The actual exam is typically two or three days. Each state determines for itself how its examination is constructed. Typical components include multiple choice questions, essay questions, and performance tests.
Multistate Bar Examination +
All states except Louisiana include multiple choice questions developed by the NCBE. In addition, Guam, Northern Mariana Islands, Palau, and the Virgin Islands have adopted these multiple choice questions. These questions are given on the same two dates across the nation in every adopting jurisdiction—the last Wednesday of February and July. This part of the bar examination is called the Multistate Bar Examination (MBE).
The MBE consists of one hundred multiple choice questions in a three hour time period in the morning and another one hundred multiple choice questions in a three hour time period in the afternoon. Answer all two hundred questions as there is no penalty for incorrect answers. If you are down to the last five minutes and haven’t answered every question, fill in the rest of the answer grid and then go back and correct if you have time. Twenty-five of the questions are being evaluated for future use. Be sure to answer all two hundred questions as you will not know which questions are the test questions.
The MBE tests seven topics. Some of these topics have more than one part. For example, Contracts includes the common law and the Uniform Commercial Code Article 2. Similar, Criminal Law and Criminal Procedure are two distinct topics, although the NCBE considers them as one topic. The NCBE provides subject matter outlines for each subject to help applicants direct their study.
Criminal Law and Criminal Procedure
Federal Civil Procedure
The MBE is scored by the NCBE on a nation-wide basis. The twenty-five test questions are not included in the score. The raw score is thus determined by your correct answers to 175 of the questions minus any questions that the NCBE decides are not “good” questions. Why would a question be tossed out? Questions are tossed out when the nation-wide results show the question was ambiguous or that there truly was more than one correct answer. Your raw score is then scaled to reflect the difficulty of the exam vis-à-vis prior exams. It is that scaled score that is then used by the jurisdictions. Each jurisdiction decides how much weight to give that score. Uniform Bar Examination states weigh the MBE scaled score at 50%.
Essay Questions +
No matter who drafts the essay questions or what law is applied, essays require analyzing a set of facts, recalling the rule from memory, applying that law, and then communicating your analysis in written form. Whether the question is thirty minutes or sixty minutes, contains one major issue or a dozen issues, or covers one topic or three topics; the analysis is what counts in the end.
The Multistate Essay Exam (MEE) is written by the NCBE. Thirty jurisdictions currently utilize MEE questions. Six 30-minute questions are offered for each administration of the exam. Jurisdictions may decide which of the questions they use. Uniform Bar Examination states must use all six. Jurisdictions also decide the relative weight given to the MEE and other scores. Uniform Bar Examination jurisdictions weight the MEE component 30%.
The NCBE considers “[t]he purpose of the MEE is to test the examinee’s ability to
• identify legal issues raised by a hypothetical factual situation;
• separate material which is relevant from that which is not;
• present a reasoned analysis of the relevant issues in a clear, concise, and well-organized composition; and
• demonstrate an understanding of the fundamental legal principles relevant to the probable solution of the issues raised by the factual situation.”
The MEE covers the topics included in the MBE and additional topics. Table 1.1 lists these topics. Some of these topics are actually two separate topics. For example, Criminal Law has quite a different focus than Criminal Procedure. One focuses on the elements of crime, mens rea, and defenses while the other focuses on the constitutional protections afforded criminal defendants.
Agency and Partnership
Conflict of Law
Constitutional Law (federal)
Contracts (including UCC Article 2 Sales)
Corporations and Limited Liability Companies
Criminal Law and Procedure
Federal Civil Procedure
Trusts and Future Interests
Uniform Commercial Code: Secured Transactions
Most questions focus on only one area of law. Some questions may include more than one area of law. For example, Conflicts of Law is always paired with another topic such as Federal Civil Procedure or Family Law.
MEE questions are scored by each jurisdiction and not by the NCBE. Any questions about scoring should be directed to that jurisdiction. The raw scores are then sent to the NCBE, which takes the raw score and employs any weighting required by the jurisdiction. The NCBE determines the scaled score and returns it to the jurisdiction.
State-drafted essays are used in jurisdictions that do not use the MEE in whole. These jurisdictions may use a combination of MEE questions and state-drafted questions or rely solely on state-drafted questions. These questions are typically drafted by the members of the Board of Law Examiners for that state or by committees appointed by the board.
State-drafted essays may focus on specific aspects of that jurisdiction’s law or may focus on the same topics covered in the MEE. Texas, for example, tests consumer rights, including insurance; oil and gas; and bankruptcy. North Carolina includes legal ethics and taxation. Be sure to research the topics your state’s bar examination covers
Performance Tests +
(a) Multistate Performance Test
The Multistate Performance Test (MPT) adds another dimension to the skills tested on the bar examination. Just like the MBE and essay questions, the MPT is designed to test your analysis skills. The MPT is an assessment of “an examinee’s ability to use fundamental lawyering skills in a realistic situation.” This is accomplished by giving the applicant a drafting “task that a beginning lawyer should be able to accomplish.”
Good news! The MPT does not require that you have law memorized. Instead, it gives you the law to analyze and to apply that law to a set of facts. The facts are contained in a “File,” which can include letters, deposition transcripts, witness interviews, invoices—basically anything that an attorney uses to gather facts. Sometimes facts are missing and part of the applicant’s task is to identify those missing facts. Other facts are ambiguous or irrelevant. Your job is to recognize those situations and identify sources of additional facts.
The law is contained in a “Library.” This Library includes all the law you are to analyze—statutes, excerpts from cases, administrative regulations, or rules. You are not to support your analysis with other law that you know. You analyze what is given to you.
The MPT includes a memo from a partner at your firm or from a supervising district attorney requesting that you draft a particular document. The NCBE lists the different kinds of documents that have been included in past MPTs. Most of the time, the MPT is a letter, a memo, or a brief.
MPTs are graded by the jurisdiction, usually on the same scale as an essay question. That score is then sent to the NCBE who scales it according to each jurisdiction’s policies.
What is most challenging about the MPT are the time constraints. Each MPT is ninety minutes. Virtually every applicant will be time-pressured to complete the task. Time management is an essential strategy to perform well on the MPT. Chapter Five will give you specific suggestions for developing a game plan to do well on your MPTs.
(b) State Performance Tests
Some jurisdictions add their own performance tests. California, for example, requires two of its performance tests. They are similar to the style of the MPT, but focus on California law.