Preparing for the MPT

NCBE publishes study aids for the MPT that include the MPTs given in February or July of specific years and include corresponding Point Sheets. Point Sheets describe the factual and legal points encompassed within the lawyering tasks to be completed in each test and outline the possible issues and points that might be addressed by an examinee. Recent MPTs and Point Sheets may be purchased from NCBE by visiting the NCBE Study Aids Store. MPTs and Point Sheets from older adminstrations are available on the right side of this page.

MPT Summaries 2008-2013

Summaries of past MPTs, which include brief descriptions of the MPT task, context, and contents of each MPT's File and Library, are available below.

2013 MPT Summaries

Monroe v. Franklin Flags Amusement Park (July 2013, MPT-1) In this performance test item, examinees are associates at a law firm representing the Franklin Flags Amusement Park. Franklin Flags is being sued for negligence by Vera Monroe, a patron who was injured at the amusement park’s haunted house attraction the previous Halloween. Ms. Monroe claims three acts of negligence on the part of the park: after being frightened by a staff member dressed as a zombie, Ms. Monroe ran into a wall, breaking her nose; upon leaving the haunted house, she slipped on a muddy path, injuring her ankle; and finally, she fell and broke her wrist after being startled by another staff member in a scary costume. Examinees’ task is to draft the argument section of a persuasive brief in support of the park’s motion for summary judgment, refuting each of Ms. Monroe’s claims that the park was negligent and is liable for her injuries. The File contains the instructional memorandum, guidelines for drafting persuasive briefs, and excerpts from the deposition transcripts of the plaintiff, the general manager of the park, and a park staff member. The Library contains two Franklin Supreme Court cases that address liability for dangerous conditions and how a duty owed to patrons is modified on Halloween.

 

Palindrome Recording Contract (July 2013, MPT-2) Examinees’ law firm represents the four members of the rock band Palindrome, who have retained it to negotiate a recording contract with Polyphon, an independent recording label. Polyphon has presented the band with a detailed contract, and examinees are asked to redraft certain provisions of that contract to comport with the band’s contractual demands and objectives. In particular, the band is concerned about artistic control of its recordings, licensing of the band’s trademark, and use of the band’s images and trademark for marketing purposes. Examinees are asked not only to redraft those contract provisions but also to explain why changes are being made to each, and to analyze legal aspects or complications involved with each provision, if there are any. The File contains the instructional memorandum, a transcript of an interview by the assigning partner with the leader of the band, an agreement among the band members concerning the division of income, and selected provisions of the recording contract. The Library contains a Franklin statute concerning contracts for personal services and two cases discussing the assignment and licensing of trademarks.

 

In re Wendy Martel (February 2013, MPT-1) In this performance test, examinees are employed by the law firm that represents Wendy Martel, a Franklin attorney. Martel seeks the law firm’s advice regarding her representation of David Panelli, M.D. Martel recently settled Panelli’s case and has received the settlement funds. When Martel informed Panelli that she had the funds and needed to determine how much Panelli’s former attorney, Rebecca Blair, was entitled to for her work on the case, Panelli was adamant that Blair should receive nothing and should not even be told of the settlement. (Panelli had fired Blair as a result of a personality conflict.) Martel wants to be sure that she acts ethically with regard to Blair and the information about the settlement that Blair is entitled to have. Examinees’ task is to draft an opinion letter, following the firm’s guidelines, identifying the ethical issues raised by Panelli’s position and advising Martel as to how she should proceed. The File contains the instructional memo from the supervising attorney, a format memo for opinion letters, the client interview, copies of the Martel/Panelli emails, and a copy of Blair’s lien. The Library contains excerpts from the Franklin Rules of Professional Conduct, a Franklin State Bar ethics opinion, and a case from the Franklin Supreme Court.

