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Highly Tested Multistate Essay Exam Topics

—A Guide by JD Advising
One of the key ways to study smart for the Multistate Essay Exam (MEE) is to pay
attention to the most highly tested areas of law in each subject. This MEE guide tells you
some of the highly tested areas of law, and a lot more!

Specifically, for each subject, we tell you:


• How it is tested on the MEE (e.g., how often it is tested, whether it is tested by
itself or with another subject, and what you should look out for when the subject
is tested).
• An overview of some of the highly tested MEE topics.
• Tips for approaching these highly tested topics to maximize your points.
• Where you can find free essays and point sheets that cover the highly tested
topics.

Below is an overview of the topics covered in our MEE Guide.

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TOPICS IN OUR MEE GUIDE
Introduction to the Guide Evidence
Agency and Partnership Family Law
Corporations and LLCs Real Property
Civil Procedure Secured Transactions
Conflict of Laws Torts
Constitutional Law Wills and Trusts
Contracts Download PDF
Criminal Law and Procedure

THE GOAL OF OUR MEE GUIDE


The goal of our MEE guide is to help you study efficiently for the Multistate Essay Exam. Many
students waste a lot of time trying to learn every subject and every topic equally. This is not a
wise use of time! Of course, you should not ignore any subject or topic. But to maximize your
MEE score, it makes sense to spend the most time on topics that are worth the most points. That
is the key to maximizing your score on the MEE portion of the bar exam.

If you have any questions, we are happy to answer them. You can contact us here at your
convenience. We love to hear from our readers. You can also read about our numerous MEE
services here if you are interested in pursuing the most efficient approach to the MEE!

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Topic 1: Agency and Partnership on the Multistate Essay Exam:
Highly Tested Topics and Tips
Here, we give you an overview of Agency and Partnership on the MEE, including an
overview of some of the highly tested topics and tips to approaching an Agency and
Partnership question.

Agency and Partnership regularly are tested on the MEE. The Examiners often test the
same issues semi-frequently and it is worth it to be aware of what these issues are.

Agency and Partnership on the Multistate Essay Exam

1. First, know how Agency and Partnership are tested

Agency and Partnership are tested about once a year. Note that sometimes only Agency
is tested. Sometimes only Partnership is tested. And sometimes you will see a mixture
of both Agency and Partnership principles tested on the MEE.

Basic principles of Agency and Partnership tend to be tested. Most MEE answers
reference the Uniform Partnership Act (UPA), the Revised Uniform Partnership Act
(RUPA) or the Restatement (Second) of Agency. If you took Agency and Partnership or
Business Organizations in law school, the law you learned in your law school class
should be very consistent with the law you are expected to apply on the MEE.

2. Be aware of the highly tested Agency and Partnership issues

The Examiners tend to test several of the same issues repeatedly in Agency and
Partnership questions. (We have a nice summary of these in our MEE One-Sheets if you
want to see them in one place.)

Some of the "favorite" Agency MEE issues include:

• Actual authority: This is one of the Examiners' favorite issues to test (second to
apparent authority). Be able to say, "Actual authority can be express, where the
agent is expressly given authority to act for the principal. It can also be implied.
Implied authority is present when the principal’s conduct leads the agent to
believe it has authority."
• Apparent authority: State: "the elements of apparent authority are: (a) the
person dealing with the agent must do so with a reasonable belief in the agent’s
authority, and (b) the belief must be generated by some act or neglect on the part
of the principal."
• Principles of vicarious and direct liability also are tested semi-frequently.
Remember that an agent is always liable for her own torts. A principal can be

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vicariously liable if the agent or employee was acting in the scope of
employment, made a minor deviation from employment, or committed
an intentional tort (a) for the principal's benefit, or (b) because the principal
authorized it, or (c) the intentional tort arose naturally due to the nature of
employment.
• Liability of a principal and agent for contracts entered into by the agent. This
is an issue that has come up recently and has been tested semi-consistently in
Agency and Partnership on the MEE. The agent is bound to a third party on a
contract she enters into with the third party if the agent had no actual or
apparent authority to enter into the contract. The agent also is liable if the
principal is undisclosed (i.e., the third party does not know the agent is acting on
another’s behalf) or if the principal is “partially disclosed” (i.e., the third party
knows the agent is acting on behalf of another but does not know the identity of
the principal).

Some of the "favorite" Partnership MEE issues include:

• Formation: Write: A partnership is “the association of two or more persons to


carry on as co-owners, a business for profit . . . whether or not the persons
intended to form the partnership.” Remember that it is very easy to form a
general partnership. No paperwork needs to be filed and it is the "default" form
if parties improperly try to form another business association (e.g., a limited
liability partnership). So, in general, if the question is, "was a general partnership
formed?" the answer usually is yes!
• Note that partners have fiduciary duties of loyalty, care, and to account.
• Be aware of how a partnership ends. "Dissolution" is not the end of a
partnership. Dissolution is a fancy word for change and can occur if a partner
withdraws in an at-will partnership. Then the partners need to "wind up" the
partnership and pay creditors. The partnership then terminates.
• Limited Liability Partnerships (LLPs) and Limited Partnerships (LPs) are
sometimes tested. Oftentimes on the MEE, a partner will commit a tort before an
LLP is filed and then file an LLP. The partner is still liable for any actions that
took place before the conversion to an LLP.
• Creditors' Rights: Note that in a general partnership, although the partners are
liable for debts of the partnership, creditors must attempt to collect from
the partnership before seeking the personal assets of the partners. This highly
tested MEE principle is not taught by a lot of commercial courses.

3. Be aware of key Agency and Partnership vocabulary

Many students seem to know the general principles of Agency and Partnership, but they
forget the key vocabulary or legal "buzzwords" to use. We recommend that you use
these words and bold or underline them to draw attention to them in your MEE
answers.

Agency and Partnership vocabulary to use

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• Be able to state the terms "actual authority," "apparent authority," and
"ratification."
• Be able to label the principal (the one who the agent is acting on behalf of) and the
agent.
• Use the term "vicarious liability" when the principal is liable for a tort committed
by an agent (even though the principal herself did nothing wrong).
• Know the differences between the general partnership and limited partnership
forms.
• Know the differences between dissolution, winding up, and termination (and be
able to use those three key terms!).
• Be able to define partnership.

Being familiar with key vocabulary will help you gain credibility with the grader and it
will help you maximize your bar exam essay score!

4. Practice!

The best way to excel at Agency and Partnership on the MEE is to practice writing
answers to essay questions. This will help you become acquainted with how Agency and
Partnership are tested. And it will help you master the highly tested issues.

Here we give you some links to (free) Agency and Partnership questions and NCBE point
sheets. (If you would like to purchase a book of Agency and Partnership questions and
NCBE point sheets from 2000 to the present, check out our MEE books here. You can
also see some exams on the NCBE website for free here.)

• February 2012 Partnership MEE: This one goes over some good basic
Partnership principles.
• February 2009 Agency MEE: This one covers very basic agency concepts and will
give you a good introduction to Agency.

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Topic 2: Corporations on the Multistate Essay Exam: Highly
Tested Topics and Tips
Here, we give you an overview of Corporations on the MEE, including an overview of
some of the highly tested topics and tips for approaching a Corporations question.
(Technically, the NCBE calls it "Corporations and LLCs." We will address both
Corporations and Limited Liability Companies [LLCs] here.)

Corporations is regularly tested on the MEE. The Examiners often test the same issues
semi-frequently and it is worth it to be aware of what those issues are.

Corporations on the Multistate Essay Exam

1. First, be aware of how Corporations is tested

Corporations is tested, on average, a little over once a year. It is often tested when
Agency and Partnership is not tested (though they are sometimes tested together). On
most exams, you will see Agency and Partnership or Corporations and LLCs, or both
subjects. (There are exceptions where neither was tested.)

Basic principles of Corporations law tend to be tested on Corporations MEE questions.


Most MEE answers refer to the Model Business Corporation Act (MBCA) or the Revised
Model Business Corporation Act (RMBCA). These are likely in line with the principles
you learned in law school if you took a Corporations or Business Organizations class.

2. Be aware of the highly tested Corporations issues

The Examiners tend to test several of the same issues repeatedly in Corporations
questions. (We have a nice summary of these in our MEE One-Sheets if you want to see
all of them and have them all in one place.)

Some of the highly tested Corporations MEE issues include:

Fiduciary duties

These duties are tested in both questions that test Corporations and questions that test
LLCs.

• The duty of care. Remember the business judgment rule! There is a presumption
that, “in making a business decision, the directors acted on an informed basis, in
good faith and in the honest belief that the action taken was in the best interest
of the company.” Directors must be informed to an extent that they reasonably
believe is appropriate. They are entitled to rely on information, opinions, reports,

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or statements of corporate officers, legal counsel, public accountants, etc., in
making a decision.
• The duty of loyalty—the most common issue. The most common issue when a
duty of loyalty issue arises is that a director is on both sides of a
transaction. Oftentimes, it is combined with a duty of care issue. For example, a
director is on the board of ABC, Inc. The director also owns XYZ, Inc. The director
convinces the board that ABC should enter into a contract with XYZ. The board
talks it over for 10 minutes, even though it is a major and expensive contract, and
all board members, including the interested director, vote to approve the
contract. The director has likely breached his duty of loyalty (unless he can show
it was a fair contract) since the director is on "both sides" of the deal—he is voting
on ABC's board and he owns XYZ. Further, the board likely breached their duty
of care if they only talked it over for 10 minutes.

Shareholder lawsuits

There are two types of shareholder lawsuits that are heavily tested:

• Direct suits: This is appropriate when the wrong done amounts to a breach of
duty owed to the shareholder personally. So, the shareholder is not bringing a
suit on behalf of the corporation. They are bringing the suit on behalf of
themselves! Examples of when a direct suit is appropriate is if, say, a shareholder
is denied preemptive rights, denied payment of a dividend, or is bringing a suit
for oppression in a close corporation. The key is that these are all personal to the
shareholder. (The shareholder is using the word "I."—"I was denied my
preemptive rights. I was denied my dividend. I was oppressed.")
• Derivative suits: A derivative suit is appropriate when the injury is caused to
the corporation and the shareholder is trying to enforce the corporation's rights.
The shareholder can do this because the shareholder is an owner of the
corporation so it has standing to bring such a suit to enforce the corporation's
rights. Filing a derivative suit has the following requirements: (mnemonic
= SAD): (1)the shareholder needs standing to bring a lawsuit (it owns stock in the
corporation), (2) adequacy(the shareholder represents the interests of the
corporation), and (3) demand(generally, the shareholder should file a written
demand and wait 90 days before filing a suit unless irreparable injury would
result or a demand would be futile). An example of when a derivative suit is
appropriate is if the board is making a decision that hurts the corporation.
Derivative suits are tested more frequently than direct suits.

LLCs

Remember that LLCs sometimes are tested instead of Corporations! Many of the same
principles that apply to Corporations or Partnerships apply to LLCs. The most common
issues in LLC questions are piercing the LLC veil and fiduciary duties.

