North Dakota Bar Exam Distinctions

NORTH DAKOTA BAR EXAM DISTINCTIONS

North Dakota administers the Uniform Bar Examination, so the substance tested is the national MBE/MEE doctrine. North Dakota is a relatively "clean" UBE state — its statutory law tracks uniform acts closely (it has adopted the Uniform Probate Code, the UCC, and modern entity statutes). The departures worth knowing are concentrated in tort fault allocation (North Dakota uses a modified comparative negligence "50%" bar with a distinctive several-liability scheme), its recording act, adverse-possession periods, and a handful of probate and family-law points. This page flags those.

📚 This page covers only where North Dakota law departs from the national MBE/MEE doctrine. For the universal law, see the MBE Subject Outlines and MEE Subject Outlines.

I. EXAM FORMAT & SCORING

ND Rule: North Dakota administers the Uniform Bar Examination: MBE (200 questions, 50%), MEE (six essays, 30%), and MPT (two tasks, 20%). North Dakota's passing UBE score is 260 on the 400-point scale — among the lower (more accessible) UBE cut scores. The score is portable, and qualifying UBE scores from other jurisdictions may be transferred to North Dakota within the transfer window.

ND Rule: North Dakota requires the MPRE (minimum scaled score of 80) and a character-and-fitness review administered by the North Dakota State Board of Law Examiners. The UBE does not test North Dakota law as a separately graded subject.

ESSAY WRITING TIP: Because the UBE is graded for portability, write national majority/Restatement rules on the essays. Do not insert North Dakota statutes unless a question expressly directs you to apply North Dakota law.

NORTH DAKOTA BAR TIP: North Dakota's 260 cut is on the lower end of UBE states, but confirm the current figure and MPRE requirement with the North Dakota State Board of Law Examiners before relying on it.

II. TORTS

A. Modified Comparative Negligence — The 50% Bar

ND Rule: North Dakota uses modified comparative fault with a 50% bar. National (the MBE often assumes pure comparative or contributory): rules vary. North Dakota: a plaintiff may recover only if his fault is less than the combined fault of all persons against whom recovery is sought; if the plaintiff's fault is 50% or greater, recovery is barred. In other words, the plaintiff loses at the 50/50 tie. (This is the "not as great as" formulation — contrast with the 51% "not greater than" states like Ohio, where a 50/50 plaintiff still recovers.) Recovery, when allowed, is reduced by the plaintiff's percentage of fault.

B. Several (Proportionate) Liability

ND Rule: North Dakota has abolished joint and several liability in favor of several liability under its modified-comparative-fault statute (N.D.C.C. Ch. 32-03.2). Each defendant is generally liable only for the percentage of damages equal to its own share of fault; a plaintiff cannot collect one defendant's share from another. The fact-finder allocates fault among all parties (and, in many cases, nonparties) and the court enters several judgments accordingly.

EXAMPLE: P (20% at fault), D1 (50%), and D2 (30%) on $100,000 of damages. P's fault (20%) is less than the defendants' combined fault, so P recovers, reduced to $80,000. But because liability is several, P collects $50,000 from D1 and $30,000 from D2 separately; if D2 is insolvent, P cannot recover D2's $30,000 from D1.

C. Caps and Dram Shop

ND Rule: North Dakota caps noneconomic damages in medical-malpractice actions (statutory cap, currently $500,000). North Dakota recognizes dram-shop liability under N.D.C.C. §5-01-06.1: a person injured by an intoxicated person has a claim against anyone who knowingly disposed of (sold or gave) alcoholic beverages to an obviously intoxicated person or to a minor. North Dakota's dram-shop statute is comparatively robust and includes a notice requirement that a plaintiff must satisfy as a condition of suit.