 

In re Guardianship of Will Fox (February 2013, MPT-2) Examinees’ law firm represents Betty Fox, a member of the Blackhawk Tribe, who has petitioned for guardianship of her minor grandson, Will. Will’s mother died when he was born, and his father, Betty’s son, has been in a coma for several months as a result of a car accident. Betty is petitioning for guardianship in the Blackhawk Tribal Court in response to a petition for guardianship in Franklin state court filed by Will’s maternal grandparents, the Lodens, who are not members of the tribe. In addition, the law firm has filed on Betty’s behalf a motion to transfer the Lodens’ state court action to the tribal court. Examinees are asked to prepare a brief in support of the motion to transfer, following the firm’s format for persuasive briefs, and anticipating those arguments likely to be raised by the Lodens against the transfer. The File includes the instructional memo from the supervising attorney, a format memo for persuasive briefs, the competing petitions for guardianship filed in state and tribal court, the motion to transfer, a letter from the tribal court, an email from Betty’s son, and an excerpt from the Journal of Native American Law. The Library contains excerpts from the Indian Child Welfare Act of 1978, guidelines from the Bureau of Indian Affairs for Indian child custody proceedings, and a case from the Franklin Supreme Court bearing on the subject.

2012 MPT Summaries

Franklin Resale Royalties Legislation (February 2012, MPT-1) In this performance test, examinees are employed by the law firm that represents the Franklin Artists Coalition. The Coalition supports enactment of legislation which would require a five percent royalty to be paid to artists or their heirs on the resale of their visual artworks. To this end, the Coalition has asked the law firm to prepare a document which can be handed out to legislators and which will set forth the need for and benefits of the legislation, especially in light of the fact that similar legislation was introduced but not adopted in the neighboring state of Olympia. Examinees’ task is to draft the “leave-behind”—a persuasive document that will convince legislators to vote in favor of the resale royalties legislation. In doing so, examinees must set out the arguments in favor of the legislation, respond to the objections to the legislation, and address the legal issue of whether the legislation is preempted by the 1976 federal Copyright Act. The File contains the instructional memorandum from the supervising attorney, a letter from the client, a template for the “leave-behind,” and testimony by three witnesses before the Olympia State Senate regarding the similar legislation in that state. The Library contains the text of the proposed legislation, excerpts from the federal Copyright Act, and two cases bearing on the legal issue of preemption.

 

In re WPE Property Development, Inc. (February 2012, MPT-2) Examinees’ law firm represents WPE Property Development, Inc., a developer of low-income housing properties in Franklin. WPE contracts with Trident Management Group to manage many of its properties in compliance with Internal Revenue Code provisions to ensure tax-exempt status. One of these properties has now lost its tax-exempt status as the result of Trident’s mismanagement. WPE and Trident have a long-term business relationship that is valuable to both parties. Thus, while WPE appears to have a strong breach-of-contract claim against Trident (for tax liabilities and penalties resulting from Trident’s failure to maintain the tax-exempt status), the client, WPE’s CEO, is reluctant to file suit against Trident. He hopes that a settlement can resolve the matter short of litigation and thereby also avoid negative publicity for the housing project. However, despite many assurances from Trident’s counsel that Trident is willing to reach a settlement and make WPE whole for its losses, no final agreement has been reached, and the statute of limitations on a claim against Trident will run in just 15 days. The senior partner must advise WPE’s CEO of the legal consequences of not filing the complaint against Trident before the deadline. Examinees are asked to draft a letter to WPE’s CEO for the senior partner’s signature analyzing the potential legal consequences to WPE if it decides not to file its complaint against Trident and any possible theories under which WPE could recover against Trident after the limitations period has run. The File consists of the task memorandum from the senior partner, a memo to the file summarizing WPE’s concerns, and several pages of correspondence between counsel for WPE and Trident discussing the proposed settlement of the breach-of-contract claim. The Library contains three cases on the statute-of-limitations issue.

