Bench Memorandum

Scope

This file covers the bench memorandum as an MPT task type: what the task asks the examinee to do, how it differs from the objective office memorandum and the persuasive brief, its conventional structure, and how NCBE's published materials describe MPT grading. It does not cover the other MPT task types beyond the comparisons just noted, and it does not cover NJ-specific MPT administration logistics. One sourcing note up front: NCBE's free released MPT packets (February 2016–July 2020 administrations, listed on NCBE's "Preparing for the MPT" page) contain no bench-memorandum task [S2][S5], so this file is grounded in NCBE's official MPT materials, the published description of the one recent bench-memorandum MPT (July 2021 MPT-1), and a free secondary description of the bench memo as a legal document; the two conventions that no free official source documents are flagged inline.

Legal Explanation

The MPT framework (NCBE/national). The Multistate Performance Test is NCBE's performance-test component of the legacy Uniform Bar Examination [S1][S2]. The MPT consists of two 90-minute items, each built from two self-contained sets of materials: a File and a Library [S2]. The File consists of source documents containing all the facts of the case, and the specific assignment the examinee is to complete is described in a memorandum from a supervising attorney [S2]. The Library may contain cases, statutes, regulations, or rules, some of which may not be relevant to the assigned task [S2]. The MPT is not a test of substantive law: the Library materials provide sufficient substantive information to complete the task [S2]. The problem is set in the fictitious state of Franklin, in the fictitious Fifteenth Circuit of the United States [S3]. NCBE's instructions advise allocating approximately half of the 90 minutes to reading and digesting the materials and to organizing the answer before beginning to write [S3]. NCBE states that between July 2026 and July 2028, most jurisdictions will transition from the MBE, MEE, and MPT to the NextGen UBE [S2]. All of these points are NCBE/national, not NJ-specific.

What a bench memorandum is (NCBE/national). A bench memorandum — also called a bench memo — is "a short and neutral memorandum that summarizes the facts, issues, and arguments of a court case," used by the judge as a reference in preparing for trial or argument and in drafting a decision, and written generally by the judge's law clerk [S9]. Its defining features for MPT purposes are the audience and the posture: the reader is the judge — the decision-maker — not a supervising attorney, and the memo lays out the arguments of each side rather than advocating for one [S9]. NCBE's own materials show the task in use: in the July 2021 administration, MPT-1 (Winston v. Franklin T-Shirts Inc.) cast the examinee as "the law clerk for the federal judge hearing the case" and asked for "a bench memorandum for the judge analyzing the defendant's claim of fair use under the four fact-specific factors identified in the Act and discussing the arguments that each party will likely make with respect to each factor" [S4]. In that task the defendant planned to move for summary judgment on the fair-use defense, so the bench memorandum analyzed a pending motion [S4]. The parties, court, and dispute in an MPT are exam materials — the Winston scenario is a performance exercise, not a real case — but the Library can excerpt real law: the Winston Library contained excerpted sections of the Copyright Act, 17 U.S.C. §§ 106 and 107, and three U.S. District Court cases [S4].

How it differs from the objective office memorandum and the persuasive brief (NCBE/national). The objective memorandum is written to a supervising attorney: the File's first document is a memorandum from a supervising attorney describing the assignment [S2], and released objective-memorandum tasks use that address — the February 2019 released task instructed, "Please draft a memorandum to me analyzing and evaluating whether Remick has a viable negligence claim against Dunbar" [S5]. The bench memorandum, by contrast, is written to the judge who will decide the matter [S4][S9]. The persuasive memorandum or brief is a separate, listed MPT lawyering task [S2], and released packets show it as party advocacy — the February 2019 packet includes a task to draft a Memorandum in Support of Motion for Preliminary Injunction [S5]. The bench memorandum sits between the two: it is even-handed like an objective memorandum, discussing the arguments each party will likely make [S4][S9], but it is aimed at the decision-maker, and it is expected to help the judge rule — commonly including a recommendation as to how the court should rule (see the grading discussion and _status/unverified_items.md).

