Civil Procedure

Key Concepts to Know & How To Study for the MBE

Whenever there is a legal dispute between people, businesses, and/or other entities in the United States, specific procedures must be followed as the lawsuit proceeds through the legal system. These rules and steps are collectively part of Civil Procedure, an area of law known for being rather dense and nuanced and, thus, often dreaded by test-takers. Luckily, with our guidance, it doesn't have to be that way!

Civil Procedure has always been a highly tested topic on the Multistate Essay Exam (MEE®). In February 2015, the NCBE also added it to the list of MBE® tested subjects. Out of 175 scored multiple choice MBE questions, you can expect 25 questions to be based on Civil Procedure.

The National Conference of Bar Examiners (NCBE®) has divided Civil Procedure into seven categories:

Civil Procedure Topics	% Tested	Questions
Jurisdiction and Venue	22.20%	5-6
Law applied by federal courts	8.30%	2-3
Pretrial Procedures	22.2%	5-6
Motions	22.2%	5-6
Jury trials	8.3%	2-3
Verdicts and judgments	8.3%	2-3
Appealability and review	8.3%	2-3

Civil Procedure Breakdown by Topic, Weightage and Tested Questions

As you can see, some categories are more heavily tested than others. For example, 66.6% of the MBE questions deal with jurisdiction and venue, pretrial procedures, and motions, with each having 5–6 questions. The remaining four categories: Law applied by federal courts, jury trials, verdicts and judgments, and appealability and review, together make up only 33.3% of the questions, each with 2-3 questions.

Now that you know how the Civil Procedure subject is organized and weighted on the MBE, let’s really get into the weeds with what you really need to know to tackle a Civil Procedure MBE question.

Jurisdiction and Venue / State Law in Federal Court

There will be 5–6 questions on jurisdiction and venue. As you know from your first-year law classes, the US court system is made up of both state and federal courts. The first step in determining whether a case will be heard in a state or federal court comes down to distinguishing which court has jurisdiction, or the authority to hear the case.

The rule of thumb is simple: state courts have broader subject-matter jurisdiction, meaning most cases involving individual citizens, contracts and torts, and/or state laws will be seen in state courts; whereas federal courts are limited to only hearing cases involving the US Constitution or federal law (also known as federal-question jurisdiction), bankruptcy, and disputes between states or the United States and foreign governments.

One exception occurs through diversity jurisdiction, in which there are two main requirements:

the opposing parties reside in different states and
the amount involved in the dispute exceeds $75,000.

Sometimes a plaintiff who has a federal claim wants to add on a state claim or an additional party in a federal court. In this case, that court has jurisdiction over one claim but not the other, it can obtain supplemental jurisdiction over both if they stem from the same situation. The rules related to supplemental jurisdiction are discussed in further detail in the section on how to study for Civil Procedure on the MBE.

Another type of jurisdiction that can be authorized to a court is personal jurisdiction. However, before a court can exercise its personal jurisdiction over a defendant, it must first prove that it has had minimum contacts or connections with the defendant, such as the defendant residing, incorporating, or conducting business in the jurisdiction where the court is located. In addition, the plaintiff must serve the defendant according to the state law, in the state where the court sits, or the defendant resides, and the defendant must voluntarily appear. While personal jurisdiction can be waived or transferred, subject-matter jurisdiction cannot.

Much like jurisdiction, the process of giving notice or "serving papers" to the defendant is also steeped in nuance. Be careful, especially when the forum for the lawsuit is a state court, as they all have their own specific guidelines regarding how to serve. Suppose the defendant is an individual being sued in federal court. In that case, the serving entity can be any nonparty 18 years of age or older following the SAID method: State law method, Agent, Individual, or Dwelling.

Law applied by federal courts

When a case is to be decided in federal court, you must determine which laws should be applied: federal common law or state law. You can expect about 2–3 questions on this. You'll remember that if a federal court is sitting in diversity, it must apply the substantive law of the state it sits in, including that state's conflict of rules law. It must subscribe to federal common law for any procedural laws. The tricky part is figuring out whether the issue at hand requires substantive or procedural law, which is not always cut and dried. The key to solving these issues is by correctly classifying them as substantive or procedural. When in doubt, refer to the Erie Doctrine, which we describe later in detail (See section: How to Study for Civil Procedure on the MBE and MEE).

