II. Determine the Scope & Format of Your Bar Exam

This sounds really simple, and it is, but don’t overlook it. By scope, we mean the subjects tested on your bar exam and what portions of the exam those subjects are fair game for bar examiners. You need to determine the subjects you will be responsible for on the exam and whether you will need to learn the state distinctions for certain subjects, usually the Multistate Bar Exam (MBE) subjects, for bar essay purposes. Some states will want you to know both “Multistate or general law” and applicable state law for essay purposes. New York, for example, is one of those states. Other states, like California, expect you to know a limited number of state distinctions (Evidence and Civil Procedure) and test “Multistate or general law” without regard to state law for the other MBE subject areas. Most states will succinctly state in a sentence or two the subjects, and their applicability on different portions of the exam, you will be expected to know on the bar exam.

Besides the scope of the bar exam, make sure you clearly understand the format of the bar exam. Almost every bar exam contains written essays and a multiple choice exam. Increasingly, states are also utilizing Performance Tests as a component of their bar exams.

A. Bar Exam Essays

Bar exam essays are similar to the essays and fact patterns you might find on a final examination in law school. Bar exam essays will not, however, ask you about the policy aspects of the law. Bar examiners are simply striving to see if you know the applicable law raised by a set of facts and your analysis of that law applied to the facts given. Typically, the essay portion of the bar exam will cover a set number of subjects prescribed by board examiners. The only difference in essay scope from state to state are the subjects tested. For instance, one of Wyoming’s subjects is Water Law. Some states utilize the Multistate Essay Exam (MEE), which is up to a nine essay examination covering ten subjects administered by the National Conference of Board Examiners (NCBEX). Most jurisdictions, however, do not administer all nine MEE questions and select several questions from the available nine questions (usually six). The subjects tested on the MEE include: Business Associations (Agency and Partnership; Corporations and Limited Liability Companies), Conflict of Laws, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Family Law, Federal Civil Procedure, Real Property, Torts, Trusts and Estates (Decedents’ Estates; Trusts and Future Interests), and Uniform Commercial Code (Negotiable Instruments (Commercial Paper); Secured Transactions). On the MEE, the source of the law tested can vary from jurisdiction to jurisdiction. As the NCBEX states: “Some jurisdictions instruct applicants to answer MEE questions according to the law of the jurisdiction. Absent such an instruction, you should answer the questions by applying fundamental legal principles rather than local case or local statutory law.” So, if you are taking the MEE, you should find out whether your bar exam tests general law or state-specific law for purposes of the MEE. For many states, the MEE essays are the only essays on the bar exam.

B. Bar Exam Multiple Choice Questions

Besides essays, you will most likely also take the Multistate Bar Exam (MBE) as part of your bar exam. Some states, like New York, also provide state-specific multiple choice in addition to the MBE. The MBE is two three-hour multiple choice tests of 100 questions each, 200 total questions, testing six subjects: Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. Typically, the MBE is administered on the second day of your bar exam (the last Wednesdays in February and July) with an AM and PM portion. Multistate law for purposes of the MBE requires you to apply, according to the NCBEX, “fundamental legal principles rather than local case or statutory law. A given question may indicate the applicable statute, theory of liability, or comparable principle of law.” The scope of the MBE is made very clear as the NCBEX provides definitive Subject Matter Outlines for each of the six MBE subjects.

C. Performance Tests

Increasingly, state bar examiners are including Performance Tests on bar exams. Performance tests can be either state-administered or the Multistate Performance Test (MPT). Both versions of these performance tests, either state-administered or the MPT, often mirror each other in length and format (except for California, which administers two 3-hour performance tests). Each MPT consists of a 90-minute skill question covering legal analysis, fact analysis, problem solving, resolution of ethical dilemmas, organization and management of a lawyering task, and communication. The MPT is designed to test your ability to use fundamental lawyering skills in a realistic situation. Each test evaluates your ability to complete a task which a beginning lawyer should be able to accomplish.

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 applicant is to complete is described in a memorandum from a supervising attorney. The File might also include, for example, transcripts of interviews, depositions, hearings or trials, pleadings, correspondence, client documents, contracts, newspaper articles, medical records, police reports, and 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 supervising attorney’s version of events may be incomplete or unreliable. You will be expected to recognize when facts are inconsistent or missing and are expected to identify sources of additional facts. The Library consists of cases, statutes, regulations and rules, some of which may not be relevant to the assigned lawyering task.

The MPT does not test substantive law, as the Library provides the universe of applicable law sufficient to complete the task. The assignment itself can include: 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.

D. A Note on the Uniform Bar Examination (UBE)

The UBE is administered by the NCBE and has been adopted by 10 jurisdictions. The exam consists of the MEE, two MPTs, and the MBE. Prior to the administration of the first UBE in February 2011, many jurisdictions already included all 3 multistate exams in their respective bar exams. Likewise, as of today, several jurisdictions still include the MEE, MPT, and MBE in their bar exam without formally adopting the UBE. The purported benefit of the UBE is the portability of the exam result, as adopting jurisdictions will accept and permit transfers of UBE scores to other UBE jurisdictions. Since the UBE is truly a uniform exam, with no state-specific content tested, UBE jurisdictions may elect bar applicants to complete a state-specific educational component or similar state-specific exam in addition to the UBE.

Although relatively easy to complete, determining the scope and format of your bar exam should provide a loud wake-up call as to the extent and amount of information you will need to learn and memorize to be well-prepared for your bar exam. Additionally, knowing the format will allow you to use or buy exam practice aids suitable to your particular bar exam.

Please note, you can obtain the free, full version in pdf format via digital download here.