Conventional structure (NCBE/national, with flagged conventions). In released MPT materials, the memorandum that assigns the task opens with a MEMORANDUM heading block — TO / FROM / DATE / RE — followed by the assignment [S5]. A bench memorandum conventionally opens with a similar memorandum heading addressed to the judge. Its body summarizes the facts of the case, identifies the issues, and lays out the arguments on both sides [S9]; where the task arises on a pending motion, the memo addresses the procedural posture of that motion [S4]. The July 2021 Winston description confirms the two-sided core — the examinee was to analyze the claim "and discuss[] the arguments that each party will likely make with respect to each factor" [S4] — and the conventional conclusion is a recommendation or bottom line for the judge.

How NCBE's materials describe grading (NCBE/national). The MPT "will be graded on your responsiveness to the instructions regarding the task you are to complete, which are given to you in the first memorandum in the File, and on the content, thoroughness, and organization of your response" [S3]. NCBE publishes drafter's point sheets with its free released MPTs, describing the points encompassed within each released task [S5]. No bench-memorandum point sheet is among the free releases: NCBE's free released packets (February 2016–July 2020 administrations) contain objective memoranda, persuasive briefs, opinion letters, and client letters but no bench-memorandum task or point sheet [S2][S5], and the bench memorandum appears in the free MPT Summaries, which describe each administration's tasks without publishing point sheets [S4]. Bench-memo grading therefore follows the general MPT standard — responsiveness to the task instructions plus content, thoroughness, and organization [S3] — while task-specific grading points (such as whether the response must state a recommended ruling) are not documented in the free materials.

Skills tested (NCBE/national). NCBE describes the MPT as testing six fundamental lawyering skills, including communication — "assess the perspective of the recipient of the communication" and "organize and express ideas with precision, clarity, logic, and economy" [S6]. The bench memorandum is a direct application of that skill: the recipient is the judge, and the memo must be organized so the judge can act on it [S4][S6].

New Jersey context (NJ-specific). New Jersey administers the Uniform Bar Examination: the New Jersey Supreme Court adopted the UBE beginning with the February 2017 administration, and transferred UBE scores must meet or exceed the minimum passing score of 266 [S7]. New Jersey candidates therefore take the MPT as part of the UBE [S7]. The MPT's weight is national: the MBE is weighted 50%, the MEE 30%, and the MPT 20%, and legacy UBE total scores are reported on a 400-point scale [S8].

ELI-10: Explain It Like I'm 10

[HYPOTHETICAL — NOT A REAL CASE] Your cousin is the assistant to the head referee of the city soccer league. In the championship game, the Blue Comets scored in the final minute — but the Red Rockets say the ball never crossed the goal line. The head referee was screened by a player and couldn't see the ball herself, and now she has to make the call tomorrow. She is busy, so she hands your cousin a folder of game records — photos, the linesman's notes, statements from both coaches, and one blurry video that may or may not show the ball crossing — plus the league rulebook. She says: "Don't take sides. Read everything in the folder, check the rulebook, and write me a report: what happened, what the Blue Comets will argue, what the Red Rockets will argue, and which way you think I should rule and why. I'll make the final call, but I need to be ready when both coaches come yelling at me." Your cousin can't look anything up online — the folder and the rulebook are all there is. The report comes out even-handed: both teams' best arguments get written down fairly, the useful facts get sorted from the junk, and it ends with a bottom line — "I'd rule the goal counts, because the linesman's notes and the video agree" — with the reasons laid out.

Translating back to the real rule: the head referee is the judge — the person who has to decide — and your cousin's report is a bench memorandum: "a short and neutral memorandum that summarizes the facts, issues, and arguments of a court case," written so the decision-maker can rule [S9]. The folder is the MPT "File" and the rulebook is the "Library," and they are the only materials available — the closed-universe constraint that governs every MPT task [S2][S3]. The report covers both sides because that is what the task demands: NCBE's July 2021 MPT-1 asked examinees to prepare a bench memorandum "discussing the arguments that each party will likely make" [S4]. And the ending recommendation is what a real bench memorandum commonly includes — flagged in this file as, because NCBE's free materials do not document that element [S4].