Pretrial Procedures

After jurisdiction and choice of law are established, a complaint is filed in the appropriate court, and the defendant is served, it's time to proceed to the next step: pretrial procedures, including preliminary injunctions, pleadings, joinders, discovery, and pretrial hearings and conferences. You can expect about 5–6 questions based on these topics; typically, they will be heavy on timing, so it's a good idea to create a timeline to remember the deadlines for each step.

There are also many terms to remember when it comes to joinders or adding claims or parties. For instance, claims can be added to a case through counterclaims or cross-claims, and parties can join a case through permissive joinder (class action), impleader, intervention, or interpleader.

Generally, the goal of the court (and everyone involved in a lawsuit) is to avoid a costly trial. As a result, during the pretrial stage, both sides will plead their positions and layout and exchange evidence and disclosures to resolve as many issues as possible before trial, perhaps even settling the suit(s) altogether. Thus, if the court finds no dispute over the facts, then the court may be able to adjudicate without trial.

Motions

Next, motions make up about 20% of questions on the MBE or 5–6 questions, so it's essential to know how and when to file them. Like pleadings, they come with many deadlines, so it's a good idea to make timelines for them. Motions are formal, written requests for the court to make a legal ruling during three stages of litigation: pretrial, during trial, and post-trial.

Common pretrial motions include a motion to dismiss in which there is no legal basis for the suit and a motion for summary judgment in which the court makes a ruling based solely on the law instead of going to trial. Remember that for a challenge based on a lack of personal jurisdiction, insufficient service of process, or improper venue, the defendant must make the motion right away (after the first responsive pleading).

During the trial, the primary motion is a judgment as a matter of law (JMOL) which requests that the judge rule instead of the jury based on insufficient evidence. Finally, post-trial motions can be made to fix any errors during the trial, or to throw out the court's decision based on a lack of subject matter jurisdiction. These may include motions for relief from judgment and a new trial.

Jury trials

Next, you can expect 2–3 questions related to demanding a jury trial and the selection, composition, and instructions for a jury. According to the Seventh Amendment of the Constitution, a party has the right to a trial by jury where the amount in dispute exceeds $20. Therefore, if a party wants a trial by jury, they have the right to serve the other parties a written demand for one no later than 14 days after the last pleading, giving the other parties ample time to adjust their strategy and prepare for it.

During jury selection, the judge and attorneys reserve the right to question potential jurors to ensure their impartiality. Furthermore, they can eliminate or strike any juror related to or interested in a case and strike up to 3 jurors for any reason other than race or gender. Finally, any party must object to the jury instructions immediately upon hearing them given by the judge.

Verdicts and judgments

You will find 2–3 questions based on what happens after the verdict or judgment. Some common topics include default judgments, jury verdicts and challenges, judicial findings and conclusions, and preclusions. One of the most common mistakes test-takers make is confusing the terms default versus default judgment. Note that a default merely means that the defendant failed to answer (in a timely manner), but it does not mean that the plaintiff automatically wins the lawsuit. They still need to file a motion for a default judgment.

Once the final judgment is made, two doctrines prevent a party from raising a new claim or issue that was already decided. These two doctrines, known by their fancy names res judicata and collateral estoppel, can be hard to keep straight. Remember this: res judicata deals with claims preclusion, preventing identical parties from filing identical claims after the final judgment. This means that parties or their privies cannot file a new claim whereby they are in the same role or based on the same transaction. On the other hand, collateral estoppel pertains to issue preclusion, which prohibits the relitigation of an issue that was already an essential part of the decision in a previous suit.

Appealability and review

Finally, you can expect 2–3 questions on appealability and review. Typically, these questions will ask whether an order or decision is appealable. While, in general, only final judgments are appealable, the NCBE loves to test the exceptions, and there are quite a few of them! Some of the exceptions available in certain jurisdictions include the ability to appeal temporary orders, judgments on collateral matters or ones having multiple claims or parties still pending, or orders granting or denying a JNOV, directed verdict, or denial of a new trial.

