How to Approach an MEE Civil Procedure Question

Hey, everybody. So we've got a great lecture for you today on how to approach civil procedure questions that pop up on the MEE. I should say at the start, if you haven't already taken a listen to the lectures about general MEE advice, I would suggest that you put me on hold and take a listen to them first. Those are going to be really helpful in providing an overview for how you'll want to tackle the questions generally across subject matters.

And this conversation that we're going to have here, of course, is meant to give you the inside scoop on those civ pro questions specifically. Now, at this point, I'm really tempted to say that obviously we love civil procedure the most, but I'm not going to do it. We'll just know that that's what we're all thinking.

Overview

With that in mind, let's talk about civ pro and the MEE. So I've done a little digging on your behalf. Specifically, I reviewed nearly 20 exams, all from the last decade, to see, first, what kinds of civ pro questions were asked on the MEE, and then second, how they were asked. Like were there certain questions that tended to be asked together based upon the same fact pattern, and so on and so forth. Based on that review, I'm first going to share some observations about civ pro questions on the MEE.

So that's going to be beginning with the format of the questions and then turning to the substance of those questions. And then with that knowledge in hand, we're going to turn to how this data can inform our preparation in certain areas to focus on when we're studying for the bar exam. And then, finally, we'll talk at the very end about what to keep in mind when writing out your answer. Sound good? Awesome.

Format

Let's begin with getting the lay of the land, starting off with the format of civ pro questions on the MEE. Most civ pro questions on the MEE are what we might call straight-up civ pro questions. That is, the entire question is all about civil procedure. That said, you should be aware that a few involved another subject, something that we might think of as civ pro adjacent.

For example, one question was mostly civil procedure focused, but then it included just a little bit of con law at the end, by having one component address standing. Similarly, another question was primarily focused on civil procedure and then tacked on a prompt about conflicts of law. But again, for the most part, you can expect that the civ pro questions on the MEE will be just about civil procedure.

Within those questions, most have multiple parts, often two or three, and it's not uncommon to see a question contain a subpart like 2a and 2b. And then importantly, I would say most of these questions are covering several different topics across civil procedure. So we're going to be discussing substance in a moment, that is, the kinds of questions that tended to come up.

But just to provide a concrete example now, it's not unusual to have a question that gives a good bit of background in a fact pattern about the parties, say, in the event that gave rise to the lawsuit, and then to have a question about subject matter jurisdiction, say, followed by one about personal jurisdiction, and then followed by one about, say, improper venue.

You should be aware that not all questions follow this pattern. So, for example, one of the MEE questions that we're going to be tackling together was pretty exclusively about Rule 11. You should keep in mind that it's always possible that you could have an MEE question that's really asking us to do a deep dive on a single subject, but the far more common approach on the MEE is to address several different topics with one fact pattern.

Now, still on the subject of how questions are presented, something that I think is great about civil procedure is that most of the time, the questions, as I like to think about it, announce themselves, as in, the bar examiners are not trying to hide the ball from us. For example, we will know right away that we are being asked to evaluate, say, whether a court can exercise personal jurisdiction over a particular defendant.

Now, some of the time we're going to be asked this type of question directly. So, for example, I'm just pulling now from a question that came up in one of the 2010 bar exams, we see the following: May the United States district court for the district of State B exercise personal jurisdiction over the defendant? Explain.

Pretty straightforward. In contrast to that, sometimes the fact pattern will have a party filing a motion, say, a motion to dismiss for lack of personal jurisdiction, and then the prompt will tell us to address whether the motion should be granted. So it's basically the same question, all about whether there would be personal jurisdiction over a given defendant, just coming to us in a slightly different way.

But the key point is really good news for us. That is, for the most part, with civ pro questions, we know exactly what we're being asked by the bar examiners to address. Having said all of that, there are just a few exceptions to this general rule, which came up in this set of bar exams, and I just want to give you a heads-up about them.

One exception came up with the Erie doctrine. So within the set of nearly 20 exams, there were two different Erie questions that were raised, and neither of them use the word Erie in the prompt. So, for example, one asked, would a change of venue affect the law to be applied in resolving this particular issue?

Notice what's going on there. That question was actually setting up a potential conflict between a state law and a federal law. That's what you would know if you'd read that fact pattern. But here's the key point: as you can see from what I've just said, it didn't specifically say in a really loud voice or with bright flashing lights, "This is an Erie question." So you'll just want to be sure that any time you're asked about whether a given law will apply, you're on the lookout for a possible Erie issue.

There's one more topic like this that I want to flag for you, and that has to do with compulsory counterclaims coming out of Rule 13. One civ pro MEE question, which we're going to be covering together later on, asked if a party might be precluded from bringing a certain claim.

When we see the word "precluded," I think it's pretty natural to think about claim preclusion and issue preclusion, but you just want to keep in the back of your mind that it's also helpful to think about compulsory counterclaims. That is, if the claim that the party is trying to bring now would have been considered a compulsory counterclaim had they brought it in an earlier lawsuit, well then, unfortunately for that party, they are precluded from bringing it now.