 

State of Franklin v. Soper (July 2012, MPT-1) In this performance test, examinees are law clerks for the trial court judge assigned to the homicide prosecution of Daniel Soper, who is charged in the shooting death of Vincent Pike. The defense has filed a motion to exclude, on state law hearsay and federal constitutional grounds, statements made by Pike after the shooting during a 911 call and later at the hospital shortly before he died. Examinees’ task is to draft a bench memorandum that will help prepare the judge for the evidentiary hearing. The File contains the judge’s instructional memo, a “format memo,” the defendant’s Motion to Exclude Evidence, the 911 call transcript, and the police report. The Library contains excerpts from the Franklin Rules of Evidence (identical to the restyled Federal Rules of Evidence), a state case discussing the applicable hearsay exceptions, and a heavily edited version of Michigan v. Bryant (U.S. 2011) setting forth the test for determining whether statements are “testimonial” for purposes of the Confrontation Clause.

 

Ashton v. Indigo Construction Co. (July 2012, MPT-2) Examinees’ law firm represents Margaret Ashton, a homeowner, in her dispute with Indigo Construction Co. A few months ago, Indigo bought a vacant lot behind Ashton’s home and began storing dirt on the lot to use later in its construction and landscaping business. Although Indigo’s use of the vacant lot is in compliance with the relevant zoning ordinances, its activities have negatively affected Mrs. Ashton—she is disturbed by noise from the trucks going to and from the vacant lot, and the huge dirt pile has caused substantial amounts of dust and mud to accumulate in her yard. Examinees are asked to draft the argument section of the brief in support of a preliminary injunction against Indigo. The File contains a memorandum from a firm partner asking the examinee to prepare the legal argument, a “format memo” that lays out the format for persuasive writing of trial briefs, two affidavits (from Margaret Ashton and from a firm investigator), and an article about the dirt pile from a local newspaper. The Library contains two cases from the Franklin Supreme Court: Parker v. Blue Ridge Farms, Inc. (dealing with the elements of the common law action of private nuisance) and Timo Corp. v. Josie’s Disco Inc. (dealing with the standards for granting injunctive relief for a private nuisance).

2011 MPT Summaries

Butler v. Hill (February 2011, MPT-1) Examinees’ law firm represents Jennifer Butler in a divorce action against Robert Hill. Jennifer was 17 and pregnant when the marriage ceremony was performed in 2003, and Robert forged the required signatures on the parental consent form. Jennifer and Robert lived together as a married couple for over six years, and they have two children. When Jennifer learned that Robert had been having an affair, she decided to end the marriage. Shortly thereafter, she discovered that Robert had been married before, and that he and his first wife were divorced in 2008—that is, several years after Jennifer and Robert’s marriage ceremony. Examinees’ task is twofold. First, they are asked to draft a brief objective memorandum for the supervising partner analyzing whether the parties’ marriage ceremony in September 2003 had any legal effect under the Franklin Family Code. Second, examinees are to prepare a closing argument in which they persuasively set forth the case for why the court should conclude that Jennifer and Robert are married under Franklin law and that Jennifer should be awarded more than 50 percent of the marital property. The File consists of the task memorandum, the partner’s memorandum to the file, a transcript of an interview with a neighbor, the couple’s marriage certificate, the divorce judgment for Robert’s first marriage, the deed for the parties’ residence, and an invitation to their anniversary party. The Library contains the relevant sections of the Franklin Family Code and three cases relating to void marriages, common law marriages, and the division of marital property.

 

In re Magnolia County (February 2011, MPT-2) In this performance test, examinees are employed by the Magnolia County Counsel’s Office. The county wants to build a new road connecting two state highways. To do so, the county will have to obtain an easement from the Plymouth Railroad Company over a portion of Plymouth’s railroad track and install an at-grade crossing of the track. If Plymouth refuses to grant the easement, then the County will need to exercise its eminent domain powers under state law and file a condemnation action in state court to force Plymouth to grant the easement. Plymouth contends that a condemnation action would be preempted by the Interstate Commerce Commission Termination Act (ICCTA), a federal statute that governs railroad operations. Examinees’ task is to draft an objective memorandum analyzing whether a condemnation action to acquire the easement for the crossing of Plymouth’s railroad track would be preempted under the ICCTA. The File contains the instructional memo from the supervising attorney, notes from a meeting between the supervising attorney and the county’s senior civil engineer, and a memo summarizing the preliminary meeting between the supervising attorney and railroad representatives. The Library contains three cases involving federal preemption under the ICCTA.