It's also possible that you will be asked about an appellate court's scope and standards of review based on the law, the facts, or abuse of discretion.

How to study for Civil Procedure on the MBE and MEE

Studying for the Civil Procedure on the MBE and MEE can be intimidating, but we are here to help! Below are some tried and true strategies you can use to break down some common MBE and MEE Civil Procedure exam questions.

Identify the Call of the Question

Like with all test questions on the MBE exam, it's always important to first determine what the question is actually asking. While this may seem obvious, those mischievous test-makers like to hide the true purpose, or the call of the question, somewhere within the scenario, such as a few sentences after the original question stem. Not only that, it makes sense that civil procedure issues can exist while practicing any area of law—so always be on the lookout! So, while it may seem like a question pertains to a tort issue at first, you may be dealing with an improper venue issue.

Use the ‘Chunking’ Method

What makes the subject of Civil Procedure unique is that it comes with so many deadlines to memorize, but here is our best-kept secret: there are only six essential deadlines that you need to remember, and you can do that with a method called 'chunking.' This means grouping chunks of like information in a meaningful way, freeing up some valuable space in your brain! Fortunately, we have already organized these chunks in the table below for your convenience.

You can use the same chunking method to organize other groups of similar information into more manageable, bite-size pieces, such as grouping motions into Pretrial Motions, During Trial Motions, and After Trial Motions, which we’ve already done for you here!

While there are many pre-made resources and charts available online already (such as the great ones we provide), the best way to remember all of the deadlines and rules of Civil Procedure is to create your own charts.

When to Apply the Erie Doctrine

When you hear horror stories in law school, they sometimes deal with the Erie Doctrine. Yet, this harmless doctrine does not have to be so eerie. While the bad news is that the MBE loves to test your knowledge of it, the good news is that you only have to face it in one specific scenario: when a federal court is 1) sitting in diversity and 2) has to determine whether state or federal law applies.

Usually, which type of law to apply is clear: federal law applies to procedural issues, such as deadlines and processes, and state law applies to substantive issues or those that affect an individual's rights and responsibilities. (See a chart with examples here).

But what do you do when the federal and state laws conflict, or it isn't entirely clear whether you're dealing with a procedural or substantive issue? First, use the federal-rule analysis to determine if a federal law directly applies to the issue. To do this, ask yourself if the situation deals with "housekeeping" issues related to how to initiate a lawsuit instead of dealing with legal rights, such as remedies or defenses. If not, use the Eerie Analysis, which says that state law prevails in cases where plaintiffs could sue in federal court to take advantage of a rule or the outcome would be unfairly in favor of the plaintiff.

When to Apply Supplemental Jurisdiction

As we mentioned previously in the section on jurisdiction and venue, a federal court may claim supplemental jurisdiction over an additional claim if it stems from the same situation or transaction where it has original jurisdiction, which can be established through federal-question or diversity jurisdiction. If the original jurisdiction is based on federal-question jurisdiction, the court may choose either to exercise or decline its right over the new claim. On the flip side, if the original jurisdiction is based on diversity, it is prohibited from exercising supplemental jurisdiction if the new claim meets diversity requirements or seeks less than $75,000.

How to Earn Maximum Points on the MEE

So, what do MEE graders most like to see when structuring your responses? Generally, they want it when you state the broad rule or basic principle before getting to the specific rule or the exception. This can be done by using the IRAC format:

Issue: Identify the issue at hand

Rule: Explain the rules (general to specific)

Analysis: Apply the specific rules to solve the issue

Conclusion: Explain why the rule was chosen

Finally, don't let yourself get burned out. While it's imperative to study enough, it's just as important to give your brain a rest!

Learn and memorize the Federal Rules of Civil Procedure

In addition to the dense content, you must digest it for Civil Procedure. It's also essential to have an excellent working memory of the 11 primary Federal Rules of Civil Procedure as amended on December 1, 2020. These rules are as follows:

Scope and Purpose
One Form of Action
Commencing an Action
Summons
Serving and Filing Pleadings and Other Papers
Computing and Extending Time; Time for Motion Papers
Pleadings Allowed; Form of Motions and Other Papers
General Rules of Pleading
Pleading Special Matters
Form of Pleadings
Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Know about highly tested issues on the MEE

As we previously stated, Civil Procedure continues to be the most highly tested topic on the MEE, so it’s absolutely vital that you are both aware and prepared to tackle some of the more commonly tested topics, which tend to be those that are also highly tested on the MBE.

