The National Conference of Bar Examiners released 10 sample civil procedure questions found here
This gives February 2015 examinees a taste of what to expect when civil procedure is unleashed as an MBE subject. But what do these questions reveal about how civil procedure is going to be tested on the MBE?
1. Master Federal Rule of Civil Procedure 12. You should know the 12(b) defenses and when a defense is waived (see 12(h)).
2. Know who can be served. Federal Rule of Civil Procedure 4 outlines what is required in a summons and who can be served. The MBE will present you with a fact pattern where a summons and complaint are served on someone who is not the registered agent or authorized by law to receive the documents. Remember, the FRCP does not state a general rule permitting service of process on just any third party at the defendant's place of business.
3. You will have to become very familiar with the cases of Erie Railroad Co. v. Tompkins and Klaxon Co. v. Stentor Elec. Mfg. Co., Inc.
Erie states that if a federal court is hearing a case that deals with a state law issue, it should apply the state’s substantive law, rather than relying on “federal common law.” When making civil procedure decisions, however, the federal court may use the Federal Rules of Civil Procedure instead of the state’s rules. Under the Erie, a federal court hearing a case based on state law must apply the state law to the case, unless some federal Constitutional provision or statute expressly preempts state law.
If this sounds confusing, then apply the Rules of Decision Act and ask yourself, "Is the issue in the case covered by the U.S. Constitution, a federal treaty, or a federal statute that preempts state law? If you can answer “yes,” then federal law applies. If “no,” then state law applies.
State laws about negligence are substantive. Klaxon posited that choice of law rules are substantive for Erie purposes. Thus, where there is a conflict of law, a federal court exercising diversity jurisdiction must apply the choice-of-law rules of the state where the court sits.
4. Study Federal Rule of Civil Procedure 38
Under Federal Rule 38(b)(1), a jury trial demand must be served no later than 14 days after ser-vice of the last pleading directed to the issue on which a jury is sought.
5. Brush up on when a Defendant may bring in a third party to a lawsuit. Federal Rule 14 states that a Defendant must add a claim against a third party within 14 days of serving its answer or seek leave of the court if it seeks to add the claim later than 14 days. Additionally, the Defendant cannot simply allege that the Plaintiff sued the wrong person. There must be a basis for the claim against the third party that they are liable for indemnification or contribution for the Plaintiff's damages.
6. Distinguish between judges striking potential jurors for cause and peremptory challenges.
Striking a potential juror for cause occurs when there is a presumption of bias. This presumption can arise from the potential juror's relationship with one of the litigants.
Peremptory challenges permit an attorney to disqualify a potential juror because the juror has displayed an attitude or characteristic that is unfavorable to the attorney’s client but that does not rise to the level of bias or a relationship to one of the litigants that would be grounds for a challenge for cause.
7. Understand when a motion for summary judgment is granted or denied. The standard for summary judgment is whether there is no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. Generally, motions for summary judgment which dispute the credibility of facts and evidence will be denied.
8. Know when a motion for judgment as a matter of law can be granted by a court. A motion for judgment as a matter of law takes the case away from the jury and it can be granted only if the court determines that the evidence is legally insufficient to allow the jury to decide the case.
9. Know the difference between claim preclusion and issue preclusion.
Claim preclusion (res judicata) prevents a claimant from splitting his cause of action; when the claimant loses a judgment, all possible grounds for relief arising out of the same transaction or occurrence are barred in future litigation between the same parties. Therefore, a plaintiff cannot split causes of action for loss of property and physical injury if they arise out of the same transaction or occurrence.
Issue preclusion (collateral estoppel) prevents a person from relitigating an issue.
10. Familiarize yourself with the standards of review on appeal. This is fertile ground for the NCBE to test you on.
You should be able to distinguish between harmless error, de novo, clearly erroneous, and abuse of discretion.
Harmless error: Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.
Federal Rule of Civil Procedure 61
De novo: This is a non-deferential standard that is used when reviewing questions of law, such as the meaning of a statute.
Clearly erroneous: Findings of fact in a bench trial are reviewed under the “clearly erroneous” standard. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
Abuse of discretion: Used on appeal when the trial court's determination as to whether evidence is prejudicial or irrelevant fails to take into proper consideration the facts and law relating to a particular matter, or there is an arbitrary or unreasonable departure from precedent and settled judicial custom.
There are many civil procedure topics to master and this article only deals with those topics found in the ten sample questions released by the NCBE.
For a complete overview of the tested topics, see the MBE subject matter outline.