 

In re Field Hogs, Inc. (July 2011, MPT-1) In this performance test, examinees are employed by the law firm that represents Field Hogs, Inc., a manufacturer of heavy lawn and field equipment for consumer use. The company has been sued four times on various products liability and tort theories; the firm successfully defended two of these cases, but two others resulted in substantial jury awards for the plaintiffs. Field Hogs wants to limit its costs and any unwanted publicity in future litigation. To address these concerns, Field Hogs has asked the law firm to draft an arbitration clause to be added to its sales contracts. Examinees’ task is to draft an objective memorandum analyzing whether the proposed arbitration clause would cover tort claims against Field Hogs and whether the allocation of arbitration costs would affect the clause’s enforceability. In addition, examinees are asked to draft an arbitration clause that is likely to be enforceable in court and that addresses the client’s priorities. The File contains the instructional memorandum from the supervising attorney, a summary of the client interview, a memorandum summarizing Fields Hogs’s litigation history, a copy of the law firm’s standard commercial arbitration clause, and the Consumer Procedures of the National Arbitration Organization. The Library contains two cases discussing the standards for enforceable arbitration clauses.

 

In re Social Networking Inquiry (July 2011, MPT-2) Examinees’ supervising partner is the chairman of the Franklin State Bar Association Professional Guidance Committee. The committee issues advisory opinions in response to inquiries from Franklin attorneys concerning the ethical propriety of contemplated actions under the Franklin Rules of Professional Conduct. The committee has received an inquiry from a Franklin attorney asking whether an investigation using the social networking pages (such as Facebook or MySpace) of a nonparty, unrepresented witness in a personal injury lawsuit would violate the Rules. The supervising partner has reviewed the matter and believes that the attorney’s proposed course of conduct would be contrary to the Rules. Examinees’ task is to prepare a memorandum analyzing the issue with the object of persuading the other committee members that the proposed course of conduct would violate the Rules. This is an issue of first impression in Franklin. Examinees must therefore discern the relevance of, and guidance to be derived from, the three differing applications of those Rules in other states and then apply those differing approaches to the proposed course of conduct. The File contains the instructional memorandum, the letter from the Franklin attorney making the inquiry to the committee, and notes of the committee meeting. The Library contains the applicable Rules of Professional Conduct (including commentary on the Rules) and two cases—one from Olympia and one from Columbia—bearing on the legal issues.

2010 MPT Summaries

State of Franklin v. McLain (February 2010, MPT-1) The client, Brian McLain, has been charged with violating various sections of the Franklin Criminal Code dealing with methamphetamine, a controlled substance. The charges are based on evidence seized from McLain after police stopped him for investigatory purposes, acting on an anonymous tip that an individual matching McLain’s description had been seen purchasing items at a convenience store that, while entirely legal, are known ingredients of methamphetamine production. The officers searched his car, finding the goods described in the tip, together with a small plastic bag containing what appeared to be a marijuana cigarette. McLain was arrested and booked. After questioning, McLain directed the police to a “meth lab” where they found chemicals and equipment used to manufacture methamphetamine, as well as the drug itself. McLain was charged with possession of methamphetamine with intent to distribute, possession of laboratory equipment and supplies with the intent to manufacture methamphetamine, and manufacture of methamphetamine. He has moved to suppress all evidence seized by police on the ground that the officer lacked reasonable suspicion to stop him. He has also moved to dismiss the charge of possession of equipment with the intent to manufacture methamphetamine on the ground that it is a lesser-included offense of manufacture of methamphetamine. Examinees’ task is to draft the arguments in support of both motions. The File consists of a memorandum from the supervising attorney describing the assignment, the criminal complaint, the motion to suppress evidence and to dismiss Count 2, the transcript of the anonymous call to the crime hotline, and excerpts from the transcript of the evidentiary hearing. The Library contains the relevant Franklin statutes and three cases—two relating to investigatory stops and one dealing with lesser-included offenses.