You can probably guess one of the NCBE's favorite topics based on its prominence on the MBE: jurisdiction and venue. More specifically, the examiners love to test when to apply diversity and supplemental jurisdiction, with federal-question and personal jurisdiction (often tested together) not far behind. One tip for earning maximum points on a personal jurisdiction question is to connect it to the Fourteenth Amendment Due Process Clause and explain and compare the two types: general versus specific.

Two more topics that are often tested together are proper venue and the law of the transferor of forum. In these cases, it's important to remember when a federal court has the authority to transfer a case to another forum with subject-matter jurisdiction, such as when it is more convenient for the parties/witnesses or in the interest of justice.

Other issues that are commonly tested on the MEE include the conditions under which a defendant can be appropriately served (SAID method), when preliminary injunctions, especially temporary restraining orders, can be granted to preserve the status quo (HELP factors), and how to add a plaintiff to a claim under the permissive joinder rule (the claim must come from the same transaction and stem from the same law).

Practice (Makes Perfect)

So, you think you already have what it takes to answer the Civil Procedure questions on the MBE correctly? Remember, it's not enough to select the correct answer from a list of choices, but you should be ready and able to explain your reasoning or justification for your answers. Why? So that you are prepared for any curve balls thrown your way by the test-makers who LOVE to test the exceptions. The best way to do that is by working through some practice problems, especially those released by the NCBE. Also, don't forget to practice writing thorough MEE responses using the preferred IRAC format. Not only will this help you earn maximum points on the MEE, but it will also help solidify your overall knowledge of Civil Procedure, which may improve your score on the MBE.

Civil Procedure Sample Questions and Answers

Think you’re ready to put your knowledge of Civil Procedure to the test? Here is one of our UWorld Civ Pro sample questions, which we’ve modeled after NCBE Civ Pro questions:

Question 1
Question 2
Question 3

A husband and wife were married in State A and lived there for 10 years before separating. One month later, the wife permanently moved to State B and immediately filed for divorce in a federal court in State B. The wife claims that she is entitled to $300,000 in alimony. The husband appeared in the action and has filed a motion to dismiss for lack of subject-matter jurisdiction.

Should the court grant the motion?

No, because the court has diversity jurisdiction over the case
No, because the husband waived a subject-matter jurisdiction challenge by appearing in the case
Yes, because state courts have exclusive jurisdiction over this type of action
Yes, because the wife did not establish a domicile in State B

Submit

Explanation

Federal diversity jurisdiction exceptions
Federal courts cannot exercise diversity jurisdiction over cases involving: probate matters (eg, authenticating wills, administering estates) or domestic relations (eg, issuing divorce, alimony, or child-custody decrees)

Federal diversity jurisdiction exceptions

Federal courts cannot exercise diversity jurisdiction over cases involving:

probate matters (eg, authenticating wills, administering estates) or
domestic relations (eg, issuing divorce, alimony, or child-custody decrees)

A federal court must possess subject-matter jurisdiction to hear the merits of a case before it.

Subject-matter jurisdiction can be established through either:

federal-question jurisdiction – when a claim arises under the U.S. Constitution, a treaty, or federal law (not seen here) or
diversity jurisdiction – when the amount in controversy exceeds $75,000 and the opposing parties are citizens of different states.

Here, diversity jurisdiction is established since the wife claims that she is entitled to $300,000 and the parties are citizens of different states (States A and B). However, federal courts cannot exercise diversity jurisdiction over cases involving probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of actions (Choice A).*Therefore, the husband's motion to dismiss should be granted.

*The probate and domestic-relations exceptions exist because states have a strong interest in these substantive areas and are more qualified to deal with the constant judicial involvement these types of cases require.

