In this lecture, I want to offer you some big-picture advice on how to approach MEE contracts questions in general. I'll start by giving you my approach for how I do a contracts MEE question, and then I'll give you six specific pieces of advice for handling the contracts questions on the MEE.

How to Approach a Contracts Question

Let me start with my approach. And I feel like I have to say this: this is how I approach contracts MEE questions. People are different. They do things different ways. There's no right way. There's only the right way for you. I have a set way of doing it that I think works for me, but you may need to tinker with this to make it work for you. Different strokes for different folks. No one even knows about that show anymore. Anyway, here's my approach.

1. Start with the Fact Pattern

First, I start with a fact pattern. I read it. Sometimes people start by reading the prompt at the end of the fact pattern rather than the fact pattern itself. That's fine. I'll do that if the prompt is really short, but if the prompt is long, then I won't be able to understand it or remember it when I go back and read the fact pattern. So I tend to save the long prompts for after I've read the fact pattern.

So, usually, I just start with the question. I'm reading it. When I'm doing a paper exam, I'm underlining it.

2. Take Notes

If it's on a screen, I'm taking mental notes or jotting down a word, just to remind myself. What am I noting here? Well, I'm noting the important events that happened in the story, just to help my understanding of what's going on.

Take Notes on What's Odd

I'm also noting anything that's odd because often the odd things are there for a reason. When you see something surprising, make a note. Be asking yourself, what is this fact? What is this fact here for?

These problems are short. You have to answer them fast, so there's not much room for truly irrelevant facts in the question. So for every interesting fact, you want to ask yourself, what legal issue is this about? What legal issue does this create?

Let me give you an example. On the July 2013 MEE, a contracts question is about a chef buying knives from a manufacturer. Don't worry about the facts too much. Let me just say that the question has this line in it. The chef sent the manufacturer $16 and "included an unsigned note to the manufacturer handwritten on plain paper requesting the remaining four knives."

That's an unusual line, isn't it? I mean, why would the problem say the note was unsigned? Why would it say that it was handwritten on plain paper? Those facts are so weird. They almost have to be relevant, but relevant to what? Well, it turns out this problem is all about the UCC statute of frauds provision, which sometimes distinguishes between signed writings and unsigned ones. So I'm noting things that are odd.

Note What's Important, Like SoF

I'm also just noting things that seem like they might be important later on. For example, one recurring issue in contracts questions on the MEE is the statute of frauds. Bar examiners love it because it's so easy to miss. Contracts professors love it too, probably for the same reason.

And because it's easy to miss, I always ask myself when I'm reading the question, is there a statute of frauds issue here? And I do that with my notes too. When I'm reading a contracts MEE question, I note everything that might trigger the statute of frauds. Anytime I see the word "oral" or "phone" or "conversation" or anything like that, I'm noting it. And in the back of my mind, I'm thinking, hmm, is there a statute of frauds issue here?

Another thing I note are any facts that make a party seem either really sympathetic or really unsympathetic. If a party knows that what they're saying is wrong, that's almost certainly relevant to something. Or if a party does something like enter into a contract because they have no choices or alternatives, if the question says that, that, too, is almost certainly relevant to something. So I note it as well.

Anyway, when I'm done reading the question, I then read the prompt. And it's crucial to read the prompt and to read it well. Test takers often don't answer the exact question being asked, and that can be deadly. Even if your answer ends up also answering the right question, often you waste a lot of time saying things you didn't need to say.

Now, for contracts, there are only so many kinds of issues they can test. So when I read the prompt, I ask myself, what is this really about? Is this about whether a contract was formed? Is it about whether a contract was breached? Is it about what remedies are available for a breach of contract? Is this about the rights of third parties?

It's weird, but almost all contracts topics fall in one or the other of those four categories. Now, of course, the prompts might be different. Maybe the first prompt is about contract formation and the second prompt is about breach. But regardless, when I'm reading the prompt, I'm trying to figure out the general topics.

3. Figure Out the Issues

When I've done that, I then try to figure out the specific issues. Sometimes a prompt will involve just a single issue. Sometimes a prompt will involve multiple issues. For contracts questions on the MEE, there tend to be between three to six different issues.

