How the MBE Approaches Civ Pro
You don’t have to worry about running into stealth civ pro questions on the MBE. If a question wants you to apply civ pro doctrine, it’s usually obvious right away. Topics you’ll frequently encounter include whether a party can file in state or federal court, whether a court has personal jurisdiction over the defendant, and whether a judge should grant a dispositive motion. These kinds of issues reside firmly within the realm of civ pro, and you should look to the Federal Rules of Civil Procedure as your guide.
How You Should Approach Civ Pro on the MBE
Procedure as Problem Solving
As you prepare for the exam, think of the Federal Rules and related doctrines as trying to solve specific problems. Sometimes they don’t succeed, but they do try. Rule 11, for example, attempts to discourage plaintiffs from filing frivolous lawsuits. Motions for a new trial are intended to protect defendants—and the integrity of the system as a whole—when something goes wrong with a jury trial. There’s a reason behind each civ pro rule, and if you keep those reasons in mind, you’ll find it much easier to understand and apply the rules themselves.
Orient Yourself
When you spot a civ pro question, start by asking where you are in the litigation process. Does the fact pattern tell you that the plaintiff is still deciding where to file the case? If so, your likely issues will be jurisdiction and venue. Have the parties already conducted discovery? If so, start thinking about motions for summary judgment. Has the jury returned a verdict? That’s a sign the parties are preparing for post-trial motions and appeals. If you figure out where you are chronologically in the case, you can quickly narrow down the issues to consider and identify which rules will be relevant to your analysis.
When in Doubt
If you find yourself stumped, look for an answer choice or two that you can eliminate as flatly unreasonable. Then, return to the core principle of this subject: civ pro tries to strike a fair balance between the interests of plaintiffs and defendants. When nothing else comes to mind, use your intuition to select the answer that best achieves that objective.