Preparing for the MEE

MEE Workshop

Please see the following Powerpoint for an MEE Workshop conducted on campus a few years ago. This has great tips for working in the IRAC format to produce a well-organized bar essay. MEE: Workshop Powerpoint

Essay Grading

The exact mechanism by which the graders assign scores to your essays is a bit mysterious. In Arizona, the committee on examinations has not released its rubric. This article explains how the MEE grading process works generally. Your responses on the MEE are measured under a "relative grading" system, rather than in a classic normal distribution. The grader in essence sorts the papers into literal or figurative piles that represent papers of the same quality, from 0 to 6.  A paper that is of the highest quality band can achieve the highest grade even if it is not "perfect" or even exceptional.

Although Arizona does not release its rubic, Wahington State has done so. It is useful to review what that jurisdiction has to say about the different score bands.

• 0 represents "no response"; the answer may be blank or is simply unresponsive to the prompt.
• 1 usually indicates a failure to understand the facts and the law and no ability to reason in a cogent manner.
• 2 is below average, significantly flawed, with rudimentary understanding, limited ability to reason and poor writing 
• 3 demonstrates an answer that is inadequate - showing a limited understanding of the facts, issues and applicable principles
• 4 is average. It indicates that the writer understands the facts fairly well, recognizes most of the issues and principles and has a satisfactory ability to reason to a conclusion
• 5 is above average, indicating a fairly complete understanding of the facts, recognizing most of the issues and an ability to reason fairly well
• 6 is a very good answer. It indicates the applicant has a thorough understanding of the fact, a recognition of the issues and applicable principles and the ability to reason to a conclusion in a well-written paper

Notice that each score band turns on more than just a test taker's ability to remember black letter law. The values are a function of recognizing law and relevant principles, but also of being able to apply facts in an analytical way and show the ability to reason and reach a conclusion. Scoring equally well across the board on all the tasks is not necessary to achieving a passing score on the bar exam. It is very important on a test like this to produce some level of written output that demonstrates legal reasoning and analytical thought. 

Don't give up on any MEE task because you are striving for perfection. Even if you feel you can't remember enough of the law to create a good response, you can create one that earns you some points. You are not required to get 5s and 6s on every essay. In fact, several of the top scorers on recent administrations earned 3's on some of their essays and one even earned a 2!

To pass the bar in Arizona, you need a 273 scaled score. For the written tasks to hold up their share of this score, you want to aim for a 136.5 scaled written score. This probably translates roughly to an average between 3 and 4 on your essays and MPTs combined, but don't settle for practice MEE scores in the 3 range; best to strive for achieving at least 4's.

A Sample approach to the MEE

Please see the following sample MEE question and student answer put together by Bar and Academic Success Fellow (and successful bar takers) Gloria Farrisi. Gloria shares her step-by-step thought-process for how to address the question, and an excellent sample answer. The essay prompt - along with several others - can be found on the NCBE website.

July 2022 MEE 

Question #2

Five years ago, Seller started a small winery that catered to a regional market. The winery became wildly successful. Two years ago, Seller decided to retire and sell the winery.

Seller entered into negotiations with Buyer, who was interested in buying a winery. Seller was proud that the label for her red wines bore her picture so, during the negotiations, she told Buyer that she would not sell him the winery unless he agreed to continue using that label. Seller and Buyer orally agreed that if Seller sold the winery to Buyer, he would continue to use the label for as long as he sold red wines.

Buyer and Seller agreed that Buyer would buy the winery from Seller for a purchase price of $3 million plus a "fair share" of the profits generated by the winery during the first year after it was acquired by Buyer. While they did not agree on the precise share of the first-year profits that Buyer must pay to Seller, Buyer said that 20% would be fair, while Seller said that 25% would be fair.

Buyer and Seller entered into and signed a lengthy written agreement. It stated that, in exchange for the assets of the winery, Buyer would pay Seller $3 million at the closing and, 15 months later, a "fair share of the winery's profits" during Buyer's first year of ownership. It also stated that Seller was not permitted to own or operate a winery anywhere in the United States for 10 years after the closing, a term that Seller was happy to accede to because she intended to retire. The agreement did not include any provision about future use of the red wine label with Seller's picture and did not contain an "integration" or "merger" clause.

After Seller transferred ownership of the winery to Buyer, Buyer continued to sell red wines but discontinued using the label with Seller's picture. When Seller complained about this, reminding Buyer of his oral agreement to continue using the label, Buyer said, "The agreement we both signed doesn't say anything about the label."

Fifteen months after the closing, Buyer sent Seller $10,000, which was equal to 5% of the winery's profits during the first year of his ownership. Seller emailed Buyer, complaining about the low amount of the payment and reminding Buyer that they had both understood that a "fair share" of the first-year profits would be in the 20–25% range. In response, Buyer pointed out that the agreement that they had signed did not say that a "fair share" of the profits would be that high.

Fed up with Buyer, Seller came out of retirement and opened and began operating a winery in another state in the United States far from her original winery. 

In litigation between the parties:

1. Is Seller's and Buyer's oral agreement that Buyer would use Seller's picture on red wine labels enforceable even though it was not included in the written agreement? Explain. (Do not discuss any potential statute of frauds issues.)

2. Could Seller introduce evidence of the negotiations about what would constitute a fair share of the winery's first-year profits to help explain the meaning of that term? Explain.