D. Fault Allocation Mechanics

ND Rule: Because North Dakota combines a 50% bar with several liability, the fault-allocation step is outcome-determinative and should be analyzed carefully. The trier of fact assigns a percentage of fault to every person whose conduct contributed to the injury, including the plaintiff, each defendant, settled or immune parties, and (where the statute permits) nonparties whose fault is at issue. The plaintiff's percentage is then compared against the combined fault of the persons from whom recovery is sought — not against any single defendant. This combined-comparison feature matters: a plaintiff who is 40% at fault still recovers against two defendants who are collectively 60% at fault, even though the plaintiff is more at fault than either defendant individually. After the bar is cleared, each defendant pays only its own proportionate share, and the plaintiff bears the risk of any defendant's insolvency. North Dakota imposes no general cap on ordinary negligence damages outside the medical-malpractice context, and punitive (exemplary) damages require clear and convincing evidence of oppression, fraud, or actual malice under N.D.C.C. §32-03.2-11.

ESSAY WRITING TIP: On a North Dakota-specific Torts essay, lead with the 50% bar (plaintiff loses the tie) and several liability. Always allocate fault percentages, test the plaintiff against the 50% threshold, then apply several liability so each defendant pays only its share.

NORTH DAKOTA BAR TIP: Memorize the contrast: North Dakota = 50% bar ("less than"; P loses the tie). Compare Ohio next door at 51% ("not greater than"; P wins the tie). Don't confuse the two.

III. CIVIL PROCEDURE (STATE PRACTICE & LIMITATIONS)

The MBE/MEE test the Federal Rules. The North Dakota Rules of Civil Procedure parallel the federal rules, but limitations periods differ.

A. Statutes of Limitation

ND Rule: Key North Dakota periods (N.D.C.C. Ch. 28-01) include: personal injury and most torts 6 years (North Dakota's general personal-injury/negligence period is unusually long); written and oral contracts 6 years; injury to property 6 years; fraud 6 years (from discovery); medical malpractice 2 years (from discovery, with a 6-year repose); libel/slander and certain intentional torts 2 years; and wrongful death 2 years. The dominant "6-year" default for negligence, contract, and property is a North Dakota signature.

B. Pleading and Practice

ND Rule: North Dakota is a notice-pleading state, with rules tracking the federal model. Joinder, discovery, and summary judgment parallel the federal rules.

ESSAY WRITING TIP: Apply the Federal Rules on the UBE. North Dakota's long 6-year tort/contract limitations are practice points, not exam answers, unless the call specifies North Dakota.

NORTH DAKOTA BAR TIP: The headline number is 6 years for ordinary negligence, contract, and property — but 2 years for med-mal, defamation, and wrongful death. Keep the short-list of 2-year exceptions handy.

IV. EVIDENCE (NORTH DAKOTA RULES OF EVIDENCE)

ND Rule: North Dakota has adopted the North Dakota Rules of Evidence, modeled on the Federal Rules. Relevance, character, hearsay, impeachment, and the hearsay exceptions track the FRE closely, so the MBE answer is almost always correct. National vs. North Dakota: substantially parallel.

ND Rule: As with most state codes, the differences are concentrated in privileges, which North Dakota codifies in its rules (e.g., physician/psychotherapist-patient, spousal, clergy) rather than leaving to common law as the FRE does. North Dakota also recognizes a lawyer-client privilege by rule. Apply the FRE on the exam; note that North Dakota's codified medical privilege has no FRE analog.

ESSAY WRITING TIP: Apply the FRE; North Dakota reaches the same result on the core doctrines. The only divergence likely to matter is a codified physician/psychotherapist privilege, which the FRE leaves to state law anyway.

NORTH DAKOTA BAR TIP: Evidence is essentially the MBE here; don't over-invest in North Dakota-specific evidence rules.

V. FAMILY LAW

A. Divorce Grounds; Property Division

ND Rule: North Dakota allows no-fault divorce on the ground of irreconcilable differences, and also retains fault grounds (adultery, extreme cruelty, willful desertion, abuse of alcohol/drugs, conviction of a felony). North Dakota is an equitable-distribution (common-law) state, but with a distinctive twist: North Dakota courts apply the Ruff-Fischer guidelines and treat all property of both spouses — including separate, pre-marital, and inherited property — as part of the marital estate subject to equitable division. The source of an asset is one factor, but North Dakota does not categorically exclude pre-marital or inherited property from division. This "all property is divisible" approach departs from many equitable-distribution states that wall off separate property, and it more closely resembles a "hotchpot" estate; the result in any given case turns on how the court weighs the Ruff-Fischer factors (duration of the marriage, the parties' ages, earning capacities, conduct during the marriage, and the source and time of acquisition of property).

