KAPLAN BAR PERFORMANCE TEST WORKSHOP

LEARNING OBJECTIVES

● During the course of completing this workshop, you will:

○ Become familiar with the Multistate Performance Test (MPT®) components

○ Gain confidence that you have the tools you need to succeed on the MPT®

○ Establish an MPT® approach that you can apply consistently to all MPT® practice
tests and the bar exam

○ Begin to write your first MPT®!

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 INTRODUCTION TO THE MULTISTATE PERFORMANCE TEST (MPT®)

● MPT® Background
○ Developed by the National Conference of Bar Examiners (NCBE®)
○ The NCBE® offers two different 90-minute test items per administration;
jurisdictions can administer one or both.
○ Contact your jurisdiction’s Board of Bar Examiners for additional info on how it
administers the MPT®

● MPT® Components
○ The MPT® materials consist of three main parts:
■ A Task Memorandum from the supervising attorney that specifies what
the assignment entails;
■ A File that contains various source documents detailing the facts of the
case; and
■ A Library that contains various sources of law relevant to the
assignment.
○ No outside knowledge of the law is needed to complete the assignment.
○ Real-world cases and statutes are sometimes used, but may also be modified
from the original, requiring a close reading without making assumptions.
○ Standard instructions are included with each MPT®.

● Competencies Tested on the MPT®

○ The MPT® is designed to test an applicant’s ability to perform the basic
lawyering skills needed to complete common lawyering tasks, including but not
limited to internal law firm memos, client letters, demand letters, and briefs.
○ Six basic lawyering skills are assessed on the MPT®

■ Legal Analysis -- The applicant must demonstrate the ability to identify

legal issues in the case and apply the legal resources provided to the
given assignment, including:
● Identifying legal issues raised in the File and Library;
● Reading and analyzing the law contained in the source materials
provided in the Library;
● Formulating and/or evaluating legal theories; and
● Developing and/or criticizing legal arguments.
● Show that you can think like a lawyer!

■ Fact Analysis/“Issue Spotting” -- While the issues raised in the File will
typically be less complex than law school “issue-spotter” type exams, the
applicant must demonstrate the ability to identify and analyze facts
relevant to the given assignment, including:
● Identifying and evaluating relevant facts among the various source
documents contained in the File;

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 ● Comparing and distinguishing facts in the File from those
contained in the legal sources in the Library;
● Determining the need for further fact development and/or planning
such fact development; and
● Organizing and presenting facts in concise written form.
● Make it easy for the evaluator to follow your approach!

■ Problem Solving -- The applicant must demonstrate the ability to solve

problems raised in the assignment, including:
● Identifying key issues requiring resolution;
○ Think outside the box, but not TOO far outside the box
● Formulating and evaluating creative solutions to key issues; and
● Implementing solutions to key issues through application of
relevant facts and law and/or development of a plan of action.

■ Ethical Awareness -- The applicant must demonstrate the ability to

identify and address ethical issues raised in the case, including:
● Understanding ethical standards;
● Recognizing ethical issues raised in the case; and
● Addressing ethical issues appropriately.

■ Written Communication -- The applicant must demonstrate the ability to

write effectively, including:
● Writing the assignment in a clear, concise fashion; and
● Writing with the appropriate audience in mind.
● Show that you can produce lawyer-like work products (given the
time constraints).

■ Time Management -- The applicant must demonstrate the ability to

perform a written legal task under time constraints.
● Complete the assignment in the time allotted.
● Applicants must complete a written assignment under timed
conditions using materials provided with the test.
● Applicants have 90 minutes to read the materials provided and
draft the assignment.

● How is the MPT® Scored?

○ Instructions provided with the MPT® state that the test is scored based on an
applicant’s responsiveness to the instructions regarding the assigned task, and
on the content, thoroughness, and organization of an applicant’s response.
○ The NCBE® provides jurisdictions with a scoring document outlining the points it
intended to raise in each test item.
■ NCBE® publishes model these “point sheets” and copies of previous
administrations of the MPT® at ncbex.org

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 ○ Check with your jurisdiction’s Board of Bar Examiners for further information.
○ Use the Writing Center on your online syllabus!

