"So You're Telling Me There's a Chance" I Might Have to Draft Interrogatories on the MPT?

Picture the scene. It’s fourth-and-goal from the 31 yard line with 43 seconds left in the annual Iron Bowl between the Alabama Crimson Tide and the Auburn Tigers. Alabama is down by four points.

ESPN Analytics gives the Crimson Tide a 00.1% chance of winning. What happens in the next 11 seconds is nothing short of unbelievable.

Alabama quarterback Jalen Milroe throws it deep to Isaiah Bond, who makes the catch in the corner of the end zone to give the Crimson Tide a shocking 27-24 lead and, ultimately, a victory to keep its slim College Football Playoffs hopes alive for another week.

Who cares that Auburn had a 99.9% chance of winning the game in which it found itself as 13.5-point underdogs at the beginning of the game? Certainly not the Crimson Tide.

In the immortal words of Lloyd Christmas in Dumb and Dumber: “So you’re telling me there's a chance.”

And the Crimson Tide took advantage of that chance, no matter how slim that might have seemed.

Now picture this scene. It’s the last Tuesday in February, and you find yourself sitting for the Uniform Bar Exam. You ready yourself to open the test packet, which happens to be the first of two Multistate Performance Tests that is administered during the Tuesday morning session. You’re hoping for an objective memorandum or a persuasive memorandum task—or even one of each if your jurisdiction administers two MPTs.

Your hope (and prediction) wouldn’t be far off base.

Since February 2000, the National Conference of Bar Examiners has drafted, licensed, and administered more than 100 Multistate Performance Test questions.

On the UBE, jurisdictions administer two MPTs each administration. Some non-UBE jurisdictions also administer one or two MPTs as part of their bar exams as well. In total, 50 jurisdictions administer at least one MPT as part of their bar exam. Only California, Florida, Louisiana, Nevada, Virginia, and Puerto Rico do not.

The MPT is designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a new lawyer is expected to accomplish. The MPT is not a test of substantive knowledge. Instead, it’s designed to assess fundamental skills lawyers regardless of the area of law in which the skills are applied.

Of the more than 100 MPTs since February 2000, the most commonly tested task is some sort of objective memorandum, which has been tested 45 times through the July 2023 bar exam. The second most commonly tested task is some sort of persuasive memorandum, coming in at 34 times. Letters—either to the client (more objective in nature) or to opposing counsel (more persuasive)—have appeared a total of 16 times.

Still, don’t be surprised if there’s an unusual task you’re asked to draft. And don’t be caught off-guard when it does happen, like the Auburn Tigers during the final minute of yesterday’s game.

The good news is that if you’re asked to draft an unusual draft, the MPT test packet will likely provide you instructions on how to draft that task as well as provide you with a sample of what the task should look like.

Some of the more unusual tasks that examinees have been asked to produce just once on the MPT since 2000 include the following:

Drafting arbitration clause (July 2011, In re Field Hogs, Inc.)

Rewriting contract provisions (July 2013, Palindrome Recording Contract)

Preparing an early dispute resolution statement (February 2010, Logan v. Rios)

Drafting interrogatories (July 2000, Pauling v. Del-Rey Wood Products Co.)

Drafting proposed findings of fact and conclusions of law (February 2017, In re Guardianship of Henry King)

Drafting provisions of Articles of Association (July 2018, Rugby Owners & Players Association)

So even though you should expect to draft an objective memorandum, persuasive memorandum, or a letter on the MPT, remember what Lloyd Christmas warns: there’s still “a chance” you’ll be asked to draft an unusual task.