(Choice B) A challenge to subject-matter jurisdiction is never waived. However, a challenge to personal jurisdiction is waived if the defendant has voluntarily appeared in the case, unless it was a special appearance for the express purpose of objecting to personal jurisdiction.

(Choice D) An individual is a citizen of the state where he/she is domiciled—ie, physically present with the intent to remain indefinitely. Since the wife permanently moved to State B, she has established her domicile there.

Educational objective:
Federal courts cannot exercise diversity jurisdiction over cases involving probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of cases.

References:

Ankenbrandt v. Richards, 504 U.S. 689, 703–04 (1992) (explaining the domestic-relations exception to diversity jurisdiction).

A pharmaceutical company sued its competitor for patent infringement in federal court. The competitor's attorney hired a pharmacist to examine the case and testify as an expert at trial. The pharmacist studied the case and submitted an initial draft of her report to the attorney. After reading the draft report, the attorney noticed that certain facts and data were missing. To correct this issue, the attorney emailed the pharmacist and provided additional facts and data to include in the report. The pharmacist then revised her report based on this additional information.

After receiving this revised report from the competitor's attorney, the pharmaceutical company served a request for production on the attorney to produce the email exchanged with the pharmacist.

Must the attorney produce the email?

No, because attorney communications with expert witnesses are privileged.
No, because the contents of the email are discoverable through interrogatories served on the pharmacist.
Yes, because a draft of an expert report is discoverable.
Yes, because the email contained facts and data that the pharmacist relied on to revise her report.

Submit

Explanation

Discovery of expert materials (FRCP 26(b)(4))
Non Testifying expert	Facts known or opinions held by expert not discoverable unless: relate to court-ordered physical/mental examination or exceptional circumstances make it impracticable to obtain information by other means
Testifying expert	Facts known & opinions held by expert discoverable through deposition Drafts of expert reports & disclosures not discoverable Communications between attorney & expert not discoverable unless: relate to expert's compensation or identify facts, data, or assumptions provided by attorney that expert considered in forming opinions

FRCP = Federal Rule of Civil Procedure.

Parties can use various discovery methods, including requests for production, to obtain nonprivileged information that is relevant to any claim or defense and proportional to the needs of the case. Materials held by an expert witness expected to testify at trial are discoverable with two exceptions:

Drafts of expert reports or disclosures
Privileged attorney-expert communications

All attorney-expert communications are privileged unless they (1) relate to the expert's compensation or (2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.

Here, the competitor's attorney hired the pharmacist to examine the case and testify as an expert at trial. After reading the pharmacist's draft report, the attorney emailed the pharmacist and provided her with additional facts and data that were missing in the draft. The pharmacist then relied on those facts and data to revise her report, so the email is not a privileged communication (Choice A). Therefore, the attorney must produce the email.

(Choice B) Interrogatories are a discovery request in which a party serves written questions on another party that inquire about any matter within the scope of discovery. However, interrogatories may not be served on a nonparty such as an expert expected to testify at trial. Therefore, the contents of the email are not discoverable through interrogatories served on the nonparty pharmacist.

(Choice C) Drafts of expert reports are not discoverable. Therefore, the attorney would not be required to produce the email on this basis.

Educational objective:
All attorney-expert communications are privileged unless they (1) relate to the expert's compensation or (2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.

References:

Fed. R. Civ. P. 26(b)(4) (discovery of expert materials).

A corporation has been the subject of several news reports charging that the pollution emitted by its factory endangers the health of hundreds of residents in a subdivision. The corporation filed an action in federal court against the residents to obtain a declaratory judgment that it complied with environmental regulations and is not responsible for any subsequent harm. A federal statute authorizes this suit.

The state in which the federal court is located permits service of process by mail or by publishing notice of the suit in a newspaper. The corporation obtained the name and address of each resident in the subdivision from the county tax assessor. To avoid the expense of mailing service to each resident individually, the corporation published notice of the suit in the subdivision's community newspaper pursuant to the state's procedural rules.

Did the corporation properly serve the residents with process?

No, because service by publication was unreasonable since the corporation knew the name and address of each resident.
No, because the residents were not personally served with process.
Yes, because service by publication was reasonable due to the expense associated with mailing service to each resident.
Yes, because the newspaper publication provided the residents with reasonable notice of the action.