● Introduction Takeaways
○ Three Components to the Exam Packet
■ Task Memo
■ File
■ Library

○ Multiple Competencies Tested

■ Legal Analysis
■ Fact Analysis/“Issue Spotting”
■ Problem Solving
■ Ethical Awareness
■ Written Communication
■ Time Management

○ You have 90 minutes to complete each PT task

○ It is a closed-universe test– you do not need study rules for this section of
the bar exam!

THE KAPLAN METHOD IS DESIGNED TO HELP YOU MANAGE ALL OF THESE SKILLS IN
ORDER TO MAXIMIZE YOUR SCORE

● Kaplan Bar Review MPT® Method will help you to:

○ Create a quality piece of written work in the limited amount of time the MPT ®
allows.
○ Master a simple approach “template” which, through practice, will ensure that you
do not waste any time on Test Day debating what to do next as you draft your
response.
○ Approach the Performance Test with confidence.

● Kaplan Bar Review Performance Test Method will help you to AVOID:
○ Missing key pieces of information in the File or Library.
○ Re-reading the File and the Library documents unnecessarily.
■ Re-reading needs to happen in some cases; however, you should be re-
reading “with purpose”
○ “Re-inventing the wheel” every time you encounter a new MPT® problem.
○ Having your writing suffer from test-day nerves.
○ Turning in an incomplete answer.

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● Overview of the Kaplan Bar Review 5-Step Method

○ Step 1. Review the Supervising Attorney’s Task Memo to determine the task and
the tone, and to anticipate what information you will encounter in the File and
Library

○ Step 2. Read the File Documents

■ Step 2a. Read the Format document (if applicable) and use it to build
your outline.
■ Step 2b. Read the other File documents, adjusting your outline as
necessary, and “issue spotting” for the task.

○ Step 3. Read the Library documents, adjusting your outline as necessary, and
incorporating relevant portions into the IRAC section of your outline.
■ Library contains the applicable cases, statutes, and other law.

○ Step 4. Finalize the outline; reorganize if necessary

○ Step 5. Fill out the outline -- write the requested assignment

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 Kaplan Method Step 1

● Review the Supervising Attorney’s Task Memo

○ Background Information on the Task Memorandum
■ The Task Memorandum is always the first document in the File.
■ Your task is always going to be acting as an associate attorney
responding to a “Task Memo” from a managing attorney.
■ Read this document closely, as your score depends on your ability to
complete precisely the assignment set out in this Task Memo.
● Take your time with this document!

○ Determining the “Task” -- Starting to Build Your Outline

■ The Task Memo will have the information that will help you formulate the
basics of your outline.
■ Take notes on the specific requirements of the assignment.
■ If you’re taking the test remotely, you will be given “virtual” scrap paper to
use for notes and outlining; if you’re in person, you’ll likely have regular
scratch paper.
■ When practicing your MPT®s, practice using virtual scrap paper (for
example, another open Word document) to take your notes.
■ Draft a preliminary outline of the assignment within your primary
document from any information that you glean from the Task Memo.
■ Leave plenty of space to flesh out your outline as you read the remainder
of the File.

○ Determining the “Tone” -- Objective or Persuasive

■ Determining the “tone” of the assignment is key -- the assignment will be
either an “Objective” or “Persuasive” writing task.
● Focus on the audience for your task.
■ Objective documents will generally be “internal” or directed to someone
on “your” side of the matter (a memo to the partner at your firm; a letter to
your client; a fact investigation plan).
■ Persuasive documents will generally be “external” or directed to a court
or opposing counsel (brief, complaint, jury instructions, memo in support
of a motion to dismiss).