 

Logan v. Rios (February 2010, MPT-2) In this performance test, examinees are associates at a law firm. The client, Trina Rios, owner of a toy store called Trina’s Toys, has been sued by Karen Logan, who slipped in a puddle of water and fell while shopping in the toy store. As a result, Logan sued Rios, claiming that Rios violated her duties as a premises owner. Rios pled an affirmative defense of contributory negligence, which, if proven, would be a complete defense to Logan’s action. Local court rules require parties to attend an early dispute resolution (EDR) conference, at which a neutral evaluator (the EDR judge) attempts to facilitate settlement of the case. Applicants’ task is to prepare an initial draft of part of the EDR statement, which will be submitted to the EDR judge. The EDR statement is confidential and is not shared with any other party. Thus, examinees should candidly discuss the strengths and weaknesses of their client’s case. The File contains the instructional memo from the supervising attorney, the local rule and form concerning EDR conferences and statements, the complaint, an investigator’s report, and excerpts of the depositions of plaintiff Karen Logan and Nick Patel, a toy store employee. The Library includes a Franklin Supreme Court Approved Jury Instruction concerning the premises liability of property owners with commentary on the duty of property owners and on contributory negligence.

 

In re Hammond (July 2010, MPT-1) In this performance test, examinees work for a law firm, which has received a request for guidance from another attorney, Carol Walker, related to her representation of William Hammond. A suspicious fire destroyed a building that Hammond owned and that housed his business. He has sought Walker’s advice about whether he has any criminal exposure related to the fire and whether he may file an insurance claim for the loss of the building. While Walker suspects that Hammond may have been involved in the fire, Hammond has not admitted or denied involvement and Walker has not explicitly asked. Walker wants to know whether she can successfully move to quash a subpoena duces tecum compelling her to appear before a grand jury convened to investigate the fire and to testify and produce materials relating to her communications with Hammond. Examinees’ task is to prepare the argument section of a brief in support of the motion to quash on the grounds that under the Franklin Rules of Professional Conduct and the Franklin Rules of Evidence, Walker may not be compelled to give the testimony or produce materials. The File contains the instructional memorandum from the supervising attorney, a memorandum on persuasive briefs, a letter from Walker to the firm, two memoranda from Hammond’s case file, a police report, the subpoena duces tecum, and the motion to quash. The Library contains provisions of the Franklin Rules of Professional Conduct, the Franklin Rules of Evidence, and the Franklin Criminal Code, and two cases from other jurisdictions bearing on a question, unresolved in Franklin, involving the attorney-client privilege and the crime-fraud exception.

 

In re City of Ontario (July 2010, MPT-2) In this performance test, examinees work for the City Attorney for the City of Ontario, Franklin. The City Attorney has been reviewing the city ordinances and procedures that cover the Liquor Control Commission, the administrative agency composed of the mayor and the city counsel that is responsible for granting liquor licenses and enforcing the relevant city ordinances. The City Attorney is concerned that the current Commission procedures would not be given preclusive effect by the courts should a licensee appeal a decision. Examinees’ task is to draft an objective memorandum analyzing whether the courts would be likely to grant preclusive effect to the Commission’s decisions and recommending what changes to the current procedures would make it more likely that the courts would do so. In addition, examinees should consider how any recommended changes would affect the City’s goal of having cost- and time-effective procedures for addressing violations of the Liquor Control Act. The File contains the instructional memorandum from the City Attorney, excerpts from the City of Ontario Liquor Control Ordinances, and the Notice of Liquor Control Violation form used by the City. The Library includes three cases.