B. Spousal Support and Child Support

ND Rule: Spousal support is discretionary under the Ruff-Fischer factors (rehabilitative and permanent support both available). Child support follows North Dakota's guideline (a percentage-of-obligor-income model administered by the Department of Health and Human Services). North Dakota has adopted the UCCJEA and UIFSA.

ESSAY WRITING TIP: On a UBE Family Law essay, apply standard equitable-distribution and best-interests principles. Reserve North Dakota's "entire marital estate includes separate/inherited property" rule for North Dakota practice.

NORTH DAKOTA BAR TIP: The distinctive North Dakota family-law point is that pre-marital and inherited property go into the marital pot for division under Ruff-Fischer — unusual among equitable-distribution states.

VI. WILLS, TRUSTS & ESTATES

A. Execution and the Uniform Probate Code

ND Rule: North Dakota has adopted the Uniform Probate Code (N.D.C.C. Title 30.1). A will must be in writing, signed by the testator (or by another at the testator's direction in the testator's conscious presence), and signed by at least two witnesses within a reasonable time after witnessing the signing or the testator's acknowledgment. North Dakota recognizes holographic wills under the UPC: a will is valid as holographic if the signature and material portions are in the testator's handwriting, even without witnesses. North Dakota also recognizes self-proved wills via the UPC affidavit.

B. Elective Share

ND Rule: North Dakota has adopted the UPC augmented-estate elective share. The surviving spouse's elective share is a percentage of the augmented estate that increases with the length of the marriage on the UPC sliding scale (from a small percentage for short marriages up to 50% of the augmented estate for marriages of 15 years or more). This UPC augmented-estate approach (which sweeps in nonprobate transfers) is more comprehensive than a simple "one-third of the probate estate" rule.

C. Intestacy; Allowances

ND Rule: North Dakota follows the UPC intestacy scheme. The surviving spouse takes the entire intestate estate if all of the decedent's descendants are also descendants of the surviving spouse and the survivor has no other descendants; the spouse's share is reduced (with a dollar amount off the top plus a fraction) when there are stepchildren or non-mutual descendants. North Dakota provides the UPC homestead allowance, family allowance, and exempt-property allowance.

ESSAY WRITING TIP: North Dakota is a UPC state, so apply UPC defaults — including the augmented-estate elective share and the UPC intestacy "mutual descendants" rule — which are the same rules tested on a UPC-based MEE essay.

NORTH DAKOTA BAR TIP: North Dakota's estate law is essentially the UPC; the two points to know are holographic wills valid and the augmented-estate sliding-scale elective share.

VII. REAL PROPERTY

A. Recording Act

ND Rule: North Dakota is a race-notice jurisdiction. National: three types (race, notice, race-notice). North Dakota: a subsequent bona fide purchaser for value prevails over a prior unrecorded interest only if the subsequent purchaser took without notice AND recorded first. (N.D.C.C. §47-19-41.) Both conditions are required.

B. Adverse Possession

ND Rule: North Dakota's adverse-possession period is 20 years, reduced to 10 years where the claimant possesses under color of title and pays the taxes. The usual elements (actual, open and notorious, hostile, exclusive, continuous) apply. The 20-year/10-year-with-color-and-taxes structure is the testable departure.

C. Foreclosure; Homestead

ND Rule: North Dakota is a judicial foreclosure state for real-property mortgages, with a statutory redemption period (commonly 60 days to one year depending on the property), and a pre-foreclosure notice-of-intent requirement. North Dakota provides a generous statutory homestead exemption (a dollar amount of equity in the home protected from most creditors).

ESSAY WRITING TIP: For a UBE Real Property essay, apply the general recording-act framework; identify North Dakota as race-notice (both no-notice and record-first required) only if the call specifies North Dakota.

NORTH DAKOTA BAR TIP: Memorize: race-notice recording act, 20-year / 10-year (color + taxes) adverse possession, and judicial foreclosure with redemption.