○ Determining the “Tone” -- Persuasive

■ Persuasive documents will generally be “external” or directed to a court
or opposing counsel (brief, complaint, jury instructions, memo in support
of a motion to dismiss.
■ Examples of Persuasive assignments:
● A persuasive brief or memorandum
● A proposal for settlement or agreement
● A closing argument
■ An example of a Persuasive “ask”:

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 ■ Notice the guidance we receive from the language of the ask:
● “legal argument” → persuasive
● “portion of our brief” → the specific task
● “following the attached guidelines” → how to complete the task (the
“format document”)
● “You should argue” → specific information on what to argue / what to
include

○ Determining the “Tone” -- Objective

■ Examples of Objective assignments:
● A memorandum to a supervising attorney (most common)
● A statement of facts
● A contract provision or analysis of a contract provision
● A discovery plan
● A letter to a client
● A witness examination plan

■ An example of an Objective “ask”:

● Notice the guidance that we receive from the language of the ask:
○ “Advise” → objective
○ “Memorandum” → specific task

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 Kaplan Method Step 2

● Read the File Documents

● Step 2a. Read the Format document (if applicable) and use it to build your outline.
○ Background Information on the Format document
■ Typically, there is a second document in the File (called the “Format”
document) that shows you how to structure or format the document you
are drafting.
■ It may be a court rule or statute that lays out the requirements of a
persuasive document, like a complaint or motion.
■ It may be a law firm memo outlining how the firm wants memos, letters,
fact investigation plans, etc. written.

○ See next page for an example of a Format document.

○ ***Fill out the blanks on the following page, focusing on asking yourself what
specific information does the Format document give us?***

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■ ***What guidance did we receive?***
● What to include and what not to include
____________________________________________________
____________________________________________________
____________________________________________________

● Specific guidelines about how to set up our headings

____________________________________________________
____________________________________________________
____________________________________________________

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 ■ ***What guidance did we receive?***
● What to include and what not to include
○ Analyze legal authority
○ Emphasize supporting authority
○ Address contrary authority
● Specific guidelines about how to set up our headings
○ Break argument into major components
○ Multiple headings
○ Complete sentences; specific application of rule to facts
○ Not conclusory

● Step 2b -- Read the rest of the File documents, adjust the outline if necessary, and
“issue spot” for the task.

○ Table of Contents
■ The ToC can tell you what kind of materials are going to be included in
your File and Library
■ The ToC can also tell you where you will need to focus your reading time
and energy
● If File > Library → indicates more fact intensive;
● If Library > File → more legally complex

○ See example of a ToC document.

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○ ***Questions to ask yourself at this point***
■ What kind of materials will we be using?
● ____________________________________________________
____________________________________________________
____________________________________________________

■ Will it be a fact-heavy or legal analysis-heavy assignment?

● ____________________________________________________
____________________________________________________
____________________________________________________

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 ■ What kind of materials will we be using?
● File: Format document; Notice of Decision; Testimony transcript
● Library: IRS Code; CFR; Tax Court decisions
■ Will it be a fact-heavy or legal analysis-heavy assignment?
● Library > File → more legal analysis

○ Other File Documents

■ The “File” consists of documents that will provide you with instructions for
the task at hand, and other documents that provide the facts you need to
know to complete that task.
■ Use the guidelines from the Task Memo and the Format document to help
you focus on the key facts
■ As you review the File documents, take notes that you can put directly
into the analysis section of your outline
■ If necessary, make note of page numbers in the File in order to make it
easy to refer to as you go
■ Be an active reader!

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 Kaplan Method Step 3

● Read the Library documents and incorporate into the IRAC portion of your outline,
noting any ethical issues along the way.

○ The “Library” consists of legal authorities (statutes, cases, regulations, etc.) that
provide the legal rules necessary for completion of the assignment from the Task
memorandum

○ Consult the ToC

■ The ToC will tell you what type of legal authorities you’re being provided
■ Not every piece of information in the Library will necessarily be relevant to
your assignment.

○ One of the biggest shortcoming applicants have on the MPT is not discussing
how the legal rules relate to the facts in the problem.
■ Do not just recite the holdings of the cases! Take those holdings and tell
the reader how those holdings would apply to the facts of the problem

○ Questions to ask yourself as you’re reading the Library:

■ Look at the jurisdiction of the cases in the Library—are they from
Franklin/Columbia (mandatory) or another state (persuasive)?
■ Are cases from the state Supreme Court or from an Appellate Court?
■ Is one case later in time from the same court?
■ Footnotes often contain key information as well.
■ Embedded authorities—e.g., an Appellate Court case that cites a
Supreme Court case for a proposition of law.
■ Remember that not all of the authorities may be relevant.