It's important to figure them out, to figure them all out, because if you miss one, that can really hurt. On the other hand, missing issues is actually pretty common, so if you spot all the issues and you address them all, you'll be in a very good position just out of the gate. So I take my time to identify the specific issues because the time is worth it.

4. Write Short Answers

I then write down the specific issues, and I write just a really short answer, no more than a sentence, about what I think the answer to each issue is. And this is going to become my outline. So now I have my basic outline. There are two prompts, let's say. The first prompt has one issue. The second prompt has three issues. I have a sentence conclusion for each issue. This is essentially my outline.

5. Fill Out the Outline with CRAC

And now I have to go fill in my outline. We've talked about the CRAC formula: conclusion, rule, application, conclusion. Well, now I have the first step, the conclusion. I need to go back and do the rule part and the application part.

Go Element by Element

And let me say something here about both the rule part and the application part. A lot of contracts tests have parts or factors or elements. When you write your answer, you want to list the elements of the test in the rule part. And then in the application part, you want to go through the elements one by one, explaining why they're satisfied or not.

This is a simple structure, but it works. Take, for example, promissory estoppel. Promissory estoppel claims are often seen as having four elements. First, party A must make a promise to party B; second, party B must reasonably rely on that promise; third, party B's reliance must be foreseeable to party A; and fourth, there must be injustice unless we enforce party A's promise.

The ideal answer would state these four elements. This is the rule part. And then the ideal answer would go over each of them, often one per paragraph, explaining why each is satisfied or not satisfied. This is the application part. And sometimes just doing this this way can save you because it might get you to realize what the problem is really about after all.

"Oh," you might realize, "oh, the reliance here was totally unforeseeable. That's why the promissory estoppel claim isn't good. It felt like it shouldn't be, but I couldn't quite figure out why before."

If You Can't Remember the Elements . . .

Now, often you can't remember the whole elemental structure of a rule. Don't panic. Just do the best you can. Come up with a structure based on what you can remember about the rule or based on general principles of contract law.

Just make it up, in other words. I know this sounds crazy, but part of your made-up test will almost surely be right, even if the whole thing isn't right. And you'll have something to apply to get points. You may not get full credit, but you don't need full credit. You just need enough partial credit. I know it sounds nuts to make up a test, but you'd be surprised how often students can do it pretty successfully.

I don't know, when you've been studying a subject for weeks on end, the rules maybe sort of enter into your subconscious. And contract law, more than other subjects, is pretty intuitive and common sense to begin with. So, if you can't remember a rule, make it up.

And then, finally, a word about the application part of CRAC. This is something that's often said in law school, but it's valuable here too on the MEE.

Go Deeper

Don't just draw conclusions; go deeper. Explain how you came to that conclusion. You say this damage is foreseeable. Why? Why do you feel that way? What facts in the problem drove you to the conclusion that it was foreseeable?

If you wrote one sentence about whether it was foreseeable, expand that into two or three. What else can you say about the facts that suggest this damage is or isn't foreseeable?

Six Pieces of Advice

Having done that, let me now offer you a few other pieces of advice. And here I have six pieces of advice in total.

1. Say Whether the UCC Applies

First, for every question, say at the beginning whether the UCC applies. This is such an important piece of advice. It's astonishing how often this issue is tested. It's part of maybe half the contracts questions.

The analysis is usually straightforward. The UCC governs contracts for the sale of goods. Goods are movable objects. Radios, let's say, are movable objects. So if the contract is for the sale of radios, then it's a UCC case. It's governed by the Uniform Commercial Code.

If it's not a contract for the sale of a movable object, if it's a contract, say, for land or a contract for services, or what have you, then it's not governed by the UCC, but instead by common law principles. Also keep in mind the predominant purpose test here. If the contract involves both things that are goods and things that are not goods, you decide whether the UCC applies by asking what the predominant purpose of the contract is.

If it's goods, the UCC applies; if not, the common law. So your first step in every contracts MEE question, after you're done reading it, is to explain whether this is a UCC case or not. I know it sounds obvious, but there are so many points here.