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• Piercing the LLC or corporate veil: Generally, a plaintiff must show that
shareholders of the corporation or members of an LLC abused the privilege of
incorporating and fairness requires holding them liable. The plaintiff can pierce
the LLC veil if it can show undercapitalization of the business, failing to follow
formalities, commingling of assets, etc.

3. Be aware of Corporations and LLCs basics

Many examinees do not understand the basic principles of Corporations and LLCs. This
is especially the case for those that did not take a Corporations class in law school. And,
it can be very difficult to become well versed in Corporations and LLCs by watching just
one bar exam lecture. If you don't understand basic principles (like the role of directors
and the role of shareholders) then you will find it very hard to memorize the law.
Further, even if you are able to memorize the law, you will have a hard time applying it
to fact patterns.

So, it is a good idea to get the basics down first!

Here are a few notes on Corporations and LLCs basics:

• Directors manage the corporation. Thus, they meet regularly. They must vote
responsibly, so they cannot vote by proxy or voting agreement. (Their judgment
should not be unfairly affected by a proxy or voting agreement!). The business
judgment rule applies and they are presumed to act reasonably.
• Shareholders own the corporation. Because they are merely owners, they don't
meet that often but are entitled to annual meetings. They need special notice for
meetings. They can vote by proxy or agreement because they aren't the ones
managing the corporation.
• Officers are agents of the corporation. They are the president, secretary,
treasurer, etc. They are the "hands and feet" of the corporation because they have
the power to enter into transactions. (Look for an agency crossover if you see an
officer, say, enter into a contract on behalf of the corporation. They likely have
actual or apparent authority to do so!).
• A corporation must be incorporated (i.e., articles must be filed with the state) in
order for a valid corporation to be formed.
• Similar to Corporations, in order for an LLC to be formed, articles of organization
must be filed with the state. Members of an LLC are similar to officers—they may
have actual or apparent authority to bind the LLC.

Being familiar with the basics will help you memorize the nuances. The basics will serve
as "building blocks" and some of the details will make more sense (and be more
memorable) once you have the basics down.

4. Get the vocabulary down!

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Many examinees struggle with the vocabulary used in Corporations and LLCs
questions. A lot of the vocabulary will be nuanced and unfamiliar—particularly if you
are learning Corporations and LLCs for the first time. Here, we give a layman's version
of some vocabulary terms that may help you remember them!

Layman's version of Corporations and LLCs vocabulary

• "Articles of incorporation": A fancy word for "contract" (the corporation's


contract with the state). The articles include basic information like the
corporation’s name, address, names of incorporators, etc. Additional provisions
can be added. The corporation files these with the state (they are public).
• "Dividend": A fancy word for "profits." The whole reason shareholders buy
shares is because they want to be paid profits.
• "Subscription": A fancy word for "offer." A subscription is an offer to buy shares.
In general, it must be in a signed writing and state a price.
• "Promoter": This is someone who is “promoting” a corporation before it is even
formed. So let’s say you and I want to form a corporation to sell coffee. We send
in our articles to the state (but it takes a while to get them back) and we are eager
to get started on our very lucrative business idea. Thus, I personally sign a lease
with a landlord agreeing to rent space for one year. I sign my name, “John Doe,
on behalf of Coffee, Inc., a corporation to be formed.” I am “promoting” the
corporation by entering into leases on its behalf before it is even in existence.
Thus, I am the promoter. I am liable on the lease.
• "Ratify": A fancy word for "approve." The corporation in the above example is
liable if it ratifies or approves of the contract. It could expressly ratify the lease
by signing its name to it (and becoming liable) or impliedly ratify the lease (e.g.,
by moving in and acting as if it is part of the lease agreement!)
• "Directors": Remember that directors "direct" or manage the corporation!
(Shareholders merely hold shares of, or own, the corporation.)
• "Quorum": Quorum is a term that states when voting can take place. A quorum is
a fancy word for “majority.” It means a majority of people or shares have to show
up at a meeting (and then more have to vote for than against the proposal) for it
to pass.

Being familiar with key vocabulary will help you gain credibility with the grader and it
will help you maximize your bar exam essay score!

5. Practice!

The best way to excel at Corporations on the MEE is to practice writing answers to
essay questions. This will help you become acquainted with how Corporations is tested.
And it will help you master the highly tested issues.

Here we give you some links to (free) Corporations questions and NCBE point sheets.
You also can see some exams on the NCBE website for free here.

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• July 2012 MEE: this one covers an LLCs issue.
• February 2010 MEE: this is a good overview of how you may see Corporations
on the MEE.
• February 2009 MEE: this one covers some basic Corporations issues (like the
business judgment rule) and is good practice!

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Topic 3: Civil Procedure on the Multistate Essay Exam: Highly
Tested Topics and Tips
Civil Procedure is by far the most tested topic on the MEE. It has been tested repeatedly
since the 1990's and up until recently, has been a "guaranteed" MEE subject. Further,
the Examiners often test the same issues semi-frequently in Civil Procedure MEE
questions and it is worth it to be aware of what these issues are.

Here, we give you tips for approaching Civil Procedure on the MEE and we reveal some
of the highly tested issues in Civil Procedure MEE questions.

Civil Procedure on the Multistate Essay Exam

1. First, be aware of how Civil Procedure is tested

Civil Procedure used to be a guaranteed subject on the MEE. It appeared virtually every
year. Then, on occasion, it would not appear (see frequency chart).

This is not shocking to us because Civil Procedure was added as a Multistate Bar Exam
(MBE) subject in February 2015. We suspect that the National Conference of Bar
Examiners (NCBE) feels more comfortable not including Civil Procedure on the MEE
now since it is tested on the MBE. Thus, we expect to see it tested less and less. However,
you should still be very well versed in Civil Procedure. Not only will you see 25 scored
MBE questions covering the subject but it is still the most highly tested MEE subject,
even if it is tested less than it used to be.

Civil Procedure generally is tested on its own but occasionally it is combined with
Conflict of Laws.

2. Be aware of the highly tested Civil Procedure issues

The Examiners tend to test several of the same issues repeatedly in Civil Procedure
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Civil Procedure Multistate Essay Exam issues include:

Subject matter jurisdiction (SMJ)

Subject matter jurisdiction (SMJ) is by far the Examiners' favorite Civil Procedure MEE
topic to test. The Examiners especially like to test diversity jurisdiction and
supplemental jurisdiction (with federal question jurisdiction and removal being tested
slightly less).

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• Diversity jurisdiction: This has two requirements: (1) there must be complete
diversity of citizenship and (2) the amount in controversy must be over $75,000.
Rules of domicile are tested with diversity jurisdiction. Remember to look to
where a party is domiciled at the time the lawsuit is filed. That is the key moment
to determine domicile for diversity jurisdiction purposes.
• Federal question: The federal question must appear on the face of the plaintiff's
well-plead complaint. When federal question jurisdiction is tested, it tends to be
tested with personal jurisdiction.
• Supplemental jurisdiction: this is an issue when one wants to tack on a claim
that isn't otherwise covered by diversity or federal question jurisdiction.

Personal jurisdiction (PJ)

Personal jurisdiction (PJ) is not tested as often as many examinees think it is. It is tested
about once every five years. Here are some tips for answering PJ questions on the MEE:

• If you see a PJ issue on your essay, make sure to discuss general jurisdiction and
then discuss specific jurisdiction. Give a brief overview of both (even if specific
jurisdiction is tested, which it normally is). Giving an overview of both will make
your answer appear thorough.
• Remember to mention that personal jurisdiction stems from the Fourteenth
Amendment Due Process Clause.
• Use key vocabulary if specific jurisdiction is tested, like "minimum contacts" and
"purposeful availment."

Venue

Venue is another topic that regularly appears on Civil Procedure MEE questions.

• General rule: Venue is proper in a district where (1) any defendant resides if all
defendants reside in the same state, (2) in a district where a substantial part of
the events or omissions giving rise to the claim occurred, or (3) a substantial part
of property that is subject to the action is situated. (There are also narrow
fallback rules which, so far, have not been emphasized on the MEE.)
• Transfer to a more appropriate forum: This is tested frequently when venue is
tested. The federal court has authority to transfer a case to another federal
district for the convenience of the parties and witnesses and in the interest of
justice. The new forum must have subject matter jurisdiction and personal
jurisdiction. The court will apply the law of the transferor forum. (Since the
case was properly brought in the transferor forum, it makes sense that the court
will apply the law of the transferor forum.)

Other issues

A few other issues that appear in Civil Procedure MEE questions are the following:

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• Service of process
• Discovery issues
• Temporary restraining orders (TRO) and preliminary injunctions
• Claim and issue preclusion
• Joinder

3. Learn Civil Procedure vocabulary

There are some words that graders will be looking for in your essays. If you can bold
some of these key words, you will maximize your points! You should also be familiar
with some key vocabulary terms that you will see over and over again on Civil
Procedure MEE and MBE questions. Here, we give you some of the key Civil Procedure
vocabulary words that you should be aware of:

• When personal jurisdiction is tested, use words like minimum


contacts and purposeful availment.
• When federal question jurisdiction is tested, state that the federal question
must appear on the face of the plaintiff's well-plead complaint.
• Know the difference between removal (when a defendant seeks to move a case
from state to federal court) and remand (when a federal court sends a case back
to state court).
• Be aware of the difference between transfer to a more appropriate forum (this
is what tends to be tested more heavily on the MEE, and this is appropriate
when the case has not been filed in the wrong venue—yet there is still
a better venue to file it in) and transfer to a proper venue (this tends to not be
tested on the MEE, but this is an appropriate motion to file when the case was
filed in the wrong venue to begin with).
• If summary judgment is an issue, use key terms such as "there must be no
genuine issue as to any material fact." Also, remember to use the terms moving
party (the one that brings the motion) and nonmoving party (the one that must
respond to the motion if the moving party meets its burden of production).
• Understand the differences between a counterclaim (defendant suing
plaintiff), cross-claim (defendant suing defendant, or plaintiff suing plaintiff),
and impleader claim (defendant bringing a claim against a new party, claiming
that the new defendant is liable to it for some or all of the harm).
• When supplemental jurisdiction is an issue and a party is trying to add a claim
that otherwise may not have a jurisdictional basis, use the words common
nucleus of operative fact.

4. Get in the habit of connecting every dot for the grader using IRAC

To make sure you connect every dot for the grader, get in the habit of using IRAC. Make
sure your rule statements start from general and go to specific. And make sure to state
the general rule before applying exceptions, especially if broader principles of Civil
Procedure are tested (e.g., jurisdiction, venue). Use the following format:

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• Issue
• Rule (general rule / specific rule, then any relevant exceptions)
• Analysis
• Conclusion

For example, if you see personal jurisdiction tested, after identifying the issue, you
should say things like:

• Personal jurisdiction arises from the Due Process Clause of the Fourteenth
Amendment.
• The U.S. Constitution and state long-arm statute must be satisfied.
• Give a brief overview of general and specific jurisdiction before applying the law
to the facts and concluding.

Some students just jump in and make conclusory statements like "jurisdiction isn't
appropriate because there are no minimum contacts." These students miss out on
valuable points because they do not give an overview of the basic principles of law (even
though they appear to know them). Remember to connect every single dot for the
grader! This will maximize your points on Civil Procedure on the MEE!