○ Always remain ethical

■ Never ignore a professional responsibility rule in the library.
■ Ethics questions are most often a sub-part of the larger issue(s)
■ Use the term “Ethical” to make it clear that you are addressing an ethical
issue.
■ Conflicts are the main ethical issues that arise
● withdraw/disclose/get advice from another attorney

○ Formatting your outline once you’ve read the Library:

■ Clearly set out the rules from the statutes or cases
■ Read actively by summarizing the cases into parentheticals
● Pull the key facts and holdings of each case
● Summarize the facts in a way that’s helpful to explain why it does
or doesn’t apply in this case
● Focus only on outcome-determinative facts/legally significant facts
● Pay attention to your client’s needs (remember the Task Memo)
■ Remember to use IRAC (Issue, Rule, Analysis, Conclusion) format!
● Incorporate those parentheticals directly into the Rule/Analysis
portions of your outline.
● Clearly set out the rules from the statutes or cases
● Use headings that are precise

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 Kaplan Method Step 4

● Finalize the Outline; reorganize if necessary

○ Review Task Memo and Format document
○ Draft clear precise headings in accordance with any guidance from the Task
○ Memo or Format document
■ Mimic form and mimic the ask
○ Focus on your client’s goals -- don’t go off on tangents
○ Note both legal and nonlegal options

Kaplan Method Step 5

● Fill out the outline; write the requested assignment!

○ DO
■ Make points briefly -- you don’t have a lot of time!
■ Remember that most rules of law are made up of “elements” or
“components” and your job is to apply each of those elements to the facts
in your File.
■ Be prepared to deal with an unknown set of facts and an unknown area of
the law.
■ Note facts that are unreliable (e.g., witness statements).
■ Rely on the legal rules in the Library.
○ DON’T
■ Worry about eloquence -- this needs to look professional, not like a work
of art.
■ Avoid bad facts.
■ Base your writing on preconceived ideas.
■ Invent issues that aren’t in the problem.
■ Assume that every part of every authority in the Library is relevant to your
issue.

○ Remember
■ The MPT® does NOT test your ability to remember legal rules.
■ All the legal rules you need to know are contained in the Library.
■ The MPT® tests your SKILLS, particularly your ability to synthesize legal
rules and apply them to the facts.

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● Overview of the Kaplan Bar Review 5-Step Method

○ Step 1 Review the Supervising Attorney’s Task Memo

○ Step 2 Read the File Documents

■ Step 2a. Read the Format Document (if applicable)

■ Step 2b. Read the Other File Documents

○ Step 3 Read the Library Documents

○ Step 4 Finalize the Outline; reorganize if necessary

○ Step 5 Fill Out the Outline -- write the requested assignment!

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 APPLYING THE KAPLAN METHOD TO AN MPT®:
Miller v. Trapp

● Instructions
○ (see page 2 of your Miller v. Trapp packet)
○ Here’s what you’ll see on test day (and at the beginning of every practice MPT®
that you encounter.

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17
● Overview of the Kaplan Bar Review 5-Step Method

○ Step 1 Review the Supervising Attorney’s Task Memo

○ Step 2 Read the File Documents

■ Step 2a. Read the Format Document (if applicable)

■ Step 2b. Read the Other File Documents

○ Step 3 Read the Library Documents

○ Step 4 Finalize the Outline; reorganize if necessary

○ Step 5 Fill Out the Outline -- write the requested assignment!

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 Applying Kaplan Method Step 1 to Miller v. Trapp

● Review the Supervising Attorney’s Task Memo

○ Determine the tone of the assignment
○ Determine the number/type of headings from your assignment/Task Memo
○ Anticipate what documents you will encounter in the File and Library
○ Take 5 minutes and apply Step 1 of the Kaplan Method to the Task Memo
for Miller v. Trapp
■ (see page 5 of your Miller v. Trapp packet)

○ ***Questions to ask yourself at this point: ***

■ What is the task being assigned to you?
● ____________________________________________________
____________________________________________________

■ What is the “tone” (objective or persuasive) of that task?

● ____________________________________________________

● Who is the audience?

