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MS Bar: Multistate Performance Test Skills

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Multistate Performance Test Skills

The Multistate Performance Test gives you a file and a library and asks for a written work product, usually an objective memorandum or a persuasive brief, sometimes a letter, contract provision, or discovery plan. Grading turns on following instructions, using the file, applying only the library's authorities, and writing cleanly under time pressure.

Approach

  • Read the instructions first and identify the precise task, the audience, and any length or format limits. Then read the file for facts, and the library for rules.
  • Extract a workable rule from the cases and statutes; where two cases conflict, synthesize a rule that reconciles them by facts or posture.
  • Draft with headings: Question Presented, Brief Answer, Statement of Facts, Discussion, Conclusion for an objective memo; for a brief, use point headings that are complete sentences.
  • In the discussion, use rule, explanation, application. Apply every material fact; where facts conflict, resolve them as the instructions require.

Worked example

A library contains a statute requiring a written agreement for a land sale and a case enforcing an oral agreement where the buyer took possession and paid part of the price. The client's oral agreement is likely enforceable under the part-performance exception, because the client paid $20,000 and took possession. Distinguish the second case, which refused enforcement where the buyer had not taken possession.

Traps

Relying on law the library does not contain; answering a question the instructions did not ask; summarizing facts instead of applying them; ignoring adverse authority instead of distinguishing it; running out of time before writing the conclusion.