5. Practice!

Practice is critical if you want to master Civil Procedure on the MEE. As an added bonus,
you may also see your MBE score improve if you write answers to Civil Procedure MEE
questions.

Here are some links to (free) Civil Procedure questions and NCBE point sheets. You can
also see some additional exams on the NCBE website for free here.

• Feb 2013 MEE: this covers issues of preclusion.


• July 2012 MEE: summary judgment (not tested a lot recently but has been tested
consistently in the past).
• July 2010 MEE: this covers personal jurisdiction and subject matter jurisdiction.
• July 2009 MEE: this covers removal and joinder, as well as jurisdiction issues.

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Topic 4: Conflict of Laws on the Multistate Essay Exam: Highly
Tested Topics and Tips
Here, we give you an overview of Conflict of Laws on the MEE. We will reveal some of
the highly tested topics and give you tips for approaching a Conflict of Laws MEE
question.

Note that Conflict of Laws is the least-tested topic on the MEE. It is the only subject that
is not tested by itself—it is always tested with another subject.

When Conflict of Laws is tested on the MEE, it is generally tested in a predictable way.

Here, we give you tips for approaching Conflict of Laws on the MEE and we reveal some
of the highly tested issues in Conflict of Laws questions.

Conflict of Laws on the Multistate Essay Exam

1. First, be aware of how Conflict of Laws is tested

Conflict of Laws is not tested often

As noted above, Conflict of Laws does not appear very frequently on the MEE.

Conflict of Laws is not tested as a standalone subject

The NCBE has announced that Conflict of Laws will not be tested as a standalone
subject. It is always combined with another subject.

Conflict of Laws tends to be combined with Civil Procedure, Family Law, or


Decedents' Estates

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Since 1995, Conflict of Laws has been tested with the following subjects:

• Civil Procedure—10 times (52.6%)


• Family Law—7 times (37%)
• Decedents' Estates—2 times (10.5%)

2. Be aware of the highly tested Conflict of Laws issues

The Examiners tend to test several of the same issues repeatedly in Conflict of Laws
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Conflict of Laws MEE issues include:

Civil Procedure

Civil Procedure is frequently tested with Conflict of Laws on the MEE when Conflict of
Laws appears. Here are some of the "favorite" Conflict of Laws issues:

• Klaxon doctrine: A federal district court sitting in diversity must apply the
choice of law approach prevailing in the state in which it sits. So, if a state claim
in New York is brought by a New York plaintiff against a Washington defendant
in a federal district court in New York on a diversity basis, the federal district
court must apply New York choice of law rules when determining which state’s
law to apply. This makes sense because it provides no incentive for the parties to
forum shop.

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• Transfer to a more appropriate forum: This is tested frequently when venue is
tested. The federal court has authority to transfer a case to another federal
district for the convenience of the parties and witnesses and in the interest of
justice. The new forum must have subject matter jurisdiction and personal
jurisdiction. The court will apply the law of the transferor forum. (Since the
case was properly brought in the transferor forum, it makes sense that the
court will apply the law of the transferor forum.)

Family Law

There are a variety of issues that tend to be tested with Conflict of Laws and Family
Law—and many of those issues overlap with the subject of Family Law. Here are some:

• Recognition of marriage: A marriage which is valid under the law of the state
in which it was contracted will be valid elsewhere unless it violates a strong
public policy of the state that has the most significant relationship to the
spouses and the marriage. Common law marriage is virtually always tested
when this principle is tested. So, know that if the marriage is recognized by the
state where the couple entered into the marriage, it will be recognized by all
other states.
• Full faith and credit: A state must recognize final judgments of other states so
long as the judgment is on the merits and the other state had jurisdiction. An
example of this is that a divorce decree must be granted full faith and credit.
• Many of the other tested topics are learned in conjunction with Family Law.

Decedents' Estates

Conflict of Laws is not frequently tested with Decedents' Estates. Here are two recent
issues that have appeared (both appeared on the 2012 exam):

• Personal property: postmortem (i.e., after death) distribution of personal


property is governed by the law of the state where the decedent was domiciled
at the time of his death.
• Real property: postmortem distribution of real property is governed by the law
of the state where the real property is located.

3. Don't worry too much about providing a historical background

One mistake that students sometimes make when approaching a question that tests
Conflict of Laws on the MEE is to provide a historical background. They discuss the
"vested rights" approach and give an overview of various policies. We suspect students
do this because this is how many commercial courses teach Conflict of Laws. It is not
bad to provide a policy analysis and sometimes a question will call for it. However, a
history lesson is usually not expected and not necessary. So, instead of writing an
introductory paragraph that gives an overview of the historical development of the

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Conflict of Laws field, just stick to the issues being asked about. This will save you time,
make your answer look more focused, and maximize the potential points you can earn.

4. Practice!

Practice is critical for spotting issues involving Conflict of Laws on the MEE. Below are
some links to (free) Conflict of Laws questions and NCBE point sheets. (If you would like
to purchase a book of Conflict of Laws MEE questions and NCBE point sheets from 2000
to the present, check out our MEE books here. You can also see some additional
exams on the NCBE website for free here.)

• July 2012 MEE (combined with Decedents' Estates)


• February 2012 MEE (combined with Civil Procedure)
• July 2011 MEE (combined with Family Law)
• February 2009 MEE (combined with Civil Procedure)

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Topic 5: Constitutional Law on the Multistate Essay Exam:
Highly Tested Topics and Tips
Constitutional Law is regularly tested on the MEE. It is tested, on average, once every
year to every year and a half. It used to be the least-tested MBE subject on the MEE but
it has been making a comeback and is now tested relatively equally with other subjects.

Here, we tell you tips for approaching Constitutional Law on the MEE and we reveal
some of the highly tested issues in Constitutional Law questions.

Constitutional Law on the Multistate Essay Exam

1. First, be aware of how Constitutional Law is tested

Constitutional Law is about once every 1–1.5 years, as noted above. The subject of
Constitutional Law can be divided into two sections—one is governmental powers
(powers of Congress, the President, judiciary, federalism, etc.). The other is individual
rights (First Amendment issues, the Equal Protection Clause and Due Process Clause,
etc.). Constitutional Law MEE questions have shifted from testing primarily First
Amendment and individual rights issues to now primarily testing governmental
powers.

Any topic is, of course, fair game. However, it is interesting to see the trends in
Constitutional Law questions on the MEE. (The Board went from testing individual
rights more and governmental powers less, to recently testing both topics more evenly.)
Thus far, Constitutional Law has been tested on its own and not combined with another
subject.

2. Be aware of the highly tested Constitutional Law issues

The Examiners tend to test several of the same issues repeatedly in Constitutional Law
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Constitutional Law Multistate Essay Exam issues
include:

Commerce Clause and Dormant Commerce Clause

This is a NCBE favorite! You should be well aware of Congress's power to regulate
commerce as well as the state's power to regulate commerce in the absence of
congressional regulation.

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• Commerce power: Congress can regulate the channels and instrumentalities of
interstate commerce, persons and things in interstate commerce, or anything
that has a “substantial effect” on interstate commerce. (This is a very broad
power!) However, Congress cannot "commandeer" states and force them to
enforce federal laws. Congress can, instead, regulate directly through its
commerce power or it can regulate indirectly through its taxing and spending
power.
• Dormant Commerce Clause: If Congress is silent, states may regulate commerce.
However, if a regulation discriminates against commerce, it is usually
unconstitutional as it must undergo a strict scrutiny analysis. If it
is nondiscriminatory on its face, it undergoes a burden-benefit analysis and is
more likely to be held constitutional. Memorize these two standards of review. If
you see a Dormant Commerce Clause issue, state both standards of review prior
to applying the applicable one.
• Exceptions: be aware of when the Dormant Commerce Clause does not apply
(e.g., when Congress is regulating, when the state is acting as a market
participant, etc.).

Equal Protection Clause (EPC)

Memorize the standards of scrutiny under the EPC. For your own benefit, you should
know these standards very well. This will help boost your score not only for the essay
portion but also the MBE portion of the exam. You should also memorize the standards
of scrutiny under the Due Process Clause, though so far the Equal Protection Clause has
shown up more frequently on the MEE (with issues involving age and gender).

• Rational basis: The plaintiff must prove that the law is not rationally related to
a legitimate government interest. (The plaintiff usually loses.) This applies to
every other classification—poverty, wealth, age, education, etc.
• Intermediate scrutiny: The government must prove the classification
is substantially related to an important government interest. This applies to
classifications regarding gender and illegitimacy.
• Strict scrutiny: The government must prove that the law is narrowly tailored
(necessary)to achieve a compelling interest. (The government usually loses
under a strict scrutiny analysis.) Strict scrutiny applies to fundamental rights,
racial or ethnic discrimination, and alienage when the classification is made by
the state (though there are exceptions for alienage where strict scrutiny does not
apply—e.g., if the public function doctrine applies or if the law regulates illegal
aliens).

Free speech

Unsurprisingly, free speech is heavily tested. You should be aware of:

• Speech that is considered unprotected (e.g., defamation)


• Time, place, manner restrictions

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• Basic free speech principles (e.g., vagueness, overbreadth)
• Government action is necessary to find in order to sue for a free speech
violation

In other words, learn the free speech portion of your Constitutional Law outline very
well!

3. Memorize the important amendments and clauses

To build instant credibility with the grader, it is helpful to be aware of which


amendment goes with which topic. For example:

• Commerce Clause: under the Commerce Clause, Congress has the power to
regulate interstate commerce.
• Equal protection: the Fourteenth Amendment provides that no state shall deny
to any person within its jurisdiction the equal protection of the laws.
• Free speech: The First Amendment applies to the states through the Due Process
Clause of the Fourteenth Amendment. (State this whenever you see a free speech
or other First Amendment issue.)
• Eminent domain: a restriction on takings arises from the Fifth Amendment and
is applied to the states through the Fourteenth Amendment.

Having a general idea of which amendment applies will build credibility with the grader.
It is also a nice introduction to any of the above issues. Lastly, immediately having
something to write when you see one of these topics tested can help boost your
confidence on exam day.

4. Be sure you understand the trickier Constitutional Law issues that are tested

Memorization is important, but you also want to make sure that you understand the
law so that you can accurately apply it. Many examinees have trouble with Dormant
Commerce Clause issues, the Eleventh Amendment, application of free speech issues,
and distinguishing between Equal Protection Clause and Due Process Clause issues.

Some of these examinees memorize the standards, but they do not properly apply them
to the facts because they do not truly understand them.

If you find yourself unable to properly apply the law to the facts, do the following:

• Attend (or re-watch) your bar review course lecture if you found it helpful.
• Seek a tutor for Constitutional Law (or consult with a study group, if you have
one).
• Practice essays and MBE questions and closely analyze the answer explanations,
while making notes to yourself of helpful examples.
• Review the topics you are having trouble with by doing a Google search.

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Some students feel a false sense of confidence about Constitutional Law. Make sure that
you actually understand some of the more nuanced issues—they tend to be tested most
on the MEE!