○ _______________________________________________

● Who is the client?

○ _______________________________________________

■ Are there any specific INSTRUCTIONS about how to complete the task?
Does the memo contain any hints? Will you have a Format Document?
● ____________________________________________________
____________________________________________________

■ Are there directions or indications of the supervising attorney’s thoughts

or conclusions?
● ____________________________________________________
____________________________________________________

■ Which MATERIALS does the Task Memo suggest are being provided to
you in the FILE/LIBRARY?
● ____________________________________________________
____________________________________________________

■ Are there any potential ethical issues suggested?

● ____________________________________________________
____________________________________________________

■ Anything additional to consider at this point?

● ____________________________________________________
____________________________________________________

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20
 ○ What is the task being assigned to you?
■ Writing a Demand letter to opposing counsel for our client, Katie Miller, in
her potential action for assault/battery against Steve Trapp
■ Writing an internal memorandum re: damages recommendations
○ What is the “tone” (objective or persuasive) of that task?
■ Demand letter = persuasive
■ Damages memo = objective
○ Who is the audience?
■ Counsel for Steve Trapp for demand letter
■ Supervising attorney for damages memo
○ Are there any INSTRUCTIONS about how to complete the task? Are there
directions or indications of the supervising attorney’s thoughts or conclusions?
■ Demand letter
● “Demand letter...written for my signature” → these details matter!
● State basis for both assault and battery claims
● Argue that Miller should get compensatory and punitive damages
● Follow firm guidelines (FORMAT DOCUMENT)
● Leave both categories of damages blank
● Do NOT cite jury verdicts
■ Damages Memo
● Recommendation for specific amounts for both categories of
damages
● Rationale for those amounts for both categories
● Use Library documents as guidance
● Refer to jury verdicts
○ Which MATERIALS are being provided to you in the FILE and LIBRARY?
■ File
● Memo from conversation with Trapp’s attorney
● Format document for demand letters
■ Library
● Attached cases
● Recent Franklin civil jury verdicts
○ Are there any potential ethical issues suggested?
■ Not evident thus far
○ Additional thoughts/notes thus far
■ We’ll need two areas for note-taking/outlining
● One for the demand letter
○ There’s a format document in the file about how to do
demand letters which will likely give me help in setting up
the outline
● One for the damages memo
○ No format document so you will have to look out for
guidance on your firm’s internal memo format
● Carefully following the Task Memo is key to your success on the MPT ®!

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 Applying Kaplan Method Step 2a to Miller v. Trapp

● Read the Format document (if applicable) and use it to build your outline.

○ Take 5 minutes and apply Step 2a of the Kaplan Method to the Format
document for Miller v. Trapp
■ (see page 6 of your Miller v. Trapp packet)

○ ***Questions to ask yourself at this point: ***

■ What did the Format document tell you about the case?
● ____________________________________________________
____________________________________________________
____________________________________________________

■ Did the Format document give you information you can use to build your
outline for the demand letter?
● ____________________________________________________
____________________________________________________
____________________________________________________

■ Did the Format document give you information you can use to build your
outline for the damages memo?
● ____________________________________________________
____________________________________________________
____________________________________________________

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● Notice that this Format document gives us a complete outline for our document,
into which we can directly plug all of the information we get in the File and
Library.

● SAMPLE OUTLINE FOR DEMAND LETTER

○ Introduction
■ Statement that we represent client
■ Purpose of the letter

○ Persuasive statement of facts

○ Legal Issues/analysis of the basis for both claims

■ Assault
● Issue: Trapp committed Assault I
● Rule: R
● Application: A
● Conclusion: Trapp committed Assault C

■ Battery
● Issue: Trapp committed Battery I
● Rule: R
● Application: A
● Conclusion: Trapp committed Battery C

○ Demand
■ Space for specific settlement demand
■ Deadline for compliance
■ Consequences for failure to comply

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● DAMAGES MEMORANDUM NOTES
○ We don’t have a file document for this
○ We should mirror the memo format/headings/etc. from our Task Memo
■ Use your test packet to your advantage!
○ Include proper letterhead, header, statement of task, IRAC, and Conclusion

● SAMPLE OUTLINE FOR DAMAGES MEMO

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 LET’S PAUSE FOR A MOMENT, REVIEW, & RESET

● At this point, we’re only about 20 minutes into our assignment

○ We haven’t even needed to get into the File or Library in depth
○ We already have solid outlines that we can now use to plug all the additional
information into, which will help us for the rest of the task

● This may feel like a lot of work! But this approach will...
○ Save you time in the long run
○ Lead to a more thorough, accurate, and convincing assignment

● Why will this approach help your speed and accuracy?

