Pay Attention to the Memo Caption on the MPT
If you’re taking the bar exam in a jurisdiction where you’re asked to complete two Multistate Performance Tests, it’s likely that at least one of the two questions will require you to draft an objective memorandum. Since the February 2000 bar exam, examinees have been asked to prepare an objective memorandum on 42 of the 101 MPTs administered between February 2000 and the most recently administered exam in February 2022.
Your primary goals of an objective memorandum are two-fold: (1) to educate the reader—usually the senior partner—about the law relevant to a particular issue; and (2) to explain how that law will apply to the specific facts provided to you.
A memorandum presents an objective analysis of the law rather than makes a persuasive argument intended to advocate on behalf of one of your clients (unless, of course, you’re specifically instructed to do so in the Task Memo). Although an objective memorandum can be a tool in preparing a persuasive case, it is typically an in-house document that tries to predict how an impartial judge would decide the case.
As a new associate—which is the role you are assuming when answering the test question—you will typically write an objective memorandum to prepare a senior partner for a meeting with a client who wants to know how the law affects her situation and who is seeking legal advice from the firm.
How to properly structure and write an objective memorandum is beyond the scope of today’s post. What I do want to remind you about, however, is to make sure you write your objective memorandum to the individual who’s asking you to complete the assignment. You can find the name of that individual at the top of the Task Memo, which is the first document you will see in the File section of the MPT testing materials.
Since the individual’s name is provided to you, make sure you use the same name in your memo caption at the top of your response (e.g., “To,” “From,” “Date,” and “Subject”). After all, the examiners are asking you to complete a lawyer-like task that a new lawyer is expected to know how to do during their first year of legal practice. If the senior partner—let’s call her “Jennifer Smith,” for example—is asking you to draft a memorandum, you wouldn’t address the memorandum to “Senior Partner,” would you? First, there might be several senior partners at the firm. You want to direct the memorandum to the specific individual asking you to draft the objective memorandum. Second, you want to show respect to the senior partner who gave you the assignment.
Also, and this should go without saying, when you do include the individual’s name in your response, please make sure you spell the individual’s name correctly. With a last name like “Sangchompuphen,” I hate it when someone misspells my last name, especially when the individual who misspelled my name has access to the correct spelling of my last name.
Misspellings of proper names is an indication of carelessness. And carelessness is usually a sign that there might be other, more substantive problems forthcoming. While examiners may not deduct points for careless misspellings of people's names or case opinions, misspellings might cause the examiner to look for more substantive problems throughout the response—and you never want to give examiners more time for them to review your responses.
Below are the last 10 MPTs that have asked examinees to draft an objective memorandum, along with the names of the individuals who drafted the instructions in the Task Memo. Notice how some of the names aren’t always the most common way to spell the names (e.g., “Joann” instead of “Joanne” and “Isabel” instead of “Isabelle”).
February 2022:
Harold Huss (Painter v. Painter)
“I would like you to prepare an objective memorandum to me analyzing the following issues:”
July 2021:
Hon. Joann Gordon (Winston v. Franklin T-Shirts Inc.)
"Please prepare a memorandum to me analyzing the possible fair use claim."
February 2021:
Isabel Banks (In re Mills)
“I need you to draft a memorandum to me analyzing whether there is an enforceable contract between Mills and Ramble and what damages Mills might be entitled to if she were to sue Ramble for breach of contract.”
Late September 2020:
George Bunke (Klein v. State of Franklin)
“I would like you to prepare an objective memorandum to me analyzing two issues:”
February 2020:
Hiram Betts (Downey v. Achilles Medical Device Company)
“Please draft a memorandum to me analyzing two issues:”
July 2020:
Tony Briotti (Fun4Kids Terms of Service Agreement)
“Please prepare a memorandum to me (i) identifying and analyzing the relevant issues discussed in the client interview and (ii) making recommendations as to how to address those issues.”
July 2019
Alexandra Carlton (American Electric v. Wuhan Precision Parts)
“Draft a memorandum to me analyzing the following issues:”
Dana Carraway (Estate of Carl Rucker)
“Please prepare a memorandum for me that discusses the advantages and disadvantages of these two approaches.”
February 2019
Susan Daniels (In re Remick)
“Please draft a memorandum to me analyzing and evaluating whether Remick has a viable negligence claim against Dunbar. In addressing the element of duty, discuss the legal theories under sections 42 and 44 of the Restatement (Third) of Torts.”
February 2018
Emily Swan (In re Hastings)
“Please draft a memorandum to me analyzing whether Danielle can apply for and hold the could election judge position or the precinct chair position while simultaneously serving as a member of the board of directors for MUD 12.”
