Civil Procedure MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Civil Procedure MBE questions.
You will see 25 scored civil procedure MBE questions on the Multistate Bar Exam. In this post, we will review a civil procedure question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Civil Procedure MBE Tip of the Day
MBE Tip of the Day Instructions:
Do your best to answer this civil procedure MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? Next, what is the rule and analysis? Finally, what is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Civil Procedure MBE Question
A plaintiff filed an action against a defendant in federal court, seeking damages for negligence after the defendant lost control of his car on a snowy day and collided with the plaintiff’s car. The defendant has an insurance policy which will pay for the defense of the defendant’s claim as well as most or all of the damages that the defendant is deemed liable for.
Is the defendant’s insurance policy subject to discovery by the plaintiff?
(A) Yes, the defendant must provide the insurance policy to the plaintiff if the plaintiff makes a proper request for production of documents that includes the insurance policy.
(B) Yes, the defendant must provide the insurance policy to the plaintiff even if the plaintiff does not request it.
(C) No, the defendant need not disclose the policy because it is not relevant to the plaintiff’s claim or the defendant’s defense.
(D) No, because insurance policies are precluded from being admitted into evidence if agency, control, or impeachment is not at issue as generally admission of an insurance policy violates public policy.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Civil Procedure MBE Question
Subject: Civil Procedure
Legal Issue: Discovery
Legal Rule and Analysis: Pursuant to FRCP 26, a party must provide a copy of “any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.” This is part of the mandatory disclosures that each party must make.
In this case, under Rule 26, both parties must make mandatory disclosures during discovery. This includes any relevant insurance policies. It does not matter whether the plaintiff requests insurance information. The defendant is obligated to disclose it and provide all of the information to the plaintiff.
Conclusion: The defendant must provide insurance policy information to the plaintiff.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (B) is therefore correct. (A) is incorrect because the defendant must provide this to the plaintiff without a request as it is one of the “automatic disclosures.” (C) is incorrect because the insurance policy is relevant and should be disclosed right away pursuant to the federal rules. (D) is incorrect. Under Federal Rule of Evidence 411, this statement is true. However, here, the plaintiff is not trying to admit the insurance policy into evidence. Remember, that under Rule 26 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”
MBE Tip: If you got distracted by answer choice (D), you are not alone! Generally, if the answer choice stems from another subject altogether (Evidence, here, instead of Civil Procedure), it is usually incorrect. These kinds of choices might be good law, but they don’t actually answer the question because they are dealing with an entirely different concept. A careful reading of this question would note that we are concerned about what happens during discovery. While there certainly are rules that dictate whether evidence regarding insurance is admissible at trial, that’s not what this question is asking. Stick with the answer choices that focus on the subject at hand.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A defendant must disclose all relevant insurance policy information to the plaintiff during discovery, regardless of whether or not it is requested.
MBE Tip: While they may be sound law, you can generally disregard answer choices that deal with an entirely different subject as they likely don’t answer the question at hand.
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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