Real Case Reference (if applicable)

No published judicial decision squarely addresses the bench memorandum as an MPT task type — the MPT is an exam instrument defined by NCBE's published materials, not litigated doctrine. The governing authority is NCBE's own published description of the MPT and its lawyering tasks [S2], the instructions examinees receive with each MPT [S3], and NCBE's published description of the one recent bench-memorandum task, July 2021 MPT-1 (Winston v. Franklin T-Shirts Inc.) — whose parties and court are hypothetical exam materials even though the Library excerpts real law, the Copyright Act, 17 U.S.C. §§ 106 and 107 [S4]. For the general, non-exam understanding of a bench memorandum, the free secondary source is the Wikipedia entry defining it as a neutral summary of a case's facts, issues, and arguments prepared for a judge [S9].

Key Takeaways

• A bench memorandum is a neutral memorandum written for the judge who will decide the matter, summarizing the facts, issues, and arguments of both sides; bench memos are generally written by a judge's law clerk [S9].
• NCBE's own materials show the task in use: July 2021 MPT-1 (Winston v. Franklin T-Shirts Inc.) asked the examinee, as a federal judge's law clerk, to prepare a bench memorandum analyzing a fair-use claim and discussing the arguments each party would likely make [S4].
• It differs from the objective office memorandum (written to the supervising attorney [S2][S5]) and from the persuasive brief (a separate, party-advocacy task [S2][S5]): the bench memo is even-handed but aimed at a decision-maker [S4][S9].
• Released MPT task memos open with a MEMORANDUM / TO / FROM / DATE / RE heading block [S5]; a bench memorandum conventionally covers facts and procedural posture, the issues, both sides' arguments, and a conclusion — with the work-product heading and the recommendation conventions flagged as [S9][S4].
• Grading is on responsiveness to the task instructions plus content, thoroughness, and organization [S3]; NCBE publishes drafter's point sheets only for released tasks, and no bench-memorandum task or point sheet is in the free released set, so task-specific bench-memo grading points are not documented in free materials [S2][S5][S4].
• The MPT is two 90-minute closed-universe items and is not a test of substantive law [S2]; NJ-specific: New Jersey administers the UBE with a passing score of 266 [S7], and the MPT is 20% of the UBE total score nationally [S8].

Sources

• [S1] National Conference of Bar Examiners, "MPT (Multistate Performance Test)," https://www.ncbex.org/exams/mpt (verified 2026-08-20).
• [S2] National Conference of Bar Examiners, "Preparing for the MPT," https://www.ncbex.org/exams/mpt/preparing-mpt (verified 2026-08-20).
• [S3] National Conference of Bar Examiners, "Instructions for Taking the MPT" (PDF), https://www.ncbex.org/sites/default/files/2023-01/Instructions_MPT_2023.pdf (verified 2026-08-20).
• [S4] National Conference of Bar Examiners, "July 2021 MPT Summaries" (PDF), https://www.ncbex.org/sites/default/files/2023-03/MPT_Summaries_2021.pdf (verified 2026-08-20).
• [S5] National Conference of Bar Examiners, "February 2019 MPTs and Point Sheets" (PDF), https://www.ncbex.org/sites/default/files/2024-10/February%202019%20MPT-Complete.pdf (verified 2026-08-20).
• [S6] National Conference of Bar Examiners, "MPT Skills Tested" (PDF), https://www.ncbex.org/sites/default/files/2023-01/MPT_Skills_Tested_2023.pdf (verified 2026-08-20).
• [S7] New Jersey Board of Bar Examiners, "Uniform Bar Examination (UBE) Information," https://www.njbarexams.org/ube (verified 2026-08-20).
• [S8] National Conference of Bar Examiners, "UBE Bar Exam Scores," https://www.ncbex.org/exams/ube/ube-scores (verified 2026-08-20).
• [S9] Wikipedia, "Bench memorandum," https://en.wikipedia.org/wiki/Bench_memorandum (verified 2026-08-20).

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