5. Practice!

Practice is critical if you want to master Constitutional Law on the MEE. As an added
bonus, you may also see your MBE score improve if you practice Constitutional Law
essays.

Here are some links to (free) Constitutional Law MEE questions and NCBE point sheets.
(If you would like to purchase a book of Constitutional Law MEE questions and NCBE
point sheets, check out our MEE books here. You can also see some additional exams on
the NCBE website for free here.)

• Feb 2013 MEE: this covers First Amendment issues


• July 2012 MEE: Commerce Clause issues
• July 2011 MEE: this covers the Equal Protection Clause

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Topic 6: Contracts on the Multistate Essay Exam: Highly Tested
Topics and Tips
Contracts is regularly tested on the MEE. It is tested, on average, a little more than once
a year. Here, we tell you tips for approaching Contracts on the MEE and we reveal some
of the highly tested issues in Contracts questions.

Contracts on the Multistate Essay Exam

1. First, be aware of how Contracts is tested

Contracts is tested, on average, more than once a year (see frequency chart). Common
law principles tended to be tested more than Article 2 sales of goods issues, but Article
2 has been tested more recently. So, either is fair game on the MEE.

Contracts tends to be tested by itself. (It has been tested with Negotiable Instruments in
the past, but Negotiable Instruments is no longer tested on the MEE.)

2. Be aware of the highly tested Contracts issues

The Examiners tend to test several of the same issues repeatedly in Contracts MEE
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Contracts Multistate Essay Exam issues include:

Article 2 vs. common law

Since Article 2 has appeared more recently, it is good to know when Article 2 applies.
Article 2 of the Uniform Commercial Code (UCC) applies to transactions in goods. Goods
are “things moveable” at the time of identification to the contract. An entire issue in the
February 2018 exam was whether Article 2 or common law applied, so if you have
trouble with Article 2 vs. common law, review that essay.

Contract formation

Contract formation is heavily tested on the MEE. Here are some principles that are
tested:

• Offer and acceptance of offer: A person makes an offer when the person
communicates to another a statement of “willingness to enter into a bargain” so
that the other understands that “his assent to the bargain is invited and will
conclude it.” The terms of an offer need to be reasonably certain (e.g., as to

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parties, subject matter, price, etc.). Note that the mirror-image rule applies at
common law so any acceptance must mirror the offer. Look out for an acceptance
that is actually a counteroffer (e.g., it does not mirror the terms of the offer), or
an acceptance that is sent after the offer is already lapsed or revoked.
• Consideration: Consideration is a "bargained-for exchange." Generally,
consideration is needed to modify a contract. Under the UCC, only good faith is
needed to modify a contract.

Performance obligations

Here, it is key to know the difference between common law and UCC Article 2. The
general rule is that under common law, a party must “substantially perform” its
contractual obligations in order to demand performance (usually payment) from the
other party. Note that this is different from UCC Article 2, which requires perfect tender
for “one-shot” deals (i.e., anything that is not an installment contract.) Some other UCC
vs. common law issues are detailed in the chart below.

Damages

Be familiar with damages principles. This is one of the most heavily tested topics in
Contracts MEE questions.

• Expectation damages: “[t]he normal measure of damages for breach of contract


is expectation damages, which aim to give the non-breaching party the benefit of
his bargain.”
• Contracts principles: Make sure you are aware of basic Contracts principles. For
example, punitive damages are not recoverable under Contract law. (A plaintiff
should file a tort action if he seeks punitive damages.) Damages must also
be foreseeable and proved with reasonable certainty. Mitigation of damages is
important. A party must try to mitigate damages when possible and cannot
collect damages that he could have otherwise reasonably mitigated.

3. Make a visual timeline of when important Contracts events happen

Contracts is a tricky subject. It is nuanced. The vocabulary can be difficult and confuse
students. If you struggle with Contracts, make a visual timeline of when you see certain
concepts tested. We recommend you start with the basics and keep adding to it. One
thing that makes Contracts slightly easier for examinees than subjects like
Constitutional Law is that it is very "linear." So, events occur along a timeline. It is easy
to organize events along this timeline to make sense of when issues will appear in MEE
questions. This can make issue-spotting, comprehension, and memorization easier.

Start with a very basic outline

• Which law applies

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• Contract formation (offer, acceptance, consideration) and defenses to formation
(e.g., incapacity)
• Performance obligations (under Article 2 vs. UCC) and defenses (e.g.,
impossibility)
• Damages
• Issues involving assignment, delegation, and third-party beneficiaries

Add to it, using appropriate vocabulary

Then, flesh out each section. Make sure to use appropriate vocabulary terms so that
you can bold and emphasize these terms in your MEE answer. Some terms you want
to be able to use are:

• Offer
• Acceptance
• Consideration (bargained-for exchange)
• Revocation of offer
• Firm offer
• Option contract
• Expectation damages, restitution, mitigation
• Rejection of goods vs. revocation of acceptance of goods
• Perfect tender rule
• Express condition vs. constructive condition
• Anticipatory repudiation vs. prospective inability to perform

A timeline of when a contract is formed, how it must be performed, and what happened
if it is breached is helpful when trying to understand this vocabulary. For example, you
will see the event "revocation" twice. One occurs at the "Contract formation" stage when
an offeror revokes his offer. (An offeror can generally revoke his offer any time before
acceptance, absent some exceptions.) The other occurs at the time performance is
rendered under Article 2—a buyer can revoke his acceptance of goods in certain
circumstances (e.g., the defect substantially impairs the value to him, among other
requirements). So one occurs before a contract is even formed (the offer had not even
been accepted). The other occurs well after contract formation—not only has the offer
been accepted, but performance has been completed and there is a problem with the
goods sent.

Further, it is helpful to know that some issues will only come up in certain
circumstances. For example, the parol evidence rule is only going to be a true issue if
you have a final written agreement (or something that is arguably a final written
agreement). So there is no point in discussing it unless you see an arguably final written
agreement.

4. Be familiar with the UCC rules vs. common law rules

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The UCC rules are very different than the common law rules and application of one body
of rules often will lead to a different result than an application of the other. Since both
the UCC and the common law are regularly tested, you need to be very aware of these
distinctions. Luckily, we have compiled the primary differences into this convenient
chart:

Click on the chart to open it in a new window and make it bigger.

5. Practice!

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Practice is critical if you want to master Contracts on the MEE. As an added bonus, you
may also see your MBE score improve if you practice writing answers to Contracts
essays.

Here are some links to (free) Contracts MEE questions and NCBE point sheets. (If you
would like to purchase a book of Contracts MEE questions and NCBE point sheets, check
out our MEE books here. You can also see some additional exams on the NCBE website
for free here.)

• Feb 2013 MEE: this covers Article 2 performance issues


• Feb 2012 MEE: this covers common law performance issues
• Feb 2011 MEE: this covers contract formation and damages issues

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Topic 7: Criminal Law on the Multistate Essay Exam: Highly
Tested Topics and Tips
Criminal Law appears consistently on the MEE, even if it is not tested quite as much as
other MEE subjects.

Note that when we refer to "Criminal Law" generally, we are referring to both Criminal
Law and Procedure. (As noted below, they are both tested relatively equally!)

Here, we give you tips for approaching Criminal Law on the MEE and we reveal some
of the highly tested issues in Criminal Law MEE questions.

Criminal Law on the Multistate Essay Exam

1. First, be aware of how Criminal Law is tested

Criminal Law is tested with relative frequency. It is tested, on average, a little less than
once per year.

Note that, in general, Criminal Law or Criminal Procedure is tested. (They have been
combined before, but usually, it is one subject or the other that's tested.) Criminal Law
and Criminal Procedure are tested about evenly—so the chances of seeing a Criminal
Law question are about as good as seeing a Criminal Procedure question.

Recently (on the July 2017 and July 2016 MEEs) Criminal Procedure was combined with
Evidence. In both cases, a Miranda issue was tested with hearsay. This is a recent
"crossover" between these two subjects but it's good to be aware of it in case the
Examiners decide to test Criminal Law in this way again!

2. Be aware of the highly tested Criminal Law issues

The Examiners tend to test several of the same issues repeatedly in Criminal Law MEE
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Criminal Law Multistate Essay Exam issues include:

Homicide

In the area of Criminal Law, homicide is the most highly tested topic. Homicide is also
very important to know for the MBE since 3–4 scored MBE questions will test homicide.
For your purposes, the most important thing you can do is to understand the
distinctions between first- and second-degree murder, and voluntary and involuntary

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manslaughter. To assist you, we have a chart which may help keep these distinctions
straight!

The issue of causation often is tested with homicide. Remember that the defendant's
actions must be the actual and proximate cause of the victim's death. (Apply the same
principles you learn when you study negligence in Torts.)

Insanity

The defense of insanity (the M'Naghten test) has appeared on the bar exam. We
recommend you review the February 2018 MEE point sheets to see how much detail
this was tested in on that exam. (Another defense that has been tested is duress.)

The Fifth Amendment

The most tested topic, by far, in Criminal Law and Procedure MEE questions is the Fifth
Amendment. Specifically, Miranda warnings. You should know:

• When are Miranda warnings needed? When there is a "custodial


interrogation."
• How are Miranda rights waived? They are waived if the suspect makes a
"knowing, intelligent, and voluntary" waiver.

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• How are Miranda rights invoked? The suspect must be explicit, unambiguous,
and unequivocal in invoking his rights. (So, he must say something like, "I want
a lawyer" or "I am exercising my right to remain silent." He cannot merely say "I
think I want a lawyer" or remain silent when asked questions.)
• What happens if a violation occurs? The statements are excluded from the
prosecutor's case-in-chief. However, any "physical fruits" can be admitted
against the defendant if the defendant made the statements voluntarily. Students
often mix this up! So, let's say a defendant was not properly given Miranda
warnings despite that fact that he was in custody and being interrogated. And
let's say he confessed to murdering a victim and stated, "the weapon is in the
cellar of my uncle's basement." The prosecutors thereafter recover the weapon.
The defendant's statements could not be admitted against him in the prosecutor's
case-in-chief. However, the "physical fruits"—in this case, the weapon—could be
(assuming the defendant made his statements voluntarily).

The Fourteenth Amendment and Sixth Amendment have also appeared on Criminal
Procedure MEE questions. However, the Fifth Amendment is the Examiners' favorite
issue to test.

Also, please memorize the key vocabulary above (e.g., "custodial interrogation,"
"knowing, intelligent, and voluntary" waiver). These are words that the graders will be
looking for as they scan your essays and award you points!

The Fourth Amendment

The Fourth Amendment prohibition against unreasonable searches and seizures has
also appeared with frequency on Criminal Procedure MEE questions. We recommend
you review:

• When the Fourth Amendment applies


• Standing (a person must have a reasonable expectation of privacy)
• Warrant requirements
• Warrant exceptions

These are very broad topics but it is necessary to have a good grasp on them for both
MEE and MBE purposes!

