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Let’s say that you had both a photographic memory and unlimited time in which to study for the Multistate Bar Exam. In addition, you had time to read every textbook and every treatise concerning every subject on the MBE. Would you still need to know how to analyze MBE questions? The simple answer is — no, provided of course, that you could read and understand exam fact patterns. Your substantive knowledge would always lead you to the correct answer.
For most of us, that’s just not reality — we don’t have photographic memories, and we don’t have unlimited time to study. Don’t worry, our courses will teach you how to analyze MBE questions. We’ll give you basic tips on how to study, advice on how to time yourself on the MBE, other general advice on taking the exam, how to analyze the facts in MBE questions, how to use process of elimination to arrive at the correct answer, and how to guess at the best response when your reasoning fails you (as it does the best of us).*
In the beginning, there are a few things you should know about the MBE, if you have not already learned them:
While our lectures will cover all of the most frequently-tested topics on the MBE, you may want to re-familