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Test yourself—Multistate

Posted Oct 5, 2009 5:01 PM CDT

See related post, “Erica Moeser: A Bar For All.”

Below are sample questions from the three sections of the multistate bar exam offered by the National Conference of Bar Examiners. Answers for the multiple-choice questions follow the question. ###Multistate Bar Examination

A state university annually awards a tuition scholarship to a graduate student who, as an undergraduate, was a member of an intercollegiate athletic team of the university. The sole purpose of the scholarship program is to provide undergraduate student athletes with an incentive to excel in their academic studies. In recent years, the university has had approximately 500 undergraduates who are members of its intercollegiate athletic teams. About 350 of these students are men and 150 of them are women.

Does this scholarship program violate the equal protection clause of the Fourteenth Amendment?

A. No, because no graduate student has a legitimate claim of entitlement to a scholarship.

B. No, because the eligibility criteria and the sole purpose of the program are gender-neutral.

C. Yes, because it has a disparate impact on women and, therefore, improperly discriminates on the basis of gender.

D. Yes, because it unduly burdens the fundamental right of non-athletes to an education.

Answer: B

A grandfather loaned his grandson a high-speed power boat for the summer as a present for his 17th birthday. The grandson had twice been cited for drunk driving, and the grandfather hoped that the boat would help his grandson mature. However, while drunk, the grandson drove the boat at high speed into an expensive yacht, which had unexpectedly sailed into the small town harbor. The yacht was destroyed, and its owner has sued the grandfather to recover its cost. The grandfather has moved to have the suit dismissed.

Will the motion succeed?

A. No, because the grandfather is vicariously liable for the acts of his grandson.

B. No, because the grandfather might have been negligent in loaning the boat to the grandson.

C. Yes, because the grandfather could not have anticipated that an expensive yacht would sail into the small town harbor.

D. Yes, because the grandfather is not responsible for the acts of the grandson.

Answer: B

On March 1, a drummer entered into a contract with a band for an eight-week summer concert tour beginning June 1. The band had conducted such tours for the prior four summers and had made net profits of at least $25,000 during each of those summers. On April 1, the drummer informed the band that he would not perform on the summer tour because he had been offered a chance to play with another group that did not travel. The band was aware that there were other drummers available with skills comparable to the drummer’s, but the band decided to cancel the summer tour and spend more time at home.

Would the band be likely to succeed if it sued the drummer for its lost profits?

A. Yes, because the lost profits were reasonably foreseeable by the drummer at the time the contract was made.

B. Yes, because the drummer’s actions were the proximate cause of the band’s lost profits.

C. No, because the drummer did not bear the risk of lost profits in the event of breach.

D. No, because the band failed to take reasonable steps to hire a substitute drummer.

Answer: D

Multistate Performance Test

Glickman v. Phoenix Cycles, Inc.

The client, George Glickman, was demoted from his vice president position at Phoenix Cycles Inc. shortly after returning to work after taking nine weeks’ leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., to recover from a stroke and to care for his newly adopted baby. Glickman seeks legal advice regarding whether his employer’s actions violate the rights accorded under the FMLA, specifically, the right to be restored to a pre-leave employment or an equivalent position. The supervising partner has already spoken to Phoenix’s in-house counsel in an attempt to resolve Glickman’s claims without resorting to litigation.

Applicants’ task is to draft a follow-up letter persuasively setting forth the basis for Glickman’s claims under the FMLA, discussing the specific FMLA provisions that Phoenix has violated, explaining why the exceptions in the act for key employees do not apply, and setting forth the forms of relief to which Glickman would be entitled should the matter proceed to litigation.

The file consists of the instructional memorandum, a transcript of an interview with Glickman, a Phoenix Cycles’ press release, a letter to Glickman from the company regarding his FMLA leave and a management consulting firm’s report on Phoenix Cycles. The library contains excerpts from the FMLA and two federal cases.

In re Lisa Peel

Applicant’s law firm represents Lisa Peel, a private citizen who operates an Internet blog on which she posts news stories about local government, as well as movie reviews and items about her family activities. Following her post about a local school official taking $10,000 in audiovisual equipment for personal use, the district attorney subpoenaed Peel to testify before the grand jury and to produce all of her interview notes in an effort to get her to reveal the identities of the sources for her story. Peel seeks the law firm’s advice on whether she can resist the subpoena.

Applicants’ task is to draft a memorandum analyzing whether Peel would be considered a reporter under the Franklin Reporter Shield Act and would therefore be protected from being compelled to reveal her confidential sources.

The file contains the instructional memorandum from the supervising partner, the transcript of the client interview, a copy of Peel’s school-corruption post, a copy of the subpoena and a news article about the development of blogs as the newest form of journalism. The library contains excerpts from the Franklin Reporter Shield Act, various dictionary definitions and two cases.

Multistate Essay Examination

Contracts Question

Rancher conducts cattle roping clinics in various locations around the country. Rancher thought it would be more profitable to buy his own land and conduct the clinics there.

In March, Rancher bought the Bar-X Ranch (Ranch) with a large pasture on which Rancher could hold the roping clinics.

In April, before Rancher had offered any roping clinics on the property, Rancher agreed to allow Gasco, an oil and natural gas company, to explore for gas reserves on Ranch. Before the parties signed a contract, Gasco executives drove around Ranch, and Rancher pointed out to them the pasture where he planned to hold his roping clinics. Rancher told the Gasco executives, “I can’t wait to start holding my clinics here so that I won’t have to go on the road anymore. Every summer that I travel with my clinics costs me $50,000. It will cost me only $10,000 to work from Ranch.”

In July, Rancher and Gasco signed a contract in which Gasco agreed to complete its gas exploration and restore Ranch to its pre-exploration condition by March 31 of the following year. Gasco immediately began exploring for gas on Ranch.

By March 31 of the following year, Gasco had completed its exploration but chose not to restore Ranch to its pre-exploration condition. Because of Gasco’s failure to restore Ranch, the pasture was not usable, and Rancher had to cancel his plans to conduct roping clinics on Ranch that summer.

Rancher sued Gasco for breach of contract. At trial, an expert for Rancher testified that because of Gasco’s failure to promptly restore Ranch to its pre-exploration condition, it would cost $500,000 and take three years to restore Ranch. Furthermore, during that time Ranch could not be used for roping clinics.

An expert for Gasco testified that Ranch was worth only $20,000 less in its unrestored condition than if it had been restored to its pre-exploration condition. There was no other expert testimony.

Rancher testified that Ranch could not be used for roping clinics for the next three summers. Rancher estimated that 50 people would have attended the roping clinics each year, and each person would have paid a fee of $2,000, for a total of $100,000 per year. Therefore, Rancher seeks $300,000 for his losses.

The trial court found that there was an enforceable contract between the parties and that Gasco had breached the contract by failing to restore Ranch. The court awarded Rancher $500,000 for the cost of restoring Ranch to its pre-exploration condition and $300,000 for his losses.

  1. Did the court err in awarding Rancher the cost of restoring Ranch to its pre-exploration condition? Explain.

  2. Did the court err in awarding Rancher $300,000 for damages resulting from Rancher’s inability to conduct roping clinics on Ranch for three years? Explain.

Evidence Question

Plaintiff, an employee of Contractor, was injured while using a table saw manufactured by Defendant and owned by Contractor. Plaintiff sued Defendant in federal court to recover damages for his injuries.

At trial, Defendant called Witness, another employee of Contractor. Neither Witness nor Contractor is a party to Plaintiff’s action against Defendant. On direct examination, Witness testified that he saw Plaintiff remove a safety guard from the table saw on the morning of the accident.

During cross-examination by Plaintiff’s Counsel, Witness testified as follows:

PLAINTIFF’S COUNSEL: At the time you applied for your job with Contractor, you had three years of previous construction experience, didn’t you?


PLAINTIFF’S COUNSEL: Didn’t you lie about how much construction experience you had when you applied for the job with Contractor?

DEFENSE COUNSEL: Objection, inadmissible character evidence.

PLAINTIFF’S COUNSEL: We are impeaching this witness with a specific instance of untruthful conduct under Rule 608(b), your honor.

