Civil Procedure on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Civil Procedure on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching a Civil Procedure Multistate Essay Exam question.
Note that Civil Procedure is by far the most tested topic on the Multistate Essay Exam. It has been tested repeatedly since the 1990’s and up until recently, has been a “guaranteed” Multistate Essay Exam subject. Further, the Examiners often test the same issues semi-frequently in Civil Procedure MEE questions and it is worth it to be aware of what these issues are.
In this post, we give you tips for approaching Civil Procedure on the Multistate Essay Exam and we reveal some of the highly tested issues in Civil Procedure Multistate Essay Exam questions.
Civil Procedure on the Multistate Essay Exam
1. First, be aware of how Civil Procedure is tested
Civil Procedure used to be a guaranteed subject on the Multistate Essay Exam. It appeared virtually every year. Then, on occasion, it would not appear (see frequency chart).
This is not shocking to us because Civil Procedure was added as a Multistate Bar Exam (MBE) subject in February 2015. We suspect that the National Conference of Bar Examiners (NCBE) feels more comfortable not including Civil Procedure on the Multistate Essay Exam now since it is tested on the MBE. Thus, we expect to see it tested less and less. However, you should still be very well versed in Civil Procedure. Not only will you see 25 scored MBE questions covering the subject but it is still the most highly tested Multistate Essay Exam subject, even if it is tested a little less than it used to be.
Civil Procedure generally is tested on its own but occasionally it is combined with Conflict of Laws.
2. Be aware of the highly tested Civil Procedure issues
The Examiners tend to test several of the same issues repeatedly in Civil Procedure questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Civil Procedure Multistate Essay Exam issues include:
Subject matter jurisdiction (SMJ)
Subject matter jurisdiction (SMJ) is by far the Examiners’ favorite Civil Procedure Multistate Essay Exam topic to test. The Examiners especially like to test diversity jurisdiction and supplemental jurisdiction (with federal question jurisdiction and removal being tested slightly less).
- Diversity jurisdiction: This has two requirements: (1) there must be complete diversity of citizenship and (2) the amount in controversy must be over $75,000. Rules of domicile are tested with diversity jurisdiction. Remember to look to where a party is domiciled at the time the lawsuit is filed. That is the key moment to determine domicile for diversity jurisdiction purposes.
- Federal question: The federal question must appear on the face of the plaintiff’s well-plead complaint. When federal question jurisdiction is tested, it tends to be tested with personal jurisdiction.
- Supplemental jurisdiction: this is an issue when one wants to tack on a claim that isn’t otherwise covered by diversity or federal question jurisdiction.
Personal jurisdiction (PJ)
Personal jurisdiction (PJ) is not tested as often as many examinees think it is. It is tested about once every five years. Here are some tips for answering PJ questions on the Multistate Essay Exam:
- If you see a PJ issue on your essay, make sure to discuss general jurisdiction and then discuss specific jurisdiction. Give a brief overview of both (even if specific jurisdiction is tested, which it normally is). Giving an overview of both will make your answer appear thorough.
- Remember to mention that personal jurisdiction stems from the Fourteenth Amendment Due Process Clause.
- Use key vocabulary if specific jurisdiction is tested, like “minimum contacts” and “purposeful availment.”
Venue is another topic that regularly appears on Civil Procedure Multistate Essay Exam questions.
- General rule: Venue is proper in a district where (1) any defendant resides if all defendants reside in the same state, (2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or (3) a substantial part of property that is subject to the action is situated. (There are also narrow fallback rules which, so far, have not been emphasized on the Multistate Essay Exam.)
- Transfer to a more appropriate forum: This is tested frequently when venue is tested. The federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have subject matter jurisdiction and personal jurisdiction. The court will apply the law of the transferor forum. (Since the case was properly brought in the transferor forum, it makes sense that the court will apply the law of the transferor forum.)
A few other issues that appear in Civil Procedure Multistate Essay Exam questions are the following:
- Service of process
- Discovery issues
- Temporary restraining orders (TRO) and preliminary injunctions
- Claim and issue preclusion
3. Learn Civil Procedure vocabulary
There are some words that graders will be looking for in your essays. If you can bold some of these key words, you will maximize your points! You should also be familiar with some key vocabulary terms that you will see over and over again on Civil Procedure Multistate Essay Exam and MBE questions. Here, we give you some of the key Civil Procedure vocabulary words that you should be aware of:
- When personal jurisdiction is tested, use words like minimum contacts and purposeful availment.
- When federal question jurisdiction is tested, state that the federal question must appear on the face of the plaintiff’s well-plead complaint.
- Know the difference between removal (when a defendant seeks to move a case from state to federal court) and remand (when a federal court sends a case back to state court).
- Be aware of the difference between transfer to a more appropriate forum (this is what tends to be tested more heavily on the MEE, and this is appropriate when the case has not been filed in the wrong venue—yet there is still a better venue to file it in) and transfer to a proper venue (this tends to not be tested on the MEE, but this is an appropriate motion to file when the case was filed in the wrong venue to begin with).
- If summary judgment is an issue, use key terms such as “there must be no genuine issue as to any material fact.” Also, remember to use the terms moving party (the one that brings the motion) and nonmoving party (the one that must respond to the motion if the moving party meets its burden of production).
- Understand the differences between a counterclaim (defendant suing plaintiff), cross-claim (defendant suing defendant, or plaintiff suing plaintiff), and impleader claim (defendant bringing a claim against a new party, claiming that the new defendant is liable to it for some or all of the harm).
- When supplemental jurisdiction is an issue and a party is trying to add a claim that otherwise may not have a jurisdictional basis, use the words common nucleus of operative fact.
4. Get in the habit of connecting every dot for the grader using IRAC
To make sure you connect every dot for the grader, get in the habit of using IRAC. Make sure your rule statements start from general and go to specific. And make sure to state the general rule before applying exceptions, especially if broader principles of Civil Procedure are tested (e.g., jurisdiction, venue). Use the following format:
- Rule (general rule / specific rule, then any relevant exceptions)
For example, if you see personal jurisdiction tested, after identifying the issue, you should say things like:
- Personal jurisdiction arises from the Due Process Clause of the Fourteenth Amendment.
- The U.S. Constitution and state long-arm statute must be satisfied.
- Give a brief overview of general and specific jurisdiction before applying the law to the facts and concluding.
Some students just jump in and make conclusory statements like “jurisdiction isn’t appropriate because there are no minimum contacts.” These students miss out on valuable points because they do not give an overview of the basic principles of law (even though they appear to know them). Remember to connect every single dot for the grader! This will maximize your points on Civil Procedure on the Multistate Essay Exam!
Practice is critical if you want to master Civil Procedure on the Multistate Essay Exam. As an added bonus, you may also see your MBE score improve if you write answers to Civil Procedure Multistate Essay Exam questions.
Here are some links to (free) Civil Procedure questions and NCBE point sheets. (If you would like to purchase a book of Civil Procedure Multistate Essay Exam questions and NCBE point sheets from 2000 to the present, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- Feb 2013 MEE: this covers issues of preclusion.
- July 2012 MEE: summary judgment (not tested a lot recently but has been tested consistently in the past).
- July 2010 MEE: this covers personal jurisdiction and subject matter jurisdiction.
- July 2009 MEE: this covers removal and joinder, as well as jurisdiction issues.
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