Submit

Explanation

Service of Process under state procedural rule illustration

A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process, which must comply with both procedural rules and due process. In a federal court action, Federal Rule of Civil Procedure 4 permits service of process on a defendant-individual located in the U.S. by any of the following methods:

Personal service – when process is delivered in person to the defendant
Substituted service – when process is delivered to the defendant's agent or left at the defendant's dwelling with a resident of suitable age and discretion
State procedural rules – when process is served pursuant to the rules of the state where the court sits or service is attempted (as seen with the newspaper publication here) (Choice B)

However, attempted service must also satisfy due process. Under this constitutional requirement, service must reasonably apprise the defendant of the pending suit so that the defendant may appear and present objections. This means that the plaintiff must notify the defendant of the lawsuit by the most reasonable means under the circumstances.

Service by publication is the most reasonable means in the rare instance when the defendant's identity or address is unknown and unobtainable. But if the plaintiff knows or can reasonably obtain this information, a more reasonable means of service must be used (eg, service by mail). Here, the corporation had obtained the residents' names and addresses from the county tax assessor, so service by publication was unreasonable. Therefore, the residents were not properly served with process (Choices C & D).

Educational objective:
A plaintiff must provide the defendant with adequate notice of a lawsuit that reasonably apprises the defendant of the suit so that the defendant may appear and present objections. Service by publication is permitted only when the defendant's identity or address is unknown and unobtainable.

References:

Fed. R. Civ. P. 4(e) (service of process on individual in the United States).
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 319 (1950) (holding that a plaintiff cannot provide notice by publication when the identities and addresses of the defendants are known or easily ascertainable).
62B Am. Jur. 2d Process § 206 (2020) (explaining service by publication).

Did you arrive at the correct answers? While that is important, it’s just as important to be able to explain your reasoning. That’s why here at UWorld Legal, we always include in-depth explanations for both the right and wrong choices.

Ready to try some additional sample Civ Pro questions released by the NCBE? Here you go!

Frequently Asked Questions

What are the 7 Civil Procedure Topics Covered on the MBE?

The 7 civil procedure topics covered on the MBE are as follows:

What is the Difference Between Specific and General Jurisdiction?

Before a court has the power to make any legal decision regarding an individual defendant or party, it must be proved that it has minimum contacts or connections with said defendant. This can be proven through general jurisdiction in which the case is not already vested in another court or specific jurisdiction in which a court has personal jurisdiction over a defendant based on where they reside or conducted the actions in dispute.

What are the Two Types of Jurisdiction in Federal Courts?

Federal courts are limited to 2 types of subject-matter jurisdiction: 1) diversity jurisdiction or 2) federal-question jurisdiction in which the dispute pertains to a treaty or falls under the U.S. Constitution, federal law, or statute.

What are the Basic Requirements of Diversity Jurisdiction?

The basic requirements of diversity jurisdiction include:

The amount in dispute exceeds $75,000, and
not one plaintiff is a resident of the same state as any defendant

What is the Complete Diversity Rule?

The complete diversity rule requires that not one plaintiff is a resident of the same state as any defendant for the case to be heard in federal court.

What is Supplemental Jurisdiction?

Supplemental jurisdiction is the authority to preside over a claim that falls outside of its original jurisdiction as long as it arises from the same incident as those claims that fall within it.

What is the Two-Step Analysis to Determine If Supplemental Jurisdiction Applies?

The two requirements for supplemental jurisdiction to apply to a federal court are:

There is more than one claim stemming from the same situation.
Federal court has valid jurisdiction over at least one of those claims.

What Are the Most Tested Topics in Mbe Civil Procedure?

The most tested topics in MBE Civil Procedure are as follows: 1) jurisdiction and venue, 2) pretrial procedures, and 3) motions, which make up 66.6% of the MBE civil procedure questions, with 5–6 questions pertaining to each topic; and 4) Law applied by federal courts, 5) Jury trials, 6) Verdicts and judgments, 7) Appealability and review, which make up 33.3 % of the MBE civil procedure questions, each of the four topics having 2–3 questions.