3. Assuming that Buyer is not in breach of any of his obligations under the purchase agreement, would Buyer prevail on a claim that Seller breached her obligations under the agreement by opening her new winery? Explain.

Assume for all questions that, in the jurisdiction whose law governs the dispute, the sale of an ongoing business is governed by the common law of contracts, not Article 2 of the Uniform Commercial Code. 

Steps to Answering Questions

Step 1. Notice seemingly important facts

• Agreement first reached orally
• Conditioning sale on label use 
• Putting fair share in quotes and not defining it at oral agreement but giving a range
• Sign a “lengthy and written” agreement BUT still doesn’t define fair share and leaves out label altogether
• No merger/integration clause 

Step 2. Outline answer 

• 1. Enforceability of oral argument 
  • State the issue 
    • Parol evidence bar?
    • Fully or partially integrated K? 
  • Rule
    • Parol evidence precluding outside evidence 
    • BUT must be fully integrated
    • If partial, can supplement 
    • Full or partial often determined by merger clause or other intent evidence 
  • Application
    • No merger clause 
    • Conditioned entire agreement on use of wine label 
    • Written K doesn’t even mention wine labels 
    • BUT K is lengthy 
    • Outcome?
  • Conclusion
• 2. Introduction of “fair share” definition 
  • State the issue
    • Parol evidence bar defining term even if fully integrated? 
  • Rule
    • Parol evidence rule doesn’t bar outside evidence from defining ambiguous term
    • Ambiguous terms definition → multiple interpretations
  • Application
    • Fair share is ambiguous → fact pattern gives nothing for clarity; parties had different ideas of what it meant; fair is generally ambiguous
    • Their conversation would be admissible to determine intent 
  • Conclusion
• 3. Enforcing the non-compete clause 
  • State the issue
    • National non-compete clause of 10 years enforceable? 
  • Rule
    • Courts find unfair non-compete clauses void for public policy if too broad in scope or length 
    • Defining unfair varies from jxdn 
      • Some hold national or 10 years is per se void 
      • Others look to industry customs and case-by-case determinations 
  • Application
    • Depends on which approach courts take 
      • Nothing from fact pattern indicates industry norm 
      • Could be per se unenforceable b/c of length and national scope 
        • Plus Buyer’s business is far away from Seller
  • Conclusion

Step 3. Answer 

Question #1

Here, the issue is whether the parol evidence rule precludes supplementing the written agreement with the prior oral agreement and whether the agreement was fully or partially integrated.

Generally, parol evidence precludes introducing extrinsic evidence that contradicts or supplements a written agreement when it is fully integrated. Conversely, extrinsic evidence may supplement a partially integrated written agreement. To determine where a contract was intended to be fully integrated, courts look to an integration or merger clause included in the contract. But other evidence that parties intended the written agreement to be the full and complete agreement may be admissible. 

Here, there is sufficient evidence that the parties did not intend for the written agreement to be the full and complete agreement. For one, the parties did not include a merger or integration clause or mention the red wine labels at all. If the parties intended the contract to be complete, they likely would have addressed this issue. Additionally, and arguably most importantly, the seller conditioned the entire sale/agreement on the continued use of their label. It seems unlikely that the seller would have intended the written agreement to be full and complete given their conditions when first making the agreement. However, the agreement was lengthy which implies that it is exhaustive. On balance, the seller’s clear conditional offer, contract’s lack of integration clause, and its lack of addressing the wine label at all overcomes this implication.

Thus because the oral agreement is not contradicting, only supplementing, the partially integrated contract, it is admissible

Question #2

The issue is whether outside evidence (evidence beyond the contract’s language) may be used to define a term in the contract (fair share) or if it is blocked under the parol evidence rule

Generally, extrinsic evidence may be used to define ambiguous terms even in a fully integrated contract. An ambiguous term is one that reasonable minds could disagree on its meaning 

Here, the term “fair share” is ambiguous. There is nothing from the fact pattern to indicate that reasonable minds would understand the amount that a fair share would mean in this context. And generally speaking, the term “fair” has many different interpretations. Thus, outside evidence, including the oral discussion the parties had, would be admissible to define the parties’ intent in using this term. It would certainly be higher than 5 percent, as both parties agreed it would be between 20-25 percent. 

Thus, the conversation would be admissible to define the ambiguous term “fair share.”

Question #3

The issue is whether a court would enforce a national non-compete clause that bars competition for 10 years. 

While breaching contract terms generally holds the breaching party liable, not all contract terms are enforceable. Specifically, courts have held unfair non-compete clauses unenforceable if they are too broad in scope or length. But what is considered a fair non-compete clause varies from jurisdiction to jurisdiction. Some courts find a national non-compete clause of 10 years or greater per se unfair/void for public policy and thus unenforceable. But others look to common practice in a particular industry and make a more case-by-case determination. 

Here, the outcome would be determined by which approach the court chose to take. Following common law rules may result in finding a national non-compete clause per se unenforceable, especially given its length of time. This is further reinforced by the lacking competitive disadvantage the Buyer would pose by opening a new winery “far from the original winery.” 

A court would likely find this non-compete agreement void against public policy. 

Free Sample MEE Questions and Answers

• The NCBE shares some sample MEE questions here.
• More sample MEE questions from Crushendo