3. Learn basic definitions to introduce each topic

There are some introductions that the grader will expect to see for certain topics. It is
helpful to be aware of these (and memorize the basic ideas in them) so you can state
them if you see a topic tested. For example:

• "Malice aforethought" in murder: "Malice aforethought" is a term of art, and it


encompasses several different mental states. In most jurisdictions, the malice
aforethought requirement is satisfied if the defendant acted with intent to kill,

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with the knowledge that his acts would kill, with intent to inflict great bodily
harm, or with reckless disregard of an extreme risk to human life (a depraved
heart).
• Miranda: Law enforcement officers are required to read Miranda warnings to a
suspect when the suspect is subjected to an in-custody interrogation. If the
officers were required to read the warnings and failed to do so, the statements
should be suppressed.
• Interrogation: "any words or actions on the part of the police . . . that the police
should know are reasonably likely to elicit an incriminating response” from the
suspect.
• Custody: a substantial seizure, and is defined as either a formal arrest or
“restraint on freedom of movement of the degree associated with a formal
arrest.”
• Fourth Amendment: the Fourth Amendment applies to searches or seizures
conducted by government agents in areas where the complaining individual has
a reasonable expectation of privacy.

Being able to define key concepts will go a long way to build credibility with the grader.
They will also help you accurately apply the law and conclude on a given issue. We
recommend you highlight other key words or definitions as you study your Criminal
Law and Procedure outline.

Some students (especially those that did not take Criminal Law or Procedure in law
school) find it helpful to make a separate page of vocabulary terms or "key words" to use
in an essay answer. We recommend you try that if you struggle with the vocabulary.

4. Practice!

Practice is critical if you want to master Criminal Law and Procedure on the MEE. As
an added bonus, you will probably also see your Criminal Law MBE score improve since
Criminal Law is tested on both the MEE and MBE.

Here are some links to (free) Criminal Law and Procedure questions and NCBE point
sheets. (If you would like to purchase a book of Criminal Law and Procedure MEE
questions and NCBE point sheets from 2005 to the present, check out our MEE
books here. You can also see some additional exams on the NCBE website for free here.)

• July 2012 MEE: homicide distinctions


• July 2011 MEE: Fourth and Fifth Amendment
• July 2009 MEE: this covers Criminal Law and Procedure issues

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Topic 8: Evidence on the Multistate Essay Exam: Highly Tested
Topics and Tips
Evidence is regularly tested on the MEE. It is tested, on average, about once a year. Here,
we give you tips for approaching Evidence on the MEE and we reveal some of the highly
tested issues in Evidence questions.

Evidence on the Multistate Essay Exam

1. First, be aware of how Evidence is tested.

Evidence is tested, on average, about once a year. It is generally tested on its own (i.e.,
it is not combined with another subject). However, it has been tested with Criminal
Procedure in recent years (hearsay issues have been combined with Miranda issues)
(see frequency chart).

Evidence is somewhat predictable in terms of what is tested. However, it is a difficult


subject to learn so even if it is predictable, it is not always easy to master MEE questions
that test Evidence. Here, we give you some tips for writing answers to MEE questions
and how to approach Evidence generally so that it makes sense to you.

2. Be aware of the highly tested Evidence issues

The Examiners tend to test several of the same issues repeatedly in Evidence MEE
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Evidence Multistate Essay Exam issues include:

Hearsay

Hearsay is, by far, the most tested MEE issue in Evidence questions. If you see hearsay
tested on the MEE, remember to introduce it properly before analyzing exceptions. This
way, you will connect the dots for the graders. Say that hearsay is “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Then discuss exceptions. A few of
the Examiners' favorite exceptions to test are the following:

• Excited utterance: an excited utterance is a “statement relating to a startling


event or condition made while the declarant was under the stress or excitement
that it caused.”

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• Present sense impression: a present sense impression is “a statement describing
or explaining an event or condition made while or immediately after the
declarant perceived it.”
• Statement for purpose of medical treatment or diagnosis: these statements
must be made for and reasonably pertinent to medical diagnosis or treatment and
describe medical history, past or present symptoms or sensations, their
inception, or their general cause.
• Business records: A record of “acts, events, conditions, opinions, or diagnoses”
is admissible if it is made “at or near the time” of the event recorded by a “person
with knowledge” of the event. Further, the making of the record must occur in
the course of a regularly conducted business activity, and it must be the regular
practice of the business to make such a record.

We recommend you make a list of: (1) hearsay exclusions, (2) hearsay exceptions that
require unavailability, and (3) hearsay exceptions where the declarant is unavailable.
Then, state each of the rules' elements and memorize the elements. You can even put
them on different colored notecards (say, the first category on blue notecards, the
second category on green notecards, and the third category on pink notecards). It is
helpful to do this so you can keep the exceptions and exclusions straight and apply them
properly when they are tested.

Impeachment

Impeachment is another topic that you will see tested frequently on the MEE. We
recommend you memorize the seven ways to impeach a witness. Also, remember why
impeachment evidence is being admitted. It is being admitted to show that the
jury should not believe the witness. Here, we don't list each of the rules for the seven
categories of impeachment but we remind you why the evidence is permitted to be
offered.

• Prior inconsistent statement: Any prior inconsistent statement can be admitted


to show that the jury should not believe the witness because the witness said
something inconsistent in the past. (Note: extrinsic evidence is available in
certain circumstances.)
• Bias: evidence of bias can be used to show that the jury should not believe the
witness because they are biased (e.g., this would be used if a witness is testifying
in favor of their mom!).
• Conviction of a crime: if a witness was convicted of a crime and if it meets the
rules' requirements, this could be admitted to show that the jury should not
believe the witness because clearly they don't take the law (and the oath they just
took) that seriously.
• Prior bad acts: These must relate to truthfulness. Essentially, if the witness did
something like cheat on the bar exam (even if there was no "conviction") it can be
used to show that the jury should not believe the witness.

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• Reputation or opinion for untruthfulness: if the witness has a reputation for
being untruthful or if, in someone's opinion, the witness is untruthful, this can be
used to show that the jury should not believe the witness.
• Sensory deficiencies: if the witness is testifying about what they saw, for
example, and they cannot see, this can be used to impeach the witness.
• Contradiction: if the witness made a mistake in her testimony, or lied, she may
be contradicted and this may be used to show that the jury should not believe her.

Again, you want to learn the nitty-gritty rules for each category of impeachment—
including when extrinsic evidence can be offered, when the witness must be confronted
on the stand, etc. But, always keep in mind why evidence is being offered as you learn
the rules.

Other evidentiary issues

Other issues that are tested are character evidence, relevancy, policy exclusions,
witness testimony, among others. It is important to know your Evidence outline well as
you will need to have a solid understanding of Evidence for both the MEE and the MBE!

3. Make a visual map of why evidence is being offered

Often, we see students get confused and misapply rules because they apply a character
evidence rule when impeachment is being tested. Or they apply a hearsay rule when a
statement is not being offered for its truth.

If you struggle with this, reorganize your outline to ask "Why is evidence being offered?"
and structure the topics around this. Then, when you get to a MEE question that asks
you whether evidence can be admitted, think about why the party wants to admit the
evidence and apply the appropriate rules.

If evidence is being offered:

• to prove a statement was said, there is no hearsay issue (thus, you should
consider nonhearsay purposes for offering a statement—e.g., effect on reader or
listener);
• to prove a statement is true, there is a hearsay issue;
• to show the jury that they should not believe a witness, there is an impeachment
issue;
• to show a witness' good or bad character, there is a character evidence issue;
• to show some other purpose (e.g., motive, intent, lack of mistake, identity,
common scheme), there is a MIMIC issue.

Restructuring your outline can go a long way to helping you get a global understanding
of Evidence. This makes it much easier to memorize and apply evidentiary rules.

4. Learn the basic introductions to use for each set of rules that are tested

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Many of the concepts in Evidence should be defined or certain introductions should be
stated before you discuss them in an essay question. For example:

• Hearsay: hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.
• Relevancy: evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence, and the fact is of consequence in
determining the action.
• Lay witness: a lay witness must have personal knowledge and her opinion must
be rationally based on her perception, helpful to the trier of fact, and not based
on scientific, technical, or specialized knowledge.
• Expert witness: an expert witness must be qualified by knowledge, skill,
experience, training, or education and their testimony must be helpful to the trier
of fact and based on sufficient facts or data.
• Impeachment: generally, any party may impeach a witness.
• Character evidence: character evidence generally is inadmissible to prove that a
person acted in accordance with her character at the time the event occurred.

These are just some examples of how you may want to set up certain topics. Practicing
past MEEs is a great way to see how the Examiners prefer specific topics to be
introduced

5. Practice!

Practice is critical if you want to master Evidence on the MEE. As an added bonus, you
may also see your MBE score improve if you practice writing answers to Evidence
essays.

Here are some links to (free) Evidence MEE questions and NCBE point sheets. (If you
would like to purchase a book of Evidence MEE questions and NCBE point sheets, check
out our MEE books here. You can also see some additional exams on the NCBE website
for free here.)

• Feb 2013 MEE: hearsay


• Feb 2012 MEE: policy exclusions and other issues
• Feb 2011 MEE: impeachment and character evidence

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Topic 9: Family Law on the Multistate Essay Exam: Highly
Tested Topics and Tips
Here, we give you an overview of Family Law on the MEE. We will reveal some of the
highly tested topics and give you tips for approaching a Family Law MEE question.

Note that Family Law is regularly tested on the MEE. It is tested, on average, about once
a year.

Family Law on the Multistate Essay Exam

1. First, be aware of how Family Law is tested

Family Law is tested about once a year. It used to be tested much more frequently when
the NCBE wrote 7–9 essays for states administering the MEE to choose from. (You
can read about that here if you are interested.) Now that MEE states no longer have a
choice about which six essays to administer (because the NCBE only administers six!)
Family Law has appeared less frequently.

Family Law generally is tested on its own. However, occasionally it will crossover with
a Conflict of Laws issue.

2. Be aware of the highly tested Family Law issues

The Examiners tend to test several of the same issues repeatedly in Family Law MEE
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

We note that a lot of commercial bar review courses spend a lot of time on topics that
are not highly tested (e.g., general requirements of marriage, defenses to fault-based
divorce, intra-family tort immunity, marital rape, family privacy, donor eggs,
gestational agreements, etc.). As a result, some examinees spend a lot of time on topics
that they are unlikely to see on the exam. Focus instead on the highly tested topics and
past MEE.

Some of the highly tested Family Law Multistate Essay Exam issues include:

Child custody and support

Child custody and support is regularly tested on the MEE. Here are a few topics that
have been tested:

• Custody: custody is determined by looking at the best interests of the child.

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• Child support: All states employ numerical guidelines and establish a rebuttable
presumption that the award that results from applying the guidelines is correct.
The guidelines must be applied in all cases, regardless of the parents’ marital
status. The court will look at factors like income and earnings of the parents, the
number of children and their ages, and any special needs of the children.
• Modification: custody or support can be modified if there is a substantial change
in circumstances.
• Rights of the biological father: Biological fathers generally have rights.
However, the state may make the parent exercise his rights within a specific time
(e.g., two years).
• Business records: A record of “acts, events, conditions, opinions, or diagnoses”
is admissible if it is made “at or near the time” of the event recorded by a “person
with knowledge” of the event. Further, the making of the record must occur in
the course of a regularly conducted business activity, and it must be the regular
practice of the business to make such a record.

Property division and alimony

A few tested topics are the following:

• Marital vs. separate property: Marital property is property acquired during the
marriage and is subject to division. Separate property includes (mnemonic
= BIG): property acquired before the marriage, an inheritance, or a gift to one
party. Most states do not count professional degrees earned during the marriage
as marital property. Separate property is generally not subject to division.
• Premarital agreement: A court will enforce a premarital agreement so long as it
is voluntarily made, substantively fair, and if full disclosure of assets and
obligations was made. A court will not, however, enforce a premarital agreement
regarding child custody or support if it is not in the best interests of the child.
• Alimony: Alimony can be permanent, temporary, or granted in a lump sum. All
states consider many factors, with the parties’ financial resources and needs,
marital contributions, and marital duration being relevant in almost all
jurisdictions. These awards are not final and can be modified if there has been a
substantial change in circumstances.

Other Family Law issues

• In Family Law on the MEE questions, both the Uniform Interstate Family
Support Act (UIFSA) and the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) generally are applied.
o The UIFSA governs child support. Once a child support order is registered,
it may be enforced by any state. The state that originally issued a child
support order has exclusive jurisdiction to modify the order if the state
remains the residence of the obligee, the child, or the obligor, and at least
one of the parties does not consent to the use of another forum.

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o The UCCJEA governs child custody orders. This statute incorporates
various tests. Under the home state test, the “home state” has exclusive
jurisdiction to modify a decree. A home state is a state where the child has
lived with a parent or person acting as a parent for at least six consecutive
months immediately before the commencement of the child custody
proceeding. A home state continues to have exclusive jurisdiction to issue
a custody order for six months after a child leaves the state, so long as a
parent (or person acting as a parent) still lives in the state. The significant
connections test applies if a child has no home state. Under this test, a
state may exercise jurisdiction based on (1) significant connections with
the child and at least one parent and (2) the existence of substantial
evidence relating to child custody in the forum jurisdiction.

3. Be aware of how certain Family Law topics are tested

Certain topics tend to be tested in specific ways. For example:

• When common law marriage is tested, in general, the parties are not able to
prove that a common law marriage exists. It is difficult to prove the existence of
a common law marriage, so usually, the parties fail. (But, there has been an
exception where there arguably was a common law marriage.)
• Retroactive modification of child support has been tested regularly—and if you
remember that federal law forbids retroactive modification of child support
(absent circumstances like fraud), you will answer this question right when it is
tested. The outcome is always the same on the MEE!
• When the UCCJEA is tested, generally the Parental Kidnapping Prevention Act
(PKPA) is also mentioned. It is very similar to the UCCJEA and the result is
virtually always the same, but it doesn't hurt to mention that "the result would
be the same under the PKPA" if you see a UCCJEA issue tested.

These are just some examples of how specific topics are tested. The best way to master
these topics is to practice past MEEs!

4. Practice!

Practice is critical if you want to master Family Law on the MEE. You will get exposed
to the kinds of issues the Examiners like to test as well as how they tend to be tested.

Here are some links to (free) Family Law MEE questions and NCBE point sheets. (If you
would like to purchase a book of Family Law MEE questions and NCBE point sheets
from 2000 to the present date, check out our MEE books here. You can also see some
additional exams on the NCBE website for free here.)

• July 2012 MEE: UCCJEA, child custody


• Feb 2011 MEE: divorce agreement, child support
• July 2010 MEE: premarital agreements and alimony

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• July 2009 MEE: relocation, child custody issues and support

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Topic 10: Real Property on the Multistate Essay Exam: Highly
Tested Topics and Tips
Real Property is regularly tested on the MEE. It is tested, on average, about once a year.

Here, we give you tips for approaching Real Property on the MEE and we reveal some
of the highly tested issues in Real Property MEE questions.

Real Property on the Multistate Essay Exam

1. First, be aware of how Real Property is tested

As noted above, Real Property is tested, on average, about once a year. It has been
turning up less frequently on recent exams, but it is certainly fair game for an MEE
question. Real Property is generally tested on its own (i.e., it is not combined with
another subject).

Real Property is a hard subject to learn for most students. It is best to focus on the highly
tested issues to begin with. And, also make sure you understand key Real Property
vocabulary, as we note below.

2. Be aware of the highly tested Real Property issues

The Examiners tend to test several of the same issues consistently in Real Property MEE
questions. You can maximize your score by being aware of these highly tested issues.
(We have a nice summary of these in our MEE One-Sheets if you want to see all of them
and have them all in one place.)

Some of the highly tested Real Property Multistate Essay Exam issues include:

Real estate contracts and deeds

Deeds

The concept of "deeds" frequently is tested when we see Real Property on the MEE.
Remember that there are two different types of deeds: the quitclaim deed and the
warranty deed.

• If a quitclaim deed is given, the grantee gets whatever the grantor has. There are
no covenants.
• A warranty deed has six covenants: right to convey, seisen, no encumbrances,
further assurances, quiet enjoyment, and warranty.

Execution of the contract of sale

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The doctrine of equitable conversion states that as soon as the contract is signed (but
before closing), the buyer’s interest is real property and the seller’s interest is personal
property. The risk of loss passes to the buyer upon the signing of the contract. That
means if something happens to the property after the contract is signed—say, a tornado
destroys the house—then the buyer still must close and pay the seller the full purchase
price (assuming the property is not insured!).

Recording acts

If you see a recording act issue tested, you should start your answer by discussing the
common law principle of first-in-time first-in-right.

Remember that a grantor can only convey the rights it has at the time of conveyance.
Many states have implemented recording acts that change the common law result.
There are three different types of recording acts:

1. Notice acts: “A conveyance of interest in land is not valid against any subsequent
purchaser for value without notice unless it is recorded.” (This has the word
“recorded” but says nothing about recording first.) These tend to be tested on the
MEE.
2. Race-notice acts: “No conveyance of an interest in land is valid against any
subsequent purchaser for value without notice unless it is recorded first.” (This
act mentions both notice and “recording first," which is your cue it is a race-
notice act!)
3. Pure race acts: protects a subsequent purchaser who records first (rare and
virtually never tested!).

Be aware of the types of notice a grantee could have—actual, inquiry, or record notice.
Notice is frequently tested.

Mortgage liability

It would not be surprising to see a question on Real Property on the MEE test who is
liable on a mortgage when the title to the property gets transferred. It is not very
common, but it is important to understand these principles. We suspect it will show up
again! When the mortgagor transfers title to the property, the mortgage remains on the
property and the mortgagor is still personally liable for the loan.

Tip: of you mix up “mortgagor” and “mortgagee” remember, “it is better to be the
mortgagee” (or the bank).

• Generally, if the transferee takes the land “subject to” the mortgage, it will not
be personally liable. So, if Amy transfers land to Bob and he takes it subject to the
mortgage, she is personally liable. He is not liable. (Note: His land could be
foreclosed on if Amy does not pay the mortgage, so he may end up paying it to

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avoid foreclosure. In most states, this does not mean he “impliedly assumes” the
mortgage, so even if he does this, he is not liable.)
• If the transferee “assumes” the mortgage, it will be personally liable along with
the original mortgagor. So, if Amy transfers land to Bob and he “assumes” the
mortgage, the bank could go after Amy or Bob for the mortgage payments due.
They are both liable.
• Additionally, a novation can occur if the original mortgagor, the transferee, and
the mortgagee all agree that the mortgagor is no longer liable and the transferee
will assume all its duties. So, in the above example, if Amy transferred the land
to Bob. And, Amy, Bob, and the bank all agree that Amy is no longer liable and
Bob “steps into her shoes,” then only Bob is liable on the mortgage. Amy is no
longer liable.

In the first case, only Amy is liable. In the second case, Amy and Bob are liable. In the
last case, just Bob is liable.

Leases

The concept of leases turns up frequently in Real Property on the MEE. Be aware of the
following points:

• Assignment or subleasing is permitted as long as there is no language in the


original lease prohibiting it.
• The tenant has specific duties, including the duty to pay rent. If the tenant does
not pay rent but has abandoned the property, the landlord can sue the tenant for
damages or treat it as a surrender. Under the common law, the landlord has no
duty to mitigate damages. However, many states have instituted their own laws
requiring landlords to make a reasonable attempt to mitigate damages.

3. Use proper Real Property vocabulary

It is important to understand and be able to define key terms. We also think it is a good
idea to bold and underline these key "buzzwords" on your MEE answers. By doing so,
you will draw the grader's attention to them and maximize your potential points.

If you are trying to learn tricky Real Property concepts, making sure you understand
the key legal vocabulary can be very helpful.

Here are a few Real Property terms you should be aware of:

• Equitable conversion: The idea that the buyer's interest is real property as soon
as the contract of sale is signed, and the seller's interest is personal property (that
is, the money made from the sale). You can think that "in equity, the land converts
to the buyer" if you have trouble remembering this definition.
• Warranty deed: it contains six warranties (or covenants).
• Quitclaim deed: it contains no covenants.

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• Merger: once the closing occurs, the contract "merges" with the deed and the
buyer can only sue on the deed at that point.
• Wild deed: a deed that is not properly recorded in the chain of title—it is recorded
too early or too late.
• Mortgagor: homeowner or party responsible for the mortgage.
• Mortgagee: bank (or whoever lends money in exchange for a security interest)
• Term-of-years lease: This term is deceiving because it does not have to be "for
years." It just has a specific start and end date. You can also think of this as a "fixed
term" lease if it easier for you to remember it that way.
• Assignment: the tenant gives everything it has to an assignee.
• Sublease: the tenant plans on coming back to the property so it still has an
interest in the property.
• Easement: the non-possessory right to use the property of another (in other
words, an easement holder does not own the property that is subject to the
easement; it merely has a right to use the property).
• Joint tenancy: when parties own an equal interest in land with the right of
survivorship (as opposed to tenants in common, where there is no right of
survivorship).
• Adverse possession: when a party possesses land adversely (e.g., without
permission) that party can become the true owner of the land after the statutory
period has passed.

Being familiar with these key vocabulary terms will make learning Real Property easier.
And, it will also get you more points on an essay question if you are able to use the
proper vocabulary.

4. Practice!

Practice is critical if you want to master Real Property on the MEE. As an added bonus,
you may also see your MBE score improve if you practice writing answers to Real
Property MEE essays.

Note that since many Real Property issues are tested repeatedly, practice can make a
big difference. For example, many of the same concepts in February 2018 were tested
in February 2010! Any student who completed the February 2010 question would have
been at a big advantage on the February 2018 exam.

Here are some links to (free) Real Property MEE questions and NCBE point sheets. (If
you would like to purchase a book of Real Property MEE questions and NCBE point
sheets, check out our MEE books here. You can also see some additional exams on the
NCBE website for free here.)

• Feb 2013 MEE: landlord-tenant issues


• Feb 2012 MEE: easements, mortgages
• Feb 2010 MEE: recording act, covenants, class gifts issue

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Topic 11: Secured Transactions on the Multistate Essay Exam:
Highly Tested Topics and Tips
Here, we give you an overview of Secured Transactions on the MEE. We will reveal
some of the highly tested topics and give you tips for approaching a Secured
Transactions MEE question.

Note that Secured Transactions is regularly tested on the MEE. It is tested, on average,
about once a year.

Secured Transactions on the Multistate Essay Exam

1. First, be aware of how Secured Transactions is tested

As noted previously, Secured Transactions is tested, on average, about once a year. It is


generally tested on its own (i.e., it is not combined with another subject). However, it
has been tested with Negotiable Instruments (which is no longer tested on the MEE) and
has shown up in Sales and Real Property questions.

Secured Transactions is somewhat predictable in terms of what is tested. However, it


is a difficult subject to learn. Even predictable topics can pose challenges to those
familiar with them. Here, we give you some tips in terms of what to know and how to
best study for Secured Transactions on the MEE.

2. Be aware of the highly tested Secured Transactions issues

The Examiners tend to test several of the same issues repeatedly in Secured
Transactions MEE questions. You can maximize your score by being aware of these
highly tested issues. (We have a summary of these in our MEE One-Sheets if you want
to see all of them and have them all in one place.)

Some of the highly tested Secured Transactions Multistate Essay Exam issues
include:

Kinds of goods

Be aware of the distinctions between the four kinds of goods. Goods can be classified
into the following categories:

• consumer goods (bought primarily for personal, family, or household purposes),


• inventory (this is highly tested—examples include inventory at a store—e.g.,
anything being held for sale or lease, raw materials for that inventory, work in
process, or materials used or consumed in a business),

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• farm products (never tested), and
• equipment (anything that is not consumer goods, inventory, or farm products).

Some students spend a long time really focusing on how to classify the general
intangibles and intangibles. It is true that things like accounts and chattel paper have
been tested (very few times). But documents, commercial tort claims, investment
property, and general intangibles have not been tested on the MEE in the last 20+ years.
Focus on what is tested, especially if you did not take Secured Transactions in law
school.

Attachment

Attachment is how the lien "attaches" to the collateral. It is what makes the security
agreement binding as between the secured party and the debtor. If attachment does not
occur, the secured party will not have an enforceable security interest.

Be able to say that there are three requirements for attachment:

• (1) value must be given by the secured party to the debtor,


• (2) the debtor must have rights in the collateral, and
• (3) there must be a binding security agreement.

Attachment is something you should know very well! You should memorize these three
requirements and state them in your introduction any time that attachment is an issue.

Perfection

Perfection is frequently tested. It is an issue when there are multiple creditors who have
an interest in just one piece of collateral. This issue is similar to recording acts in Real
Property—whether a creditor followed a recording act is only relevant if there is more
than one creditor claiming priority in the land. And, the same is true here except
personal property is at issue rather than real property.

• You should know the different ways to perfect—filing, automatic perfection (for,
e.g., a PMSI in a consumer good), possession (not highly tested), and control (not
highly tested).
• One principle that has been tested over and over: When two secured parties have
a security interest in the same collateral, the first to file or perfect has priority. If
no party perfects, then the first to attach has priority. This principle has been
tested numerous times so make sure you memorize and understand it!

Other issues

A few other issues that have appeared on the exam:

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• Application of UCC Article 9 (it applies even if the parties do not realize that they
are entering into a secured transaction!)
• As a general rule, a buyer in the ordinary course of business takes free from a
security interest even if it is perfected. This principle has been tested quite a few
times.
• Default used to be tested pretty heavily but is not tested as often recently. It is
still worth it to know the rules regarding default, notice requirements, “self-
help,” etc. Some of the MEE answers are quite detailed regarding the notice
requirements.

3. Make sure you understand the basics

Secured Transactions is difficult to learn, especially if you are learning it for the first
time in bar prep. If you are learning it for the first time, focus on the basics (e.g., what is
a security interest? What is attachment? What is perfection?).

It is very important to be well-versed in the vocabulary and know when it applies. We


recommend you seek tutoring or get help from a friend if you struggle with
understanding the basics of this subject because it is going to be very difficult to answer
a Secured Transactions question without an understanding of the fundamental rules.

A few notes on the basics

• Secured transactions are voluntary transactions. Both the creditor and the
debtor agree to it ahead of time. (It is not involuntary—like a judicial lien.)
• An example of how a secured transaction occurs: Let's say I ask you to borrow
$5,000. You don't trust me and say no. I say, "look, I'll give you my ring, worth
$5,000, to hold onto. So if you lend me the money, and I don't pay you back, at
least you have my ring that you can sell and get the money that way. And when I
am paid in full, you give it back." You agree. This is a secured transaction (even if
we don't call it that or don't know what it is). I am the debtor because I owe you
money. You are the creditor and the secured party. And the ring is the collateral.
• Both the creditor and the debtor have the same goal—they both want the debtor
to pay the debt. Neither party wants the secured party to have to foreclose. Some
students are under the impression that the secured party wants to foreclose on
its interest. (In the example above, you don't want to have to sell my ring. That is
a hassle! You would much rather that I just pay you back under the terms of
whatever our agreement is.)
• As noted above, attachment is how the security agreement "attaches" to the
collateral. It is what makes it enforceable. Generally, an authenticated writing is
needed (but not always—e.g., not in the case where the secured party has
possession, like above).
• Perfection is only an issue when more than one creditor is fighting for priority in
the same collateral. It comes up a lot on the MEE!

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4. Learn the basic introductions and vocabulary to use for each set of rules that are
tested

When Secured Transactions is tested, using key words ("attachment," "perfection,"


"secured party," "debtor," "default," etc.) is key. Some students write entire Secured
Transactions essay answers without using one of these words! Even if they understand
the basic principles, if they cannot articulate the proper vocabulary to use, they will not
score high.

So, make sure you memorize these key vocabulary words as well as the introduction to
the terms, which are stated above (e.g., "attachment has three
requirements...(1)...(2)...(3)").

If you do this, you will walk into the exam more confidently because you will have
something to write right away. Also, you will maximize your points on the MEE because
the grader will certainly be looking for these basic elements in your Secured
Transactions MEE answer.

5. Practice!

Practice is critical if you want to master Secured Transactions on the MEE. Some of the
concepts are difficult to learn in theory but make much more sense after you see how
they are actually tested on the MEE. And, many concepts are tested in the same way on
the MEE.

Here are some links to (free) Secured Transactions MEE questions and NCBE point
sheets. (If you would like to purchase a book of Secured Transactions MEE questions
and NCBE point sheets, check out our MEE books here. You can also see some additional
exams on the NCBE website for free here.)

• Feb 2013 MEE: attachment, perfection, buyer in the ordinary course of business
• July 2011 MEE: attachment, perfection, default
• July 2009 MEE: Article 9, perfection, default

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Topic 12: Torts on the Multistate Essay Exam: Highly Tested
Topics and Tips
Torts is regularly tested on the MEE. Thus, it is important to be aware of the key
principles that are tested and how to approach this MEE topic generally.

Torts on the Multistate Essay Exam

1. First, be aware of how Torts is tested

Torts is tested about once a year on the MEE. While it is frequently tested on its own
(i.e., it is not combined with another subject), it has been combined with Agency
(recently, where issues of vicarious liability of an employer was tested).

Torts is predictable. Basic Tort principles are tested and if you are familiar with the
highly tested topics, you should be well on your way to writing a high scoring Torts
MEE answer.

2. Be aware of the highly tested Torts issues

The Examiners tend to test several of the same issues repeatedly in Torts MEE
questions. You can maximize your score by being aware of these highly tested issues.
(We have a summary of these in our MEE One-Sheets if you want to see all of them and
have them all in one place.)

Some of the highly tested Torts MEE issues include:

Negligence
The basics

When we see Torts on the MEE, negligence is by far the most heavily tested topic. Thus,
it would be very beneficial for you to focus significantly on this issue. In general,
remember that the basic elements are: duty, breach, causation (both actual and
proximate), and damages. It is critical to understand these four elements. Many
students understand negligence generally but struggle with topics of actual and
proximate causation, or duty. If you find yourself in this boat, seek tutoring, rewatch
your bar exam course lectures, or get help from a friend. These tricky topics (causation,
duty) are highly tested on the MEE! Indeed, causation also appears in Criminal Law MEE
questions that test homicide. So you could even see a causation issue in that MEE
question!

And, as noted below, negligence is the most-tested topic on the MBE. It is worth it to
learn it well!

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Children and their duty

Generally, a child owes the duty of care of a hypothetical child of similar age,
intelligence, and experience, acting under similar circumstances. One exception is when
the child is engaging in an adult activity. Additionally, some states follow the “tender
years doctrine,” where children under a certain age (e.g., seven years old) cannot be
found negligent (though this is not commonly applied on the MEE).

Premises liability

This topic has turned up in three of the most recent years that we’ve seen Torts on the
MEE. The standard of care depends on the plaintiff's legal status at the time of entry.

• Undiscovered trespassers are not owed a duty of care (but the landowner cannot
act willfully or maliciously).
• If the trespasser is “discovered" (that is, the landowner knows or should know of
the trespasser), then the landowner must warn or make safe any unreasonably
dangerous concealed artificial conditions that the landowner knows of.
• For licensees (e.g., social guests—like friends or family), most MEE answers state
that landowners owe the duty to reveal hidden dangers of which the landowner
knows or has reason to know of and which the entrant is unlikely to discover.
(However, there is no duty to inspect.)
• For invitees (e.g., those that are invited onto land open to the public or into
businesses), the landowner must warn or make safe all dangers that the
landowner knows or should know of. For this category of entrants, there is a
duty to inspect.

Negligence per se

If a question involving Torts on the MEE presents a statute that establishes a duty of
care, you should consider negligence per se. To sue under this theory, the plaintiff must
show that (1) the defendant violated the statute without excuse, (2) the plaintiff was in
the class of people the statute was trying to protect, and (3) the plaintiff received the
injury that the statute was trying to prevent. If these three things can be demonstrated,
then the plaintiff has proven the duty and breach elements of negligence.

Remember that just because the plaintiff proves the elements of duty and breach does
not mean they automatically win the case! The plaintiff must still prove cause and harm!

Vicarious liability (usually coupled with Agency)

Vicarious liability is a more commonly tested topic in Torts on the MEE. You should
understand that employers or principals are vicariously liable for torts of their
employees or agents if the torts are committed within the scope of their employment.
This is usually considered both a Torts and an Agency question when it is tested, as this
is a common Agency principle.

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Other topics

Be familiar with other topics like strict products liability, strict liability for abnormally
dangerous activities, and intentional torts.

3. Focus a lot of your study time on negligence

Negligence is the most tested topic in Torts on the MEE. It is also the most-tested topic
on the MBE portion of the bar exam (with 12–13 questions covering negligence!). So,
focus a lot of study time on negligence. If you happen to see an essay question on
negligence, you will pick up a lot of points because you will get credit for that and for
the 12–13 MBE questions that will assuredly be scored questions on the MBE! Dedicating
a lot of time to making sure you have mastered negligence is a key way to study
efficiently for the bar exam.

4. Practice!

Practice is critical if you want to master Torts on the MEE. Some of the concepts are
difficult to learn in theory but make much more sense after you see how they are
actually tested on the MEE. And, many concepts are tested in the same way on the MEE.