2009 MPT Summaries

Phoenix Corporation v. Biogenesis, Inc. (February 2009, MPT-1) The law firm of Amberg & Lewis LLP represents Biogenesis, Inc., a large biotechnology company that is the defendant in a breach-of-contract suit regarding payment of patent royalties. A jury trial is set to begin in a month and is expected to last six weeks. The plaintiff in that suit, Phoenix Corporation, has filed a motion to disqualify the Amberg firm as Biogenesis’s attorneys, arguing that Amberg inadvertently received a letter covered by the attorney-client privilege and that Amberg’s actions with respect to that letter violate the Franklin Rules of Professional Conduct and will incurably prejudice Phoenix’s case. Examinees are associates at the law firm that has agreed to represent the Amberg firm in defending it against the motion to disqualify. Examinees’ task is to prepare an objective memorandum evaluating the merits of Phoenix’s argument for the Amberg firm’s disqualification. The File contains a task memorandum from the supervising attorney, the transcript of the client interview, the privileged letter that is the subject of the motion to disqualify, and Phoenix’s brief in support of its motion for disqualification. The Library contains the text of the Franklin Rules of Professional Conduct at issue and two cases.

 

Ronald v. Department of Motor Vehicles (February 2009, MPT-2) In this performance test, examinees work for a sole practitioner who represents Barbara Ronald in an administrative proceeding before the Franklin Department of Motor Vehicles (DMV). The DMV suspended Ronald’s driver’s license for allegedly operating a motor vehicle with a blood-alcohol level of at least 0.08 percent, the legal limit. Ronald requested an administrative hearing to challenge the suspension. Because this is an administrative proceeding, and not a criminal prosecution, the DMV must prove by a preponderance of the evidence that Ronald drove a motor vehicle with a prohibited blood-alcohol content. The administrative hearing officer has heard the evidence and has directed the parties to submit written briefs. Examinees’ task is to draft a persuasive memorandum arguing that the police officer did not have a reasonable suspicion warranting the stop of Ronald’s car, that the hearing officer cannot rely solely on the blood test report to find that Ronald was driving with a blood-alcohol content of 0.08 percent or more, and finally, that in light of all the evidence, the DMV has not proved that Ronald was operating a motor vehicle while intoxicated. The File contains the memorandum from the supervising attorney, the administrative hearing transcript, the police report, and the blood-alcohol test results. The Library contains a selection of Franklin statutes and three cases.

 

Jackson v. Franklin Sports Gazette, Inc. (July 2009, MPT-1) The client, the Franklin Sports Gazette, a weekly tabloid sports newspaper, has been sued by Richard “Action” Jackson, a star baseball player, for an alleged violation of Jackson’s right of publicity under Franklin’s recently enacted right-of-publicity statute. The Gazette ran a photograph of Jackson, only partially visible, sliding into home plate as part of its coverage of a baseball game. Jackson’s complaint arises from the Gazette’s use of that same photo in a print advertisement soliciting subscriptions. The Gazette seeks the law firm’s assistance in defending against the suit. Examinees’ task is to draft an objective memorandum analyzing whether there is a cause of action under Franklin’s right-of-publicity statute and identifying the Gazette’s possible legal arguments to oppose such a cause of action. The File contains the instructional memorandum from the supervising attorney, a summary of the client interview and background research, an internal memorandum from the Gazette approving the advertisement, and a copy of the advertisement itself. The Library contains the Franklin Right of Publicity Statute, excerpts from its legislative history, and three right-of-publicity cases decided under the previous common law in Franklin.

 

In re City of Bluewater (July 2009, MPT-2) Examinees are employed by the Bluewater City Attorney’s Office. The City plans to provide water and sewer services to a proposed 500-acre subdivision and to collect the corresponding revenue for such services. However, the City has just received a demand letter from Turquoise Water Supply Corporation (TWS), threatening to sue the City if it proceeds with its plan to provide water and sewer services to the subdivision site, which has not yet been annexed by the City. TWS claims to have the exclusive right under federal and state law to provide such services to the site. This presents an issue of first impression in Franklin. Examinees’ task is to draft a response to TWS’s demand letter, addressing TWS’s contentions and persuasively setting forth the City’s right to provide the services in question. The File contains the instructional memorandum, a preliminary research memorandum, the TWS demand letter, a newspaper article about the proposed subdivision, and a copy of the City’s draft service plan. The Library includes the relevant provisions of the federal statute and the Franklin Code regarding water utilities, and two Columbia cases.