Provide neutral decision support: issues, governing law, party positions, analysis, and recommended disposition.
Judicial / public work product
How to write an MPT bench memorandum
A bench memorandum is written for a judge or a judge's clerk who has not read the record and needs to be ready for argument. It is neutral by design: it identifies the issues, states the governing law, summarizes each party's position fairly, analyzes the issues, and recommends a disposition. The MPT rewards a memo that predicts how the court should rule and gives a reason for each recommendation, rather than one that lists arguments and stops. Take care to present the losing side's argument at full strength, because a clerk who only hears one side is not helped. Cite the record and authorities accurately, and note the standard of review, since it often decides the result. The framework below provides the skeleton, what to extract from the file, and a rubric to check your draft.
AUDIENCEJudge or judicial officer
Objective, concise, institutionally neutral, and attentive to the record.
Judge or judicial officer
Build this structure before drafting
- 1
Issue and posture
- 2
Relevant facts and record
- 3
Governing standard
- 4
Parties’ arguments
- 5
Analysis
- 6
Recommended disposition and open questions
What to extract
- Procedural posture and available ruling
- Standard of review and burdens
- Preserved disputes and record limits
- Consequences of alternative dispositions
Format-specific traps
- Acting as counsel for one party
- Resolving a fact dispute the court cannot decide
- Ignoring procedural posture
- Recommending relief beyond the motion
A usable opening
The pending issue is whether ___. Under ___, the court should likely ___ because ___.
Score the finished product analytically
The court structure NCBE describes
NCBE's instructions place the problem in the fictitious state of Franklin, in the fictitious Fifteenth Circuit. In Franklin, the trial court of general jurisdiction is the District Court, the intermediate appellate court is the Court of Appeal and the highest court is the Supreme Court. Columbia and Olympia are other fictitious states in the same circuit.
A bench memo for a judge should identify which court is deciding, and which authorities from that hierarchy apply.
What NCBE says about the materials
The instructions say the Library contains the authorities needed to complete the task and may include some that are not relevant. Cases may be real, modified or written solely for the exam, and you should assume they were decided in the jurisdictions and on the dates shown.
NCBE does not name a bench memorandum in its example task list, but it lists a memorandum to a supervising attorney. Follow the task memo's description of who the memo is for.
Practice walk-through: a bench memo on a motion to dismiss
This scenario is invented for practice and is not NCBE material. The task memo, from a judge to a law clerk, asks for a bench memorandum on a motion to dismiss a negligence claim for failure to state a claim. The File has the complaint and the motion papers. The Library has an invented standard that a complaint survives if it pleads facts making each element plausible, and two cases on duty of care. The posture matters more than the merits here: on this motion the judge takes the pleaded facts as true.
Structure the memo so the judge can rule from it: the issue and posture, the facts as pleaded, the standard, each side's argument, the analysis and a recommendation. A sample analytic sentence: "The complaint alleges the landlord knew of the broken stair for four months, which makes the duty element plausible even though the plaintiff does not use the word 'negligent.'" Give the recommendation and the alternative, such as leave to amend on the causation count. A losing memo argues for the plaintiff, uses facts from the motion papers that are not in the complaint, and never tells the judge what to do.
Targeted format drill
15-minute drill
Create a one-page decision tree showing the court’s threshold issue, disputed element, and available dispositions.
Questions about this format
What tone should an MPT bench memorandum use?+
Objective, concise, institutionally neutral, and attentive to the record.
What is the biggest trap?+
The most common failure in this format is acting as counsel for one party.
What court system do MPT problems use?+
A fictitious one: Franklin, in the Fifteenth Circuit, with a District Court, Court of Appeal and Supreme Court, according to NCBE's instructions.
Should I assume Library cases were decided when and where shown?+
Yes. NCBE's instructions say to assume the cases were decided in the jurisdictions and on the dates shown.
Is a bench memorandum an MPT task type?+
NCBE's example list names a memorandum to a supervising attorney, not a bench memo, so follow the task memo for the reader and format.
Can Library cases be altered for the exam?+
Yes. NCBE says cases may be real, modified or written solely for the exam, so read them thoroughly and do not assume they match what you learned.
What is a bench memo's neutral goal?+
To give a judicial reader an even-handed analysis of the issues and likely outcomes, without arguing for one side.
Where do I write my MPT answer?+
In the answer book provided, according to NCBE's instructions. If you use a laptop, your jurisdiction provides specific instructions.
Primary and official sources
NCBE: instructions for taking the MPT↗NCBE: preparing for the MPT↗NCBE: the Multistate Performance Test↗Bench memorandum (Wikipedia)↗More from the MPT document library
This bench memorandum is one of 14 formats in the MPT document library. Compare it against the Draft judicial opinion format and the Case evaluation or litigation strategy memo format to see how structure and tone shift by document type.