So that's just one more pro tip. If you see a question about preclusion, keep in mind that there could be a Rule 13 compulsory counterclaim issue lurking beneath the surface. But again, with those exceptions out of the way, for the most part, when it comes to civ pro questions on the MEE, you are told exactly what you should address, and that is a beautiful thing.

Substance

Now that we've addressed the format of the questions and how they might be presented to you, let's turn to the substance of those questions, that is, what topics tend to come up. As we know, civil procedure is a pretty broad field. It covers a lot of different topics, but happily, I think of those topics as being grounded, really, within a few different categories.

First, we have all of the topics that relate to the federal rules, and this can cover everything from what a complaint must contain, to how it can be amended, to when a case can be dismissed for failing to state a claim, to when it's appropriate to grant a motion for summary judgment or judgment as a matter of law, and so on and so on and so on.

Second, we have a series of much more expansive subjects that are tied to the Constitution. So, in this category, I would say we have personal jurisdiction, which, of course, includes specific jurisdiction and general jurisdiction; we have notice, which is tied to the Due Process Clause; and then we have subject matter jurisdiction, which includes diversity jurisdiction and federal question jurisdiction.

And then the final category that we can think of here pretty much includes everything else, namely Erie and preclusion. If you just put yourself in the shoes of the bar examiners for a minute, you can see that that first category that we were just talking about, that is, topics within the federal rules, really lend themselves well to multiple-choice questions.

That's because you can have pretty short fact patterns that can then lead to a question about, say, the relevant standard for a rule or something specific within the rule, like the relevant length of time in which you have to file a motion, something like that. Now, by that same token, it's not surprising that the subjects that are in those two other categories, for example, subject matter jurisdiction or personal jurisdiction or preclusion, would lend themselves to being tested in a longer essay format.

Part of that's because they require oftentimes a longer fact pattern to set up the questions to begin with. Just think about subject matter jurisdiction and personal jurisdiction. You're going to need to know where everyone is from. You're going to need to know where the events in question occurred.

And if we're thinking about preclusion, the whole point is that we have at least two different lawsuits. And so that's going to require a lot of words in a fact pattern. So that's just a little bit of background in thinking about civil procedure altogether. And so thinking about that, it's not surprising to see certain kinds of topics being tested more than others.

Let's dive into the kinds of questions that actually came out of these nearly 20 exams. Ten ended up having questions about subject matter jurisdiction, and that includes federal question jurisdiction and diversity jurisdiction. And then there were six questions that involved joinder. Now, that's both joinder of claims and joinder of parties.

And then we had four questions about personal jurisdiction, three that touched on venue, and three that talked about service of process. That said, there were also some wild cards. There was one question that was about Rule 11 and pretty much entirely about Rule 11. There was one question that was about how to amend one's pleadings.

There was another that was about Rule 37 sanctions, and those come into play when a party fails to make disclosures or to cooperate in discovery. So this is all to say that we can definitely have some wild cards, and you should be prepared for a question on just about any civ pro topic. But the key thing is that there are certain questions that it would pay to be particularly prepared for. We'll talk about those a little bit more in just a minute.

The other thing that I would note when we're thinking about what popped up on the MEE time and time again, we have seen some repeat combinations. For example, we've seen questions that ask first about subject matter jurisdiction and then personal jurisdiction, whereas another example, we've seen questions that ask about subject matter jurisdiction and then proper venue.

And that actually makes really good sense here, because the same long fact pattern that is going to give rise to a question about, say, subject matter jurisdiction could also then be used for a question about personal jurisdiction.

For example, you would need to know where the parties are all from, where a given accident occurred, and so on and so forth. The idea is, from the perspective of the bar examiners, one pretty long fact pattern is actually doing really helpful work that could feed into multiple questions that way.

Preparation

With that in mind, making those observations, let's talk about how to best prepare yourself for civ pro questions on the MEE. First and foremost, I would say, just going back to that list we were talking about, you're going to want to make sure you feel really solid with the rules of subject matter jurisdiction. Again, that was the topic that came up the most, looking back on these nearly 20 different MEE exams.

Remember, the first big category of cases that can come into federal court are diversity jurisdiction cases. How do we know if a case can come in under Section 1332? Well, remember there are two main sets of rules: those around what we call the complete diversity requirement and those around the amount in controversy requirement.

And then the second big category of cases that can come into court when we're thinking about subject matter jurisdiction are federal question cases. And for that, we focus on Section 1331, where the relevant rule is what we call the well-pleaded complaint rule. And that comes to us from a case called Mottley. It would definitely pay to make sure you're feeling really comfortable with the main rules coming out of subject matter jurisdiction.

I'd say it would also pay to brush up on the various rules about joinder, again, thinking about joinder of claims and also joinder of parties. Now, remember, one of the main tests that runs through most of those rules is that same transaction or occurrence test. And you will want to be prepared to think through whether that particular test is satisfied depending on the fact pattern in front of you.

Going back to those most popular topics, you'll also want to make sure you're feeling really comfortable with the relevant rules around venue and then service of process.