○ You now have a guide for your reading and note-taking
○ You know what you’re looking for in the File and Library
○ You will be able to read actively
○ You will have an outline that you can easily flesh out into a complete assignment
○ You will only need to briefly review the Task Memo and the Format document to
ensure that you have followed the guidelines

● IF YOU STRUGGLED PUTTING TOGETHER AN OUTLINE FOR THIS

ASSIGNMENT...Don’t panic!!!

● Instead, think about WHY you struggled.

○ Was it because you were asked to draft a document you have never drafted
before?
■ You may be asked to write a document you have never written before—a
fact investigation plan, a jury instruction, a complaint before an
administrative agency, etc.
● Everything you need is in your test packet -- use it to your
advantage! Use what you have been given (the Task Memo, the
Format document, etc.) to their fullest extent.
● The TASK you are asked to complete may be new to you.
● But, the SKILLS you need are skills you already have; you’ve
done legal writing throughout law school, and that’s what this is!

○ Did you feel like you froze up?

■ The best way to avoid panic is to write out answers to several PTs over
the course of your bar study.
■ Set aside time to read, review, and self-assess.
● Read and review both persuasive documents and objective tasks
■ Review MPT®s that require you to write documents that you have never
written before (check your online syllabus).
■ Complete a minimum of six of MPT®s during bar prep.

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 Applying Kaplan Method Step 2b to Miller v. Trapp

● Read the other File documents, adjusting your outline as necessary, and “issue
spotting” for the task

○ Reminder: Start by reviewing the Table of Contents!

○ Take 1 minute and apply Step 2b of the Kaplan Method to the Table of
Contents for Miller v. Trapp
■ (see page 3 of your Miller v. Trapp packet)

○ ***Questions to ask yourself at this point***

■ Which FACTUAL MATERIALS are being provided to you in the FILE?
● ____________________________________________________
____________________________________________________

■ Is this a large or small File?

● ____________________________________________________
____________________________________________________

■ What LEGAL MATERIALS are provided to you in the Library?

● ____________________________________________________
____________________________________________________

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○ Questions to ask yourself at this point:
■ Which FACTUAL MATERIALS are being provided to you in the FILE?
● Blog posts
● Article
● Conversation memo
● Jury Verdict summaries
■ Is this a large or small File?
● File > Library
● This will be a relatively fact-heavy analysis
■ What LEGAL MATERIALS are provided to you in the Library?
● Appellate Court cases
● Supreme Court case

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 Applying Kaplan Method Step 2b to Miller v. Trapp (cont’d)

● Read the other File documents, adjusting your outline as necessary, and “issue
spotting” for the task.
○ Take 10-15 minutes and apply Step 2b of the Kaplan Method to the File
documents in Miller v. Trapp
■ (see page 7 of your Miller v. Trapp packet)
■ We can jot these notes down on scratch paper, OR we can
categorize/sort them right into our outline.

○ After reviewing the file documents:

■ What key facts help/hurt your case?

● RockNation Blog posts:
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________

● Reeling Rock Article:

____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________

● Memo re: Convo with Leffler (Trapp’s Attorney):

____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________

■ What issues did you spot?

