MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on Civil Procedure MBE tips. We started this MBE series months ago and it was so popular that we are continuing it each bar exam administration.
You will see 25 scored Civil Procedure MBE questions on the Multistate Bar Exam.
Note that we have posted several posts that focus on a specific multiple-choice question that many students answer incorrectly. If you can master thesequestions, 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 post covers one highly-tested area of substantive law as well as an important MBE strategy.
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 Civil Procedure answer as well as read more about our MBE tip of the day. This question tests a subject that makes a lot of students nervous!
Civil Procedure MBE Question
A soccer player brought a battery action against a player on the opposing soccer team. The soccer player presented evidence that the opposing player kicked the soccer player in the shin when the soccer player was trying to score a goal. The opposing player presented evidence that he was merely trying to get the ball from the soccer player and the kick to the shin was an accident. Further, the opposing player testified that the game was “played rough” in their city and the soccer player consented to being kicked regardless. The opposing player also presented a witness who testified that several players are injured over the course of a typical soccer game in that city and that games have been played that way for several years in that particular area. The soccer player did not cross-examine the witness.
After resting its case, the opposing player moved for judgment as a matter of law. Should the court grant the motion?
(A) Yes, because the soccer player did not cross-examine the witness who testified regarding custom in the city.
(B) Yes, because the judge can, as a matter of law, decide cases when the judge believes the evidence substantially favors one party.
(C) No, because whether the kick was an accident and whether the soccer player consented to it are questions of fact for the jury.
(D) No, because a motion for judgment as a matter of law must first be made at the close of the plaintiff’s case-in-chief rather than for the first time at the end of trial.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to the Civil Procedure MBE Question & Civil Procedure MBE Tips
Common Mistake: Students panic when they see judgments as a matter of law!
Subject: Civil Procedure
Legal Issue: Should the judgment be granted as a matter of law?
Legal Rule and Analysis: Judgment as a matter of law is only appropriate if the court determines that the evidence is legally insufficient to allow the jury to decide the case. In this case, the jury could find that the kick was an accident or that the man impliedly consented to being kicked. Or it may find that the kick was intentional and that the man did not consent. So, judgment as a matter of law is not appropriate because the evidence isn’t “legally insufficient” on either side.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: (C) is correct. (A) is incorrect because the witness’s testimony does not establish in and of itself that the man consented to the kick that occurred. The jury will decide what the custom of the game was and if the man consented. (B) is incorrect because it states the wrong standard and arrives at the incorrect conclusion. The judge can only decide cases when no reasonable jury could find in favor of the other side. Just because the judge believes that the evidence “substantially favors” one side is not enough. There must be legally insufficient evidence for the jury to decide. (D) is incorrect because a motion for judgment as a matter of law can be made at any point before the case is submitted to the jury.
MBE Tip: Civil Procedure intimidates students — especially students who do not have practical experience outside of law school as it truly is “foreign territory.” Civil procedure is, in some ways, however an easier subject to learn than some of the MBE subjects because it is “flatter” — if you memorize the rules you can get many of them right!
Civil Procedure tends to test details and nuances of judgments, service of process, venue, and other areas. One of the best Civil Procedure MBE tips is to make sure you are super familiar with the black letter law A “general knowledge” of Civil Procedure law will not be enough to answer these nuanced questions correctly. If you are struggling with certain kinds of Civil Procedure questions, we recommend you make chart of the rules for that set of laws. Seeing the rules in one place will be very helpful. It is also helpful to think of mnemonics, or understand the theory behind the rules so that you better understand the rule itself.
Key Takeaways for the day:
Takeaway for the Law: Judgment as a matter of law is only appropriate if the court determines that the evidence is legally insufficient to allow the jury to decide the case. In this case, the jury could find that the kick was an accident or that the man impliedly consented to being kicked. Or it may find that the kick was intentional and that the man did not consent. So, judgment as a matter of law is not appropriate because the evidence isn’t “legally insufficient” on either side.
Civil Procedure MBE Tips: Civil Procedure tends to test details and nuances of judgments, service of process, venue, and other areas. It is best to be familiar with the black letter rule. A “general knowledge” of Civil Procedure law will not be enough to answer these nuanced questions correctly. If you are struggling with certain kinds of Civil Procedure questions, we recommend you make chart of the rules for that set of laws. Seeing the rules in one place will be very helpful. It is also helpful to think of mnemonics, or understand the theory behind the rules so that you better understand the rule itself.
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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