Here are some links to (free) Torts MEE questions and NCBE point sheets. (If you would
like to purchase a book of Torts MEE questions and NCBE point sheets, check out
our MEE books here. You can also see some additional exams on the NCBE website for
free here.)

• July 2012 MEE: negligence


• Feb 2012 MEE: negligence, vicarious liability
• Feb 2011 MEE: battery, strict products liability

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Topic 13: Wills and Trusts on the Multistate Essay Exam: Highly
Tested Topics and Tips
Here, we give you an overview of Wills and Trusts on the MEE. We will reveal some of
the highly tested topics and give you tips for approaching Wills and Trusts MEE
questions.

Note that both Wills and Trusts regularly appear on the MEE.

Wills and Trusts on the Multistate Essay Exam

1. First, be aware of how Wills and Trusts are tested on the Multistate Essay Exam

Wills and Trusts are often tested separately on the MEE. So you will likely see a Wills
question or a Trusts question (but not both). An exception to this was in July 2017, when
both a Wills issue and a Trusts issue appeared in the same question. You can see the
relative frequency of Wills and Trusts questions in this chart:

Wills and Trusts tend not to be combined with other subjects, though Wills was
combined with Conflict of Laws once in the past.

A few notes:

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• Wills is commonly referred to as "Decedents' Estates" by the NCBE.
• Trusts is referred to as "Trusts and Future Interests." Class gift and future
interest problems often are tested in Trusts questions. Most students learn class
gifts and future interests in conjunction with Real Property, so just be aware that
you may very well see those issues tested in Trusts questions—they often are!
• When the NCBE wrote 7–9 questions for the MEE and gave jurisdictions the
choice of questions to administer, the NCBE often included both a Wills
question and a Trusts question. (And presumably, most jurisdictions would
choose one to administer.) However, one or the other has appeared on the
Uniform Bar Exam (UBE) (as you can see from the chart above). In other words,
you likely won't see a full Wills question and a full Trusts question on the MEE
or Uniform Bar Exam.

2. Be aware of the highly tested Wills and Trusts issues

The Examiners tend to test several of the same issues repeatedly in Wills and Trusts
MEE questions. You can maximize your score by being aware of these highly tested
issues. (We have a summary of these in our MEE One-Sheets if you want to see all of
them and have them all in one place.)

Some of the highly tested Wills Multistate Essay Exam issues include:

Intestate succession

One of the more frequent fact patterns in Wills on the MEE is a decedent who dies
without a will or an incomplete will. The fancy word for this “intestate”—so we look to
the laws of “intestate succession” (e.g., who will be a successor to the property if the
person dies without a last will and testament!). If the decedent’s spouse and parents do
not survive the testator, there are two main schemes on how to divide the property
among the children.

The first is per capita at each generation. To decide who gets what, find the first
generation where there are children living. Give one share to each living child and one
share for each in that generation who died but left surviving children of their own.
Then, combine all the shares of the deceased persons and divide them equally at the next
generational level. The key is that every individual at each generational level is treated
alike.

The second scheme is per capita with representation (or modern per stirpes). The
process begins the same, but instead of combining the shares of the deceased to
distribute evenly, the children of the deceased take the exact share that their deceased
parents would have. Thus, individuals at each generational level may not be treated
alike.

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Validity of a will

Many states follow the general requirement that a valid will be in writing, signed by the
testator, and witnessed by two witnesses. The testator must be 18 years of age or older
and have the intent that the document serve as his will. However, even when you see
invalid wills on the MEE, consider whether the document could serve as a holographic
will. Holographic wills are recognized by about half of the states. They are valid if signed
and (in many states) the material portions are in the testator’s handwriting. The
Uniform Probate Code also provides for the court to use its dispensing power to save an
invalid will so long as there is clear and convincing evidence that the decedent intended
the document to be their will.

MEE Tip: Remember that even if it appears there is not a valid will, you should still
list the requirements (and note that they are not met) before discussing holographic
wills or the dispensing power. Connect all the dots for the grader to maximize your
score!

Revocation of a will

Questions in Wills on the MEE might test you on revocation by a physical act. This could
include the execution of a new will or by some other physical act, such as cancellation
or other writings on the document. This must be done with the intent to revoke the will.
Either the testator or someone acting at the testator’s direction and in his conscious
presence may revoke the will. Under the dependent relative revocation doctrine, a first
will is not revoked if a later will is found invalid. If a testator revokes a will or bequest
based on mistaken assumptions of law or fact, the revocation of the will is ineffective if
it appears that the testator would not have revoked had he had accurate information.

Finally, divorce revokes gifts in favor of a spouse. There must actually be a final
divorce, not just the filing for divorce.

Slayer statute

Under this statute, an individual who feloniously and intentionally kills the decedent or
who is convicted of committing abuse, neglect, or exploitation with respect to the
decedent forfeits all benefits with respect to the decedent’s estate. Voluntary
manslaughter counts as a felonious and intentional killing, while involuntary
manslaughter does not. When you see this tested in Wills on the MEE, pay close
attention to whether the killing was actually felonious and intentional.

MEE Tip: As it typically appears, the statute will not bar the gift because the killing
does not meet the requisite standard.

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Some of the highly tested Trusts MEE issues include:

Validity

A trust of personal property is valid if it has a trustee, a beneficiary, and trust


property. (Note: most commercial courses will give you a long definition to memorize,
but MEE points sheets keep it simple and tend to list those three requirements!)

A trustee manages the trust property and holds it for the benefit of the beneficiaries.
However, a trust will not fail for lack of a specifically-named trustee. The court can
appoint one. A trust’s beneficiaries must be definite and ascertainable. The same person
cannot be both the sole trustee and the sole beneficiary. The trust property, or trust res,
must be identifiable.

Revocability

If a trust is revocable, a settlor may terminate the trust if all beneficiaries are in
existence and all agree. After the settlor dies, an irrevocable trust can be terminated
through unanimous consent of both the income beneficiaries and the remaindermen.
Additionally, there must be no material purpose of the trust yet to be performed.

Types of trusts

A variety of different types of trusts have been tested in Trusts on the MEE:

• Pour-over will: One type is a pour-over will, where a will makes a gift to a trust.
These types of provisions will be valid so long as the trust is identified in the will
and the terms are incorporated in a writing executed before or concurrently with
the execution of the will. Under the modern approach, later-made amendments
to the trust are valid. Under the common law, amendments made after the
execution of the will are not valid.
• Discretionary trust: In a discretionary trust, the trustee has discretion to decide
when to make a distribution to a beneficiary. The beneficiary cannot demand any
disbursements. Neither can a creditor, except for child support or alimony in
some states. In a support trust, the trustee must pay what is necessary for the
beneficiary’s support. A spendthrift trust restrains both the voluntary and
involuntary transfer of a beneficiary’s interest. The only creditors that can reach
a beneficiary’s distribution before it reaches the beneficiary are child/spousal
support creditors, a judgment creditor who has provided services for the
protection of a beneficiary’s interest in the trust, the state or the United States,
or a creditor with a claim for necessaries (only some states recognize this
exception).
• Charitable trust: The final type of trust tested in Trusts on the MEE is a
charitable trust, or a trust created for a charitable purpose. It must have a large
number of not-readily-identifiable individuals. This type of trust may be
terminated if the charitable purpose becomes unlawful, impracticable, or

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impossible. However, cy pres may save the trust. If the purpose is no longer
possible, no alternative charity is named in the trust, and the court determines
that the settlor had a general rather than specific charitable intent, then cy pres
can be applied to modify or terminate the trust. This involves directing that the
trust property be distributed in a manner consistent with the settlor’s general
charitable intent.

3. Make sure you understand the vocabulary

You should be able to use and define basic Wills and Trusts vocabulary. A MEE answer
that does not use the appropriate vocabulary will appear incomplete. Further, it is much
easier to score higher if you understand exactly what the Wills and Trusts vocabulary
terms mean. Here, we list a few terms you should be familiar with:

Trusts

• Settlor (creates the trust)


• Beneficiary (benefits from the trust)
• Trustee (manages the trust)
• Testamentary trust (a trust created by a will)
• Pourover will (a will that gives a gift to a trust)
• Power of appointment (gives a beneficiary the power to designate who will
receive specific property)
• Rule of convenience (Unless otherwise stated, a class closes when one member is
entitled to a distribution. This is a Real Property concept that appears in Trusts
questions!)

Wills

• Ademption (failure of a gift)


• Codicil (a supplement to a will that modifies, adds, explains, or revokes a will)
• Descendant or issue (all lineal descendants—children, grandchildren)
• Devise or legacy (a fancy word for "gift" left by a will)
• Disclaim (to reject a gift, usually for tax purposes)
• Heirs (those who inherit property when the testator dies intestate—i.e., without
a will)
• Intestate (to die without a will)
• Predecease (to die before someone)
• Testate (to die with a will)
• Testator (a person who dies with a will)

4. Focus on past essays in conjunction with your bar review outlines

Many commercial courses seem to not teach Wills and Trusts exactly how it is tested on
the MEE. Here are a few examples:

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• Some courses mix up the words "per capita at each generation" and "per capita
with representation." So, the NCBE will state them one way but courses will
define them differently.
• Most courses focus a lot on calculating the share of a surviving spouse. This is not
really tested in much detail on the MEE.
• Issues regarding class gifts are complicated in Wills and Trusts questions.
Whether only class members take or whether class members can devise their
interest or whether the antilapse statute will save a gift are all issues that are
tested on the MEE but not taught in a lot of detail by commercial courses. (We
teach them in our MEE Essay Course and give an overview in our MEE One-
Sheets).
• The MEE has tested the parentelic method and consanguinity method of
determining heirship, which does not seem to be commonly covered by
commercial courses.
• Courses often list different elements of trusts, undue influence, and capacity that
sometimes appear on the MEE. Using slightly different definitions and stating
slightly different elements won't probably hurt your score, but it is probably
more advantageous to list those terms used by the NCBE.
• Some courses do not teach living wills or durable health care powers, which
appear on the MEE.

These are just some examples of how some commercial courses miss the boat in teaching
some of the topics that appear on Wills and Trusts MEE questions. So, while a course
might give a decent overview of Wills and Trusts, we recommend that you practice past
essays so you can fill in any gaps in your outline and maximize your score on any Wills
or Trusts MEE question that appears on your exam!

5. Practice!

Practice is critical if you want to master Wills and Trusts on the MEE. Some of the
concepts are difficult to learn in theory but make much more sense after you see how
they are actually tested on the MEE. And, many concepts are tested in the same way on
the MEE.

Here are some links to (free) Wills and Trusts MEE questions and NCBE point sheets. (If
you would like to purchase a book of Wills and Trusts MEE questions and NCBE point
sheets, check out our MEE books here. You can also see some additional exams on the
NCBE website for free here.)

• Feb 2011 MEE: Trusts: discretionary trusts, class gifts, the definition of child
• Feb 2011 MEE: Wills: validity, antilapse, abatement
• July 2009 MEE: Trusts: cy pres, UPIA, the duty of loyalty
• July 2009 MEE: Wills: Intestacy, undue influence

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We offer the following resources:

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