versus persuasive
To fix—focus on _______________________________________________ reasoning;
think about “no bad facts”
d. The “brainiac”
Goes outside the materials
To fix—practice MPTs outside your comfort zone.
e. The “storyteller”
Turns the PT into a long, fact-intensive story
To fix—focus on giving a rule and building your application around the rule.
f. The “legal mind”
Ignores ________________________________
To fix—focus on linking an element to a fact.
g. The “one-trick pony”
Tends to do worse on one type
To fix—practice MPTs outside your comfort zone.
3. Other Tips
o Compare your _________________________________ to the model answer.
o Practice with time constraints—consider completing just the first 45 minutes of the MPT.
o Do four to eight practice MPTs.
CHAPTER 4: IN RE HAMMOND—LEGAL OUTLINE
Editor's Note 2: This chapter requires use of In re Hammond, July 2010 MPT
1. Please complete the MPT before continuing with this chapter.
A. Instruction Sheet
B. Task Memo
• Tone must be persuasive to a legal audience
• Draft “Body of the Argument only”
• Headers:
1) __________________________________________________________; and
2) __________________________________________________________.
6 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
• “Be sure to remain faithful to our obligation to preserve client confidences”—err on the side of
___________________________________________________________.
• Guideline sheet for drafting persuasive briefs—use persuasive headers.
C. Law Library
1. Franklin Rules of Professional Conduct—Rule 1.6
o ______________________ not reveal info regarding representation
o Three exceptions:
1) Informed consent;
2) Disclosure is impliedly authorized; or
3) Disclosure is permitted by paragraph (b).
• (b) – may be revealed to prevent, mitigate, or rectify
________________________________ injury to the financial interests or property
of another that is ______________________________________________________
to result or has resulted from the client’s commission of a crime or fraud in
furtherance of which the client has used the lawyer’s services
2. Franklin Rules of Evidence—Rule 513
o Elements:
1) Confidential
2) ______________________________________________________
3) Purpose of facilitating
4) Legal services
o Exception—furtherance of crime/fraud: if the services were sought or obtained to enable or
aid what the client knew or _______________________________________ should have
known is crime/fraud
o Presumed to be ________________________________
Opposing party has burden of proof by preponderance of the evidence
If opposing party offers sufficient evidence to raise a substantial question (probable
cause OR some evidence, unclear in Franklin), must be disclosed to the court.
3. Franklin Criminal Code
o Arson is the building of another
o Defrauding insurer requires intent to defraud
4. U.S. v. Robb—Federal/persuasive—pro-prosecution
o Lawyer testifies as to former client’s intent
Multistate Performance Test (MPT) | © 2019 Themis Bar Review, LLC | 7
o Policy: Oldest privilege; full and frank communication; only disrupted when necessary
o Counter: Lift veil of secrecy when purpose is to facilitate crime/fraud
o Need “some evidence”; admitted if POE that it fits crime/fraud
Here, “some evidence” met: midst of scheme, primary source of advice, records prove
misconduct.
o More counter policy: don’t want to improperly cloak evidence
CHAPTER 5: IN RE HAMMOND—LEGAL OUTLINE (CONT.)
A. Law Library (Cont.)
1. State v. Sawyer—Columbia/persuasive/more recent—pro-defendant
o Mere assertion is insufficient—need _________________________________________, as it
protects communications unless there is a strong factual basis for crime/fraud
o Here, inferences as to no crime/fraud are “equally strong”—may have retained due to fear
of prosecution—inform choices.
B. Task Memo with Facts
• “Be faithful to our obligation to preserve client confidences”—err on the side of non-disclosure.
o In dire financial condition
o Appeared nervous
o Advised that if involved in any way with fire, cannot collect
o Tried to create false alibi
o DON’T REVEAL these facts
C. Library with Facts
1. Franklin Rules of Professional Conduct
o Shall not reveal info re: representation
Communications here concerned representation
o Three exceptions:
Informed consent;
Implied disclosure; OR
Paragraph (b).
First two don’t apply: client specifically requested that info not be revealed.
o May reveal if substantial injury to the property of another that is reasonably certain to result
or has resulted from crime/fraud where client used lawyer’s services
No _______________________________________________________ here: don’t know
cause of fire, whether he caused fire, or whether he’ll file fraudulent claim.