COURT: Overruled.

PLAINTIFF’S COUNSEL: I’ll repeat my question—didn’t you lie about how much construction experience you had?

WITNESS: No, I did not.

PLAINTIFF’S COUNSEL: Isn’t Plaintiff’s Exhibit 37 a genuine copy of your job application?

WITNESS: Yes, it is.

PLAINTIFF’S COUNSEL: Didn’t you lie on that application?


PLAINTIFF’S COUNSEL: We offer Plaintiff’s Exhibit 37.

DEFENSE COUNSEL: Objection, inadmissible character evidence.

COURT: Approach the bench. (The following occurred outside the hearing of the jury.)

PLAINTIFF’S COUNSEL: Judge, this is a copy of Witness’s job application in which he represented that he had 12 years of construction experience when he actually had only three.

COURT: Sustained.

Plaintiff’s Counsel then asked Witness to review Plaintiff’s Exhibit 37 to refresh his recollection about whether he had lied. Witness did so and then testified: “I didn’t lie.”

Plaintiff’s Counsel thereafter re-offered Exhibit 37, claiming that it was admissible under Rule 612 to refresh Witness’s recollection. Defense Counsel objected, and the court sustained the objection.

Later, Plaintiff’s Counsel called Contractor to testify. During direct examination, Plaintiff’s Counsel asked Contractor, “Did Witness tell you that he had 12 years of construction experience during his job interview?” Defense Counsel objected that this was inadmissible character evidence, and the court sustained the objection.

Did the court err in:

  1. Overruling Defense Counsel’s objection to cross-examination about an alleged lie by Witness? Explain.

  2. Sustaining Defense Counsel’s objection to the introduction of Exhibit 37 as inadmissible character evidence? Explain.

  3. Sustaining Defense Counsel’s objection to the introduction of Exhibit 37 to refresh the recollection of Witness? Explain.

  4. Sustaining Defense Counsel’s objection to Contractor’s testimony? Explain.

Contracts Question

Guest, a citizen of State A, ate oysters at Ron’s Restaurant in State B. Guest paid for the meal with a $50 check. Ron’s Restaurant is owned and operated by Ron, a citizen of State B.

After eating the oysters at Ron’s Restaurant, Guest ate an ice cream sundae at the ice cream shop next door, which is owned and operated by CreamCorp, a State B corporation with its principal place of business in State B.

An hour later, Guest became ill and went to a hospital emergency room. Guest had to be admitted to the hospital for several days of tests, treatment and observation. Ultimately the doctors concluded that Guest was suffering from a severe case of food poisoning. Guest’s hospital bills exceeded $75,000.

Guest stopped payment on the $50 check to Ron’s Restaurant before the check cleared and has not otherwise paid for the meal.

Guest sued Ron (doing business as Ron’s Restaurant) in the federal district court for the District of State B. Guest’s complaint alleged that the oysters she ate at Ron’s Restaurant caused her food poisoning. Guest further alleged that her damages exceed $75,000, exclusive of costs and interest.

Ron doubts that the oysters were contaminated because no other patrons suffered an adverse reaction to the oysters served that day. Ron believes that Guest became ill because the ice cream served at CreamCorp’s shop was made with unpasteurized milk. Thus, Ron has moved to compel the joinder of CreamCorp as an additional defendant in the lawsuit so that, if the jury concludes Guest became sick from the ice cream, it can render a verdict against CreamCorp and not Ron. Ron has also added to his answer a claim against Guest for the unpaid $50.

Guest objects to the joinder of CreamCorp. Guest has also moved to strike Ron’s claim for the unpaid $50 from Ron’s answer.

  1. Should the court order the joinder of CreamCorp as an additional defendant? Explain.

  2. Do the Federal Rules of Civil Procedure permit Ron to join his claim against Guest for the unpaid $50 to Guest’s lawsuit against Ron? Explain.

  3. If the Federal Rules of Civil Procedure permit Ron to join his claim against Guest for the unpaid $50, will the court have subject matter jurisdiction to hear that claim? Explain.

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