VIII. CONTRACTS, UCC & STATUTE OF FRAUDS

ND Rule: North Dakota has adopted the UCC (N.D.C.C. Title 41), so Article 2 (sales) and Article 9 (secured transactions) follow national MBE doctrine. North Dakota also has an unusually detailed common-law-contracts statute (Title 9) that codifies many traditional contract principles, but it tracks the standard rules. The Statute of Frauds follows the standard categories (land, suretyship, the one-year provision, goods $500+). No major bar-tested departure exists.

ESSAY WRITING TIP: Treat Contracts/UCC as national on the UBE; North Dakota's codification mirrors common-law doctrine.

NORTH DAKOTA BAR TIP: Don't over-think Contracts — North Dakota statutes restate the standard rules you already know.

IX. BUSINESS ENTITIES

ND Rule: North Dakota has adopted modern entity statutes (the North Dakota Business Corporation Act, a Limited Liability Company Act, and uniform partnership/limited-partnership acts). Fiduciary duties, veil-piercing, and agency follow national/Restatement doctrine. No significant bar-tested departure exists; apply the MEE Business Associations rules.

ESSAY WRITING TIP: Apply national agency, partnership, and corporations doctrine; North Dakota conforms.

NORTH DAKOTA BAR TIP: Treat Business Associations as pure national doctrine.

X. PROFESSIONAL RESPONSIBILITY

ND Rule: North Dakota has adopted the North Dakota Rules of Professional Conduct based on the ABA Model Rules. For MPRE and essay purposes, apply the ABA Model Rules; North Dakota's rules are substantially identical in the core duties (competence, confidentiality, conflicts, trust accounting). Differences are mainly in disciplinary administration through the North Dakota Supreme Court and its disciplinary board.

ESSAY WRITING TIP: Use ABA Model Rules language; North Dakota reaches the same result.

NORTH DAKOTA BAR TIP: Local layer is IOLTA/trust-account administration, not the black-letter ethics duties.

XI. CRIMINAL LAW & PROCEDURE NOTES

ND Rule: North Dakota's criminal code (N.D.C.C. Title 12.1) is one of the most thoroughly Model Penal Code-influenced codes in the country — it was drafted directly on the MPC framework, so its culpability categories (intentionally, knowingly, recklessly, negligently) and offense definitions closely follow the MPC. North Dakota has no death penalty. On the exam, apply common-law and MPC-influenced MBE doctrine, which aligns well with North Dakota's code.

ESSAY WRITING TIP: Apply MBE criminal doctrine; North Dakota's MPC-based code generally produces the same answers.

NORTH DAKOTA BAR TIP: Because North Dakota's code is MPC-based, MPC culpability terms are a good fit for North Dakota practice, but stick to MBE/common-law analysis on the UBE.

XII. NORTH DAKOTA DISTINCTIONS CHECKLIST

1. UBE jurisdiction; passing score 260/400 (lower end); MBE 50% / MEE 30% / MPT 20%; MPRE 80.
2. Torts: modified comparative — 50% bar ("less than"; plaintiff loses the 50/50 tie).
3. Several (proportionate) liability; joint and several abolished (Ch. 32-03.2).
4. Med-mal noneconomic cap ($500k). Dram-shop liability under §5-01-06.1 (notice required).
5. SOLs: PI/contract/property/fraud 6 years (long); med-mal, defamation, wrongful death 2 years.
6. Evidence: ND Rules mirror FRE; codified physician/psychotherapist privilege (no FRE analog).
7. Family: irreconcilable differences (no-fault) + fault grounds; equitable distribution under Ruff-Fischer; all property — including pre-marital and inherited — is in the marital estate.
8. Wills: UPC; two witnesses; holographic wills valid; self-proved affidavit available.
9. Elective share: UPC augmented estate, sliding scale by marriage length (up to 50% at 15+ years).
10. Intestacy: UPC; spouse takes all if all descendants are mutual; reduced with stepchildren; UPC allowances.
11. Recording act: race-notice (no notice AND record first).
12. Adverse possession: 20 years, or 10 years with color of title + payment of taxes.
13. Foreclosure: judicial, with redemption period and notice-of-intent; generous homestead exemption.
14. Contracts/UCC, Business entities, and Professional Responsibility follow national/ABA doctrine.
15. Criminal: MPC-based code; no death penalty; apply MBE doctrine on the exam.