MPT Bar Exam Tips on Using Case Law
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Following are some of our tips for using the case law on the MPT. They come from Perform Your Best on the Bar Exam Performance Test (MPT).
Some Tips for Using Case Law on the MPT from Perform Your Best
In the Multistate Performance Test (MPT) the bar examiners aim to “evaluate your ability to handle a select number of legal authorities in the context of a factual problem involving a client.” Legal authorities in the MPT Library are usually either statutes or cases. The Library may also include selections from hornbooks, official commentaries, or even newspapers or web sites.
After you read the facts, and before you read the cases, read the statutes. Cases usually interpret statutes, rather than the other way around. If the statutes are too long or too complicated for close reading, skim to get the objectives. If possible, study the key statute, and if there are elements, number them.
Next, survey the cases. Using the cases on the MPT is easier than doing case research in the real world. On the MPT, the Library component of the task gives you the only case law you will need. You cannot possibly miss an important case on the MPT. The bar examiners have given you the case law. If you are using the MPT system in Perform Your Best on the Bar Exam Performance Test (MPT), you will be reading and analyzing the case law while making your MPT-MatrixTM.
Decide Whether Each Case You Wish to Use is Mandatory or Persuasive Authority
Some cases you will distinguish. They do not apply to your facts. Those cases have no authority for your argument.
When you find cases you wish to use, on the other hand, decide on the weight of each case as authority. The two key words are mandatory and persuasive. The main factor is which court authored the decision. You will recall that, all other things being equal, a decision from a higher court in the same jurisdiction as your client’s case is probably mandatory authority. Lower courts in that jurisdiction must follow it. Likewise, the federal constitution is mandatory law in every jurisdiction.
Decisions of courts in other states, of federal courts applying state cases or statutes in other states, and of lower courts or courts on the same level in the same state, can be persuasive, but not mandatory. A federal or state court may choose to employ a decision as persuasive for any of a number of reasons, including factual similarity or compelling reasoning.
The year the case was decided is important. The MPT Library may not present the cases in chronological order, so read carefully. Be careful to check on whether a case has been overruled. Unlike Westlaw or Lexis-Nexis, the MPT gives you no red or yellow flag to tell you that the case is no longer good law. The examiners do give you enough information, however, so that if you know what to look for, you can decide for yourself.
In determining the weight of authority, keep in mind that the examiners have not only created the fact pattern in the File, but they have also created the State of Franklin, all of its case law, and the fictitious Fifteenth Circuit of the United States, where Franklin is located.
Do not confuse the hierarchy of courts in your own state with the hierarchy of courts in the state of Franklin. In Franklin, the trial court of general jurisdiction is the District Court, the intermediate appellate court is the Court of Appeal, and the highest court is the Supreme Court. In the New York State Unified Court System, for example, the highest court is the Court of Appeals, the Appellate Division is intermediate, and the New York Supreme Court is a trial court.
A word of warning about familiar-seeming cases. If you notice that a case resembles a case you already know, do not assume that the two cases are the same. It is not even fair to the graders to call this a trap because they warned you in the MPT instructions that you should not assume that cases in the MPT are the same as cases you know. The case law in the MPT Library can be “real, modified, or written solely” for the purposes of the MPT task.
Since the MPT may concern an area of law you have never studied, you must pay especially close attention to the weight of authority. The question is whether the case is mandatory or persuasive authority, or no authority at all.
You Can Usually Find the Holding of the Case in the First Two or Last Two Paragraphs
You will usually find the holding of the case in the first two paragraphs, the last two paragraphs, or both. It is usually safe to skim the discussion in between. But you must pay careful attention to other cases cited and to the footnotes. The cited cases may themselves provide authority for your arguments.
Whether a case is mandatory or persuasive will dictate the weight of the authority. When you determine and utilize the weight of the authorities provided, you demonstrate to the graders that you understand the hierarchy of the law. You will use the case law appropriately in your MPT work product.
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