Frequently Tested Topics on the California Bar Exam vs the UBE: Civil Procedure

By changing from two days to three and instituting a 90-minute Performance Test instead of the the old three-hour format, the California Bar Exam (CA) has moved a bit closer to resembling the Uniform Bar Exam (UBE). However, the different testing regimes historically reflect disparities in frequently tested topics, and are likely to continue to do so. Much of bar exam success depends on knowing what topics to prioritize to the point of being able to write about them in your sleep, and which rarely tested topics everyone will cry-laugh about after they show up on the test.

To help students develop this understanding, Bar Exam Toolbox created the Brainy Bar Bank, which organizes essay questions on both the CA exam and the UBE not only by topic, but also by that topic’s frequency, as well as the frequency of subtopics. Comparing the two exams, it becomes clear that the testers in each jurisdiction have different priorities when it comes to which topics can be considered commonly tested.

Topic in Focus: Civil Procedure

An example that stands out is Civil Procedure, which is the most tested essay topic under the UBE, but is second to last when it comes to the CA bar exam. That doesn’t mean that students in CA should blow off Civil Procedure – but it may add some emphasis to UBE-takers that CivPro is likely to pop up, considering it has been tested 24 times in the past 13 years. In CA, Civil Procedure essays have appeared 13 times since 2002. So, while not necessarily infrequent, relative to the UBE and other tested topics (see: 24 Professional Responsibility questions in the same span of time), CA goes a tad lighter on Civil Procedure testing frequency.

Civil Procedure Subtopic Frequency

The difference in Civil Procedure testing between the UBE and CA gets more nuanced when you break the exams into subtopics. For both exams, subject matter jurisdiction tops the list, appearing in more than half of the UBE CivPro essays, and just a little over half of the CA essays. However, as we go down the list, the exams part ways.

In CA, bar takers want to be able to rattle off personal jurisdiction at a moment’s notice, as it is the second most frequently tested topic in CA. Let’s do it together [note: PJ analyses can look a tad different student to student – this is just one variation]:

Personal Jurisdiction

1. Traditional
2. Modern

• Long Arm Statute
• Constitutional
• Minimum Contacts
  1. Purposeful Availment
  2. Foreseeable
• Relatedness

1. General Jurisdiction
2. Specific Jurisdiction

• Fairplay and Substantial Justice
  • Burden on Defendant
  • State’s Interest
  • Plaintiff’s Interest
  • Interstate Judicial Interests
  • Shared Social Policy Interests

Meanwhile, UBE takers want to drill down on different kinds of claims (counterclaims, cross-claims, and joinder of claims), along with motions (motions to dismiss, new trial, judgment as a matter of law, and summary judgment) and service of process, which all follow on the heels of subject matter jurisdiction when it comes to frequency. Conversely, service of process, counterclaims, and motion for judgments as a matter of law have been tested in CA just one time apiece since 2002.

There are some topics that have not shown up at all in a particular jurisdiction. The Erie Doctrine seems like it would be a bar examiner’s ideal cruel joke to play on test-takers, but it has yet to appear on any UBE essay question. And while the UBE has tested every lawyer-to-be’s favorite topic–sanctions–a couple of times, those haven’t come up in any recent CA bar exams. There are more variations like this to be found within the exciting world of Civil Procedure, though why each jurisdiction weighs different topics differently remains a mystery. Until we at BET decode the reasons for these differences, UBE-takers can continue to gloat that they’ve written about the collateral order doctrine while CA bar takers stare at them quizzically.

In light of the recent testing changes in CA, it’s unclear in what ways the UBE and CA may continue to overlap and diverge in the future. Perhaps CA may even adopt the UBE one day, though that may be as likely as UBE test-takers opening their booklets to find a question about a subpoena duces tecum (it hasn’t happened yet.) Wherever you are taking the exam, we wish you the best of luck, and invite you to learn more about frequently tested topics through our Brainy Bar Bank, or by listening to our podcast.

Interested in other subject comparisons? Read more:

• Torts
• Commonly Tested Bar Exam Topics – UBE vs CA