There was one MEE, the July 2018 MEE, where the parties were buying and selling a lawn mower. 20% of the total points came from explaining that the lawn mower was a good and thus the UCC applied to the contract in question. In the February 2017 MEE, 10% of the total points came from explaining tomatoes were a good and thus the UCC applied. So you have to do it.

2. Think about the SoF

Second, for every question, think about the statute of frauds. It's not quite like the UCC. Your answer doesn't have to address the statute of frauds if it's not relevant, but keep in mind, as I said before, that the statute of frauds comes up a lot, and it's amazingly easy to miss.

You can help yourself spot it by noting key words like "phone call" when you read the question, but I always separately take 10 seconds to just ask myself, is there a statute of frauds problem here? If the problem makes clear there's a written contract, then I rest easy. If not, I'm thinking statute of frauds.

3. Manage Your Time

Third, manage your time. This is an extremely time-pressured exam. The model answers that the NCBE gives you are so incredibly unrealistic. A law professor with the book in front of them would take a bunch of hours to write an answer that wouldn't be as good.

You have no books in front of you and you have about 30 minutes. So you have to move fast, even at the cost of getting it exactly right. You don't have to get it exactly right. And frankly, so many test takers misallocate their time. You look at their essays, they spend 75% of the time or 75% of the written space on topics that have 25% of the points. That's not ideal.

In general, unless there's a good reason to do otherwise, try to give proportionally equal time to each prompt. Three prompts, a third of the time for each prompt.

4. State the Obvious

Fourth, say the obvious and don't skip steps. I, personally, have trouble with this. I sometimes don't say the obvious. Sometimes I skip steps. Don't do that. Don't be me. Let me give you an example. This is from the July 2009 MEE.

Someone saved Sam's dog in an emergency, and then Sam later offered to give that person some money. That kind of situation doesn't generally involve a contract because the law considers it to be an unenforceable gift rather than an enforceable contract. Sam might feel a moral obligation to the person for saving his dog, but moral consideration is generally not sufficient legal consideration.

Anyway, I said all that, but I skipped the issue before it. I didn't say anything about why there wasn't bargained-for consideration. I didn't say the obvious, that there couldn't be bargained-for consideration because Sam's offer to pay the person money happened after the person saved Sam's dog. I should have said that. It's obvious, right? I mean, I certainly knew it, but I didn't say it. And you have to say it.

5. Think about Issue Clusters

Fifth, remember that issues cluster together. So, if you find one issue, think about connected ones. Say you have a statute of frauds issue under the UCC, and you notice there's a subsequent writing that mentions a quantity of goods. And you remember, this makes the contract enforceable up to the quantity of goods stated in the writing.

Well, that's great, but don't stop there. Are there other statute of frauds exceptions that are relevant here? Maybe the parties are merchants, and so maybe the merchants' exception to the statute of frauds applies, or maybe the goods were specially manufactured, or maybe the goods were already delivered.

There's exceptions for those things too. The point is that when you see one issue, try to think about all the legal issues that might be connected. Take a question from the February 2011 MEE. There was a condition in the contract. Party A says, "I'll buy your house if I can get a loan." That's a conditon. Party A getting a loan is a condition of the contract.

Anyway, in my head, when I read that, I recognize it as a condition, and now I'm trying to think of all the issues that can arise with conditions. For example, conditions can be waived or excused. So if party A says, "Oh, it turns out I couldn't get a loan, but you know, I'll go through with the contract anyway," well, that would count as a waiver of the condition.

Or there's a duty of good faith to complete a condition that depends on you. So if party A doesn't even try to get a loan, well, that could count as a breach of contract, even though, in general, conditions aren't promises, and so on.

6. Don't Freak Out

Finally, sixth, don't freak out if the answer isn't clear. Don't worry about it. It's more important to figure out the answers and to analyze them right than it is to come to any kind of right answer. In so many MEE contracts questions, you read the model answer, and it says, "This issue could go both ways."

So don't get paralyzed over the question of which side's arguments are more persuasive. It's much, much more important to spend your time stating the law and applying it to the facts, whatever result you reach.