Civil Procedure Multistate Bar Practice Exam

What distinguishes permissive intervention from intervention of right?

1. Presence of common questions of law or fact

2. The need for the absentee's interest to be harmed

3. Time sensitivity of the motion

4. Requirement of diversity jurisdiction

The correct answer is: Presence of common questions of law or fact

Permissive intervention and intervention of right are both forms of intervention in civil procedure, but they have distinct characteristics that determine which type is applicable in a given situation. Permissive intervention occurs when a party is allowed to join an ongoing action at the discretion of the court. One of the defining features of permissive intervention is the presence of common questions of law or fact between the intervenor's claims and the main action. This connection can justify the intervention because it promotes judicial efficiency and helps resolve related issues in a single proceeding. On the other hand, intervention of right occurs when an absentee's interest is significantly affected by the outcome of the existing suit, and the absentee can't adequately protect that interest on their own. In this scenario, the intervention is typically mandatory and designed to prevent harm to the absentee's interests. The time sensitivity of the motion and requirements related to diversity jurisdiction are considerations that can impact how and when a party may intervene, but they do not fundamentally distinguish between permissive intervention and intervention of right. Therefore, the presence of common questions of law or fact is the key factor that differentiates permissive intervention from intervention of right.