Michael Green's CivPro Blog

Q. 9 of the MBE Sample Questions

Let's return to Q. 9 of the MBE sample questions (by the way, this discussion is definitely not for my current civ pro class...yet):

9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of remedies.
(D) The state-court judgment is the law of the case.

(C) and (D) are obviously nonstarters. The question is whether (A) or (B) is right. Let's start with issue preclusion. The examiners are right that issue preclusion is a problem because we do not know why the jury returned a verdict for the truck driver. It may not have been because the driver was found non-negligent. Indeed it may be that the issue of the driver's negligence never came up (perhaps negligence was admitted). The only finding might have been the contributory negligence of the motorcyclist. We just don't know. For that reason, I can't see why the examiners even say, "It is true that the same negligence issue that was presented against the truck driver is being presented in the action against the company and that that issue was actually litigated in the first action—two requirements for the application of issue preclusion." We don't know that the negligence of the driver was actually litigated and decided in the first action. Indeed, we don't even know that the action against the driver was for negligence. The question doesn't even say that! 

MBE Civ Pro Exam

The Multistate Bar Exam will have Civ Pro questions starting in  February 2015. Here are some sample questions. I agree with Prof. Clermont that Question 9 is problematic, although my take on it is slightly different. I'll say a bit more about it soon. For the moment, here is the question:

9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?

(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of
remedies.
(D) The state-court judgment is the law of the case.

It goes without saying that this is way down the road for this year's class...

A Message for This Year's CivPro Class

In addition to occasional posts on my own research, this blog is mostly for written responses to student questions. (Most questions I'll answer orally, but for particularly interesting or widespread questions, I like to provide written responses.) Later in the semester, you should also find it useful to look at some of the old exam questions and answers posted here, to anticipate what the exam will be like. But some of these old questions address material that I won't discuss this semester. Struggling with them won't be helpful. In addition, I discourage you from reading any of these old exam questions until we are sufficiently advanced in the course. I'll let you know which ones to look at when the time comes...