Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on civil procedure.
You will see 25 scored civil procedure MBE questions on the Multistate Bar Exam. In this post, we will review a civil procedure question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
MBE Tip of the Day Instructions:
Do your best to answer this civil procedure MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Civil Procedure MBE Question
A restaurant headquartered in State A was the subject of multiple premises liability suits stemming from a spill on the floor that caused multiple injuries. Plaintiff 1 sued the restaurant in a state court located in State A for negligence. In that suit, it was determined after a full litigation that the employees of the corporation were aware of a spill on the floor and did have a duty to warn of the spill. Following a full trial, Plaintiff 1 succeeded in her suit against the restaurant. The restaurant filed an appeal, and that appeal is still pending. Plaintiff 2 filed suit against the restaurant in federal court located in State B. Plaintiff 2 sought to preclude the restaurant from asserting that it did not owe a duty to warn of the spill under collateral estoppel. The law of State A allows for the use of offensive non-mutual collateral estoppel. The law of State B prohibits the use of offensive non-mutual collateral estoppel. Federal law allows for the use of collateral estoppel as justice permits. The law in all three jurisdictions states that a judgment is final until reversed or otherwise modified. Assume jurisdiction and venue are proper.
What should the court do?
(A) Allow the restaurant to litigate the issue of its duty to warn because the federal court must apply the law of the state in which it sits.
(B) Evaluate whether justice would allow the use of non-mutual collateral estoppel because the federal law must apply its own law on procedural issues.
(C) Prohibit the restaurant from litigating the issue of its duty to warn because the federal court must apply the law of State A.
(D) Delay the case until the appeal is decided.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Civil Procedure MBE Question
Subject: Civil Procedure
Legal Issue: Collateral Estoppel and the Full Faith and Credit Clause
Legal Rule and Analysis: Under the Full Faith and Credit clause, courts must give the same effect to a judgment that the court that issued it would. That means that when we consider a res judicata or collateral estoppel issue, we must consider whether the court issuing the judgment would give a preclusive effect to the judgment or an issue decided therein. The elements of collateral estoppel are: (1) the issue in the second case must be the same as the first; (2) the issue must have been actually litigated; (3) the issue was actually decided; and (4) the decision must have been necessary to the court’s judgment.
In this case, since the original case was decided in State A, whether it has a preclusive effect or not must be evaluated under the law of State A. Since State A allows for the use of non-mutual offensive collateral estoppel (e.g. collateral estoppel used against a different, i.e., nonmutual, party in an offensive way–i.e., it is the plaintiff rather than the defendant using the doctrine), the restaurant will be precluded from litigating the issue of whether or not it owed a duty to warn in the current federal court case if all of the elements of collateral estoppel are met. First, the issue in the second case is the same as the first: whether the restaurant owed a duty to warn of the spill on the floor. Second, the facts tell us that the case between Plaintiff 1 and the restaurant actually litigated this issue. Third, the facts tell us that the issue was actually decided: the restaurant did owe a duty to warn. Fourth, the facts tell us that the determination was essential to the State A court’s decision to rule in Plaintiff 1’s favor. Note that this is “nonmutual” collateral estoppel since the parties are different. It is “offensive” since it is the plaintiff using it.
Thus, all of the elements of collateral estoppel are met and the federal court should prohibit the restaurant from litigating the issue of whether or not it owed a duty to warn.
Conclusion: The federal court should prohibit the restaurant from litigating the issue of whether it owed a duty to warn because it must follow the law of State A.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (C) is therefore correct. (A) is incorrect because the Full Faith and Credit clause requires a court to give a judgment the same preclusive effect as the court rendering the judgment would. Therefore the federal court would apply State A’s law on collateral estoppel. (B) is incorrect for the same reason as it improperly characterizes what law the federal court should apply. (D) is incorrect because there is no basis in law for the court to wait for the original case’s appeal to proceed. The State A judgment was a final judgment on the merits and all of the elements for collateral estoppel are met. Since State A allows for the use of non-mutual collateral estoppel, that doctrine should be applied.
MBE Tip: Civil procedure can be the most difficult MBE subject to prepare for given how new to the exam it is. Most courses and practice books don’t offer any NCBE-released real MBE civil procedure questions, namely because they didn’t exist. It is critical that you are practicing with real MBE questions so that you are familiar with exactly the style of question you will see on exam day. Since civil procedure was just recently added, bar exam prep companies have very little guidance to go off of when developing study questions. You might find that a lot of the civil procedure questions out there are very difficult or rather obscure. Try not to get too concerned with your results on those! Luckily, the NCBE recently released new practice questions, including civil procedure ones! Since these questions were written by the NCBE itself, they are much more representative of what you are going to see on the exam than what you’ll find in practice books. You can find FREE NCBE released Civil Procedure questions here. And JD Advising is selling additional questions here!
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: Under the Full Faith and Credit clause, courts must give the same effect to a judgment that the court that issued it would.
MBE Tip: Practicing with NCBE-released MBE questions is critical, and they just released 100 new ones, including civil procedure!
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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