Tackling the Exam

That's a bit about preparation before the MEE. Now let's talk about how to tackle the MEE once the test has begun. When taking the exam itself, my big advice is always to read the prompts first, and this is particularly important, given the observations that we've just made. That is, when it comes to civ pro MEE questions, we can have really long fact patterns and then questions that might not actually be obvious based upon a read of those facts alone.

That is, you could start going through a question, the fact pattern is mentioning things like where the parties are from, where the event in question occurred, and you could think, oh, this is definitely a personal jurisdiction question and start thinking about the relevant test for that subject, when in fact it could turn out that the questions are all about subject matter jurisdiction and venue. So again, it always pays to read the prompt first. Then you'll want to go back through the fact pattern, zeroing in on what's relevant.

For example, if you have a subject matter jurisdiction question that's focusing in particular on diversity jurisdiction, you're going to want to take note of the following as you read through the fact pattern. Where is everyone a citizen? If we're talking about people, that means we have to be asking, where are people domiciled?

For talking about corporations, we need to be thinking about, where is their principal place of business and where is their state of corporation? We're then also going to want to keep track of the amount in controversy and thinking about the specific rules that accompany that requirement. We should be wary of parties trying to aggregate their claims, and so on and so forth.

Again, the key strategy here is you're going to want to start with a prompt and then go through the fact pattern, keeping in mind the particular rules for whatever the question is getting at. Then I always like to go back through the prompt really carefully at the end, just to make sure I haven't missed something.

Now, there's one other point about taking in the prompts that I like to emphasize. Just a good reminder: bar examiners don't like to ask the same question twice as part of a larger question. So here's what I mean by that. If I see that a part 1 is asking something that feels really similar to what a part 2 is asking, then I should think really carefully about how, in fact, they are different.

I want to give you a concrete example here. One of the questions from a past MEE exam had two joinder prompts back to back within the same larger question. One was actually a Rule 20 joinder question, and the other was about third-party impleader. The real point is that these rules actually tee up different tests, even if they feel somewhat similar.

If you see, again, two prompts that feel pretty similar to you, the key idea here is that they have to be different somehow, and you just want to make sure that you're showing to the bar examiners that you get exactly that. That's just a bit on how to prepare for the exam and the approach that you might want to take when reviewing a given question.

Writing the Exam

Just a little bit on the writing, just to close this out. The most important point here when it comes to writing up your answer to a civ pro MEE question is that the CRAC formula is going to be your best friend. A lot of civil procedure questions will have very clear rules to apply, whether those are coming from the Federal Rules of Civil Procedure, or a statute, or judge-made doctrine.

For example, we might have a particular rule for permissive joinder. That's going to come out of the Federal Rules of Civil Procedure. Or we might be referring to requirements for diversity jurisdiction coming to us from 28 USC Section 1332. Or we might have requirements for issue preclusion. That's all coming to us from judge-made doctrine.

But the key point here is that wherever the rules are coming from, a lot of these topics lend themselves so well to CRAC because you have a clear rule that you're going to have to state and then apply. One thing I would add here is that even within these topics, there'll be some portions of tests that are just begging for an extended thoughtful analysis.

Going back to something we were just talking about a few moments ago. Think about the same transaction or occurrence test that comes up again and again in joinder. That's often going to be a really good place to put some meat on the bones of your answer.

And just to make this really concrete, there was one MEE civ pro question in which we have a person who's injured in a car accident, and then is taken to the hospital in an ambulance, but unfortunately, the driver of the ambulance was negligent and caused the person to experience an additional injury. So this poor injured person wants to sue both the driver of the other car and the driver of the ambulance together in the same lawsuit.

Well, to determine if she can, one question that we're going to need to work out is, did these two claims arise out of the same transaction or occurrence? So that's actually a really interesting question when you think about it, and the bar examiners clearly wanted us to think it through, to do that extended analysis in answering that question.

But other questions within this topic are just going to be a little bit more cut-and-dry. For example, do we have complete diversity of citizenship? That's really about applying pretty technical rules. The analysis is always going to be important. You just want to keep in mind that some tests are going to lend themselves in particular to an extended analysis, just like what we were talking about with that same transaction or occurrence test.

In contrast to everything that I've just described, there are some subjects that don't have neat tests in quite the same way. Erie is a really good example of this. And I would say personal jurisdiction questions can sometimes fall into this category as well. That is, we know what analysis we have to undertake, but it's not as if we're going to be referring to a really short, discrete part of a rule, let's say.

Here, in particular, I would say that CRAC is going to be your friend. I think with these broader subjects, the danger is that your analysis can start to become disorganized, and CRAC is definitely going to keep you on track. It's critical for providing you that structure that's going to show the bar examiners you get what the rules are, and you can provide a really crisp analysis and then repeat your conclusion.

In sum, I think of civ pro on the MEE kind of like a box of chocolates. You never know exactly what you're going to get. But, that said, there have been some clear patterns over the last decade. Based on all the observations we made about the past 20 or so exams, you're really going to want to prepare especially for questions about subject matter jurisdiction, personal jurisdiction, joinder, venue, and service of process.

And then the key thing, of course, is going into the test knowing that you have prepared so well. Then you just focus on those prompts, take in the facts that you need, work through your CRAC formula, and you will be good to go.