● ____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
■ What conclusions did you reach?
● ____________________________________________________
____________________________________________________
____________________________________________________

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● Miller v. Trapp File Notes

○ RockNation Blog posts

■ First Entry
● Miller had a press pass
● Was there with the goal of interviewing Trapp
■ Second Entry
● Trapp gave her a dislocated shoulder
● Trapp punched a photographer at the front of the crowd, took her
camera, smashed it
● Trapp singled her out -- “Get out of my way you little punk, or I’ll beat
the hell out of you.” → raised his arm
● Trapp grabbed her phone out of her hand and smashed it
● Miller was holding the phone → dislocated her shoulder
○ “Have been a wreck since it happened”
i. Devastating
ii. Lots of pain
iii. Medical bills
iv. Arm in a sling
v. Missed a week of work
vi. Had to replace the phone

○ Reeling Rock Article

■ Trapp is being investigated as a criminal matter
● Punched photographer
● Photographs and videos -- going to be presented to the DA
■ Photographer is seeking $5mil in damages
■ “One newspaper reporter was taken to the hospital with a shoulder injury”
● Corroborates our client’s story
■ Establishes that Trapp has a history of this kind of behavior

○ Memo re: Convo with Leffler (Trapp’s Attorney)

■ Trapp doesn’t recall touching Miller
■ If he did, it would’ve been accidental
■ Concedes that Trapp was annoyed about the journalists
■ Trapp didn’t single Miller out or “attempt to frighten her”
■ Upset about the concept of punitive damages -- claiming that our client’s
trying to “capitalize”
■ Miller consented to “jostling”
● We need to update our outline with this information and
refute the defense of consent
● We also know that we now need to look for information re:
consent in the Library

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SAMPLE OUTLINE FOR DEMAND LETTER ***UPDATED***
● Introduction
○ Statement that we represent client
○ Purpose of the letter
● Persuasive statement of facts
● Legal Issues/analysis of the basis for both claims
○ Assault
■ Issue: Trapp committed Assault
■ Rule:
■ Application:
■ Conclusion: Trapp committed Assault
○ Battery
■ Issue: Trapp committed Battery
■ Rule:
■ Application:
■ Conclusion: Trapp committed Battery
○ ***Consent***
■ Issue: Miller did not consent to Trapp’s actions
■ Rule:
■ Application
■ Conclusion: Miller did not consent to Trapp’s actions
● Demand
○ Space for specific settlement demand
○ Deadline for compliance
○ Consequences for failure to comply

30
● Miller v. Trapp File Notes (cont’d)

○ Jury Verdict Summaries

■ $360,000—Cook v. Matthews Garage (March 2015)
● Defendant pushed Plaintiff to floor, screamed at Plaintiff, cursed at
Plaintiff, broke Plaintiff’s arm
● Defendant knew Plaintiff had violent tendencies
● Compensatory
○ Medical expenses—$10,000
○ Pain and suffering—$50,000
● Punitive damages—$300,000
■ $1,500,000—Alma v. Burgess (April 2015)
● Defendant stabbed Plaintiff in torso and leg
● Plaintiff spent 4 days in the hospital
● Compensatory
○ Medical expenses—$100,000
○ Pain and suffering—$400,000
● Punitive damages—$1,000,000
■ $52,000—Little v. Franklin Chargers, Inc. (October 2015)
● Plaintiff was pulled to the ground and dislocated shoulder
● Plaintiff felt humiliated
● Compensatory
○ Medical expenses—$12,000
○ Pain and suffering—$40,000
● Punitive damages of $200,000 requested but denied

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 Applying Kaplan Method Step 3 to Miller v. Trapp

● Read the Library documents and incorporate into the IRAC portion of your outline,
noting any ethical issues along the way.

○ Take 10-15 minutes and apply Step 3 of the Kaplan Method to the Table of
Contents for Miller v. Trapp
■ (see page 3 of your Miller v. Trapp packet)

○ ***Questions to ask yourself at this point***

■ Are the cases mandatory or persuasive?
● ____________________________________________________
____________________________________________________
____________________________________________________
■ Are the cases from the Supreme Court or a lower court?
● ____________________________________________________
____________________________________________________
____________________________________________________
■ Is one case later in time from the same court?
● ____________________________________________________
____________________________________________________
____________________________________________________
■ Are there relevant footnotes or embedded authorities?
● ____________________________________________________
____________________________________________________
____________________________________________________
■ Are there irrelevant authorities?
● ____________________________________________________
____________________________________________________
____________________________________________________
■ Can you clearly set out the rules from the statutes or cases as
parentheticals (e.g. “Holding that under LAW, RESULT when KEY
FACTS”)?
● ____________________________________________________
____________________________________________________
____________________________________________________
● ____________________________________________________
____________________________________________________
____________________________________________________
● ____________________________________________________
____________________________________________________
____________________________________________________