8 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
2. Franklin Rules of Evidence with Facts
o Elements
1) Confidential
2) Communication
3) Purpose of facilitating
4) Legal services
All are met: private conversation to explore financial/criminal aspects of fire
Hammond requested that Walker not disclose communications
o Exception—crime/fraud: if sought or obtained to enable or aid what the client knew or
reasonably should have known is a crime/fraud
Has not filed an insurance claim
Not guilty of arson, as he ____________________________________
No proof that client ________________________________________________ the
attorney for crime/fraud, as may have feared criminal charges against him
3. U.S. v. Robb—Federal/persuasive—pro-prosecution
o Policy: Oldest privilege; full and frank communication; only when necessary
Policy supports our client: needed full and frank communication to deal with possible
criminal charges
o Need “some evidence” and then admitted if POE that it fits crime/fraud
In Robb, “some evidence” met: midst of scheme, primary source of advice, records
prove misconduct.
The current facts are distinguishable:
• Didn’t need a lawyer’s help with the alleged fraudulent scheme
• Fraudulent scheme hasn’t come to fruition, nothing has been filed
• Not even sure if fire was intentionally caused by client
4. State v. Sawyer—Columbia/persuasive/more recent—pro-defendant
o Mere assertion insufficient—need probable cause, as it protects communications unless
strong factual basis for crime/fraud
Hammond’s communications need to be protected, as he was seeking attorney’s advice
as potential target of criminal investigation—thus, the higher probable cause standard
should apply
Don’t want to hurt the attorney/client relationship
Multistate Performance Test (MPT) | © 2019 Themis Bar Review, LLC | 9
o Here, inferences as to no crime/fraud are “equally strong”—may have retained due to fear
of prosecution—inform choices.
Retained due to fear of arson charges
Don’t need to retain an attorney to commit this type of fraud, as merely need to file
insurance paperwork; thus, didn’t obtain services of attorney for crime/fraud
Sought forms before he hired the attorney
D. Attack Outline
Note 1: Because both cases discuss the FRE, discuss it first; then, move to the
smaller Rules of Professional Conduct argument second.
1. FRE does not support
o Overview of law; presumed privileged; elements
o Should adopt probable cause standard (meets policy; similar to Sawyer)
o Under probable cause, no evidence this was crime/fraud or sought counsel to further
crime/fraud.
o Even under the “some evidence” standard, the prosecutor cannot meet the burden
(distinguishable from Robb).
2. Rules of Professional Conduct does not support
o Overview of law
o No reasonable certainty
10 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
CHAPTER 6: PHOENIX CORPORATION V. BIOGENESIS, INC.
Editor's Note 3: This chapter requires use of Phoenix Corporation v.
Biogenesis, Inc., February 2009 MPT 1. Please complete the MPT before
continuing with this chapter.
A. Instruction Sheet
B. Assignment Memo
• Tone: __________________________________________________________
• Audience: __________________________________
• No statement of facts
C. Library
1. Rule 4.4 of FRPC—adopted in 2002
o IF an attorney receives a document relating to representation and knows/reasonably should
know that it was sent inadvertently,
o THEN must promptly ______________________________________________.
Comment 1: Response to Indigo; must be ______________________________________
and inadvertent; attorney-client privilege is irrelevant
Comment 2: Indigo was NOT adopted—must just ______________________
• Indigo holding—notify, don’t examine, await sender’s instruction
Comment 3: rule does not apply to “no authorization” situations (different from
inadvertent)
• Mead gives rule—review, notify, and abide by the opposing attorney’s instructions
or refrain until court instruction
• But the court did not create a rule for this
2. Indigo v. Luna Motors—Franklin, 1998, pro-party seeking ______________________________
o Attorney disqualified due to ________________________________________ doc when the
attorney examined it, failed to notify, used to impeach, and refused to return.
o Klein case: disqualification is an inherent power focusing on ethical standards
Paramount concern is public trust in justice and integrity.
o When privileged doc clearly inadvertently sent, should refrain, notify, and await instruction.
Here, attorney failed to do so.
o Disqualification proper if incurable prejudice (Klein)—in Indigo, obtained damaging
admissions, can capitalize on contents at trial, and can perhaps help obtain similar evidence.
Multistate Performance Test (MPT) | © 2019 Themis Bar Review, LLC | 11
3. Mead v. Conley Machinery Co.—Franklin, 1999, pro-party NOT seeking disqualification
o A no _____________________________________________________ case (not an
inadvertent disclosure case)
o Can disqualify even if there is no rule violation
o Policy: attorney-client privilege encourages fully developed cases
o Holding: if receives and knows, then should limit review to determining how to proceed,
notify, abide or refrain until court instruction.
o Six factors for disqualification:
1) Knowledge of privilege
2) Promptness of notice
3) Extent of review
4) Significance/curing prejudice
5) Opposing party’s fault
6) Opposing party prejudice via disqualification
o Application in Mead: no prejudice (can exclude document), harm from counsel’s knowledge
is speculative, and high prejudice for opposing party to lose an attorney who has developed
a trial strategy.
D. Library with Facts
1. Rule 4.4 of FRPC—adopted in 2002
o IF an attorney receives a document relating to representation and knows or reasonably
should know it was sent inadvertently
Client concedes it received a privileged letter
But, it was not ________________________________________________
o THEN promptly notify the sender
• Did not notify
• But, did not get much chance to, as opponent found out same day at lunch—seems
could still have given prompt notice that day
Comment 3: Rule 4.4 does not apply to disclosure without authorization
• Mead gives the rule—review, notify, abide or refrain until court instruction
• But court did not create rule
• Because this is an authorization case, Rule 4.4 does not address this issue
• Is court implying no rule, or rule in Mead is OK?
12 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
CHAPTER 7: PHOENIX CORPORATION V. BIOGENESIS, INC. (CONT.)
A. Library with Facts (cont.)
1. Indigo v. Luna Motors—Franklin, 1998, pro-party seeking disqualification
o Attorney disqualified due to inadvertent doc when: examined it, failed to notify, used to
impeach, refused to return
o When privileged doc clearly inadvertently sent, should refrain, notify, await instruction
Our case is an authorization case, not an inadvertent document case, and is therefore
factually distinguishable.
Rule 4.4 did not _____________________________________ Indigo.
2. Mead v. Conley Machinery Co.—Franklin, 1999, pro-party NOT seeking disqualification
o A “no authorization” case (not an inadvertent disclosure case)
Is case still valid if court “declined to adopt a rule” in this context? Or, was court
satisfied with Mead rule so did not adopt a different rule?
o Can disqualify even if no ethical violation—interests of justice, including guarantee of a fair
trial
Here, a fair trial can occur, as court can ________________________________ the
letter, and no ethical violation means limited damage to the interests of justice.
o If receives and knows, then should limit review to determining how to proceed, notify, abide
or refrain until court instruction.
Reviewed the short letter, didn’t have much chance to notify (few hours?), refused to
return (but can refrain until court instruction)
o Six factors for disqualification:
1) Knowledge of privilege
2) Promptness of notice
3) Extent of review
4) Significance/curing prejudice
5) Opposing party’s fault
6) Opposing party prejudice via disqualification
o Application in Mead: no prejudice (can exclude), harm from counsel’s knowledge is
speculative, and high prejudice for opposing party to lose counsel who developed trial
strategy
Against: We knew (1), didn’t notify (2) (but minimal time to notify), reviewed (3) (but
short letter), and opponent not at fault (5) (unauthorized)
Multistate Performance Test (MPT) | © 2019 Themis Bar Review, LLC | 13
For: Under (4) minimal significance and can be cured by excluding—we didn’t use this
information yet in deposition and harm is speculative.
For: Under (6), huge prejudice—six years of prep, trial in a month, counsel developed
trial strategy, “tremendous costs” to client.
Overall: Two factors in our favor, four factors against us
B. Attack Outline
• Memo format
• Follow opponent’s format?
• Structure:
1. Concede it’s protected
2. No ethical violation under the rule (not inadvertent), Indigo (distinguishable and 4.4 didn’t
adopt it), and Mead (we followed its mandates and may not be good law)
3. No disqualification, as our two factors outweigh their four
BEST OF LUCK!
[END OF HANDOUT]
14 | © 2019 Themis Bar Review, LLC | Multistate Performance Test (MPT)
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