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Miller v. Trapp Library Notes / Case Summaries

○ Horton v Suzuki (Appellate Court held that under Franklin law, where defendant
struck plaintiff outside of martial arts class, battery elements are satisfied if:
defendant acts intending to cause harmful contact, harmful/offensive contact
occurs, and plaintiff shows that they did not consent to the contact. Court further
found that intent is irrelevant when it comes to battery, in that it is sufficient that
“the defendant intended to cause a contact that turned out to be harmful or
offensive”)

○ Polk v. Eugene (State Supreme Court held that when a defendant snatched a
plate from plaintiff, battery occurred because “actual physical contact is not
necessary to constitute a battery, so long as there is contact with clothing or an
object closely identified with the body”)

○ Riley v. Adams (EMBEDDED) (Supreme Court held that where defendant

grabbed a bag from plaintiff by force, that elements of battery were met, as
“Knocking or snatching anything from plaintiff’s hand or touching anything
connected with [her] person, when done in an offensive manner, is sufficient to
constitute an offensive touching”)

○ Brown v. Orr -- (Court of Appeals held that where defendant shook his finger in
plaintiff’s face and made statement that he would “take down” plaintiff, an assault
may have occurred. Words standing alone cannot constitute an assault.
However, they may give meaning to an act, and together, they may create a
well-founded fear of a battery in the mind of the person at whom they are
directed, thereby constituting an assault.)

○ This is what you did in law school -- you know how to do this!

○ Think about what key facts and law you need to extract from the cases to
accomplish your (or the supervising attorney’s or the client’s) goals.

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 Applying Kaplan Method Step 4 to Miller v. Trapp

● Finalize the Outline; reorganize if necessary based on the authorities in the

Library; complete the outline.

○ Take 5-10 minutes and apply Step 4 of the Kaplan Method to your scratch
paper and outline for Miller v. Trapp

○ ***Questions to ask yourself at this point***

■ Have you moved all notes from your scratch paper into your outline?

■ Are your key facts from the File in the analysis section of your outline?

■ Are the holdings from the Library in the rule section of your outline?

■ Is your outline at a point where you can comfortably fill it in to create a

completed assignment?

○ Compare with Sample Miller v. Trapp Outline

■ (see February 2016 Q002 Sample Outline in your Miller v. Trapp handout)

Applying Kaplan Method Step 5 to Miller v. Trapp

● Fill out the outline; write the requested assignment!

○ You might not feel ready for it, but you are! You have all the information,
structure, and outline that you need to write a successful MPT ® assignment.

○ Take 35-40 minutes and apply Step 5 of the Kaplan Method to the Miller v.
Trapp assignment.

○ Compare with Sample Miller v. Trapp Answer

■ (see February 2016 Q002 Sample Answer in your Miller v. Trapp
handout)

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 What’s next?

● Self-assessing your MPT®:

○ Keep track of your timing -- in the beginning, it will take longer. And that’s OK!
○ Scan your answer for your use of the facts.
○ Evaluate your IRAC format. You should be able to look back at your
outline/answer and see the separate parts of your IRAC.
○ Use a roadmap: Include headings and subheadings and an introduction -- make
it easy for the bar examiner to give you points!
○ Use formal language to produce a professional work product.
○ Analogize the cases from the Library to your case (applying them or
distinguishing them as necessary).
○ Apply the specific facts from the File and apply the specific facts from the cases
in the Library.

● MPT® General Considerations

○ Format
○ Tone
○ Professional work product
○ Introduction
■ Clearly present issues/roadmap
○ Analyze the facts and cases
■ Show how the cases apply to the facts in your case
○ Apply the Factors
■ Include law and key facts to support your conclusion
○ Strong closing/conclusion
■ This will be a way for the bar examiner to see that you effectively
managed your time.

Remember, “mistakes you make now are mistakes you don’t make on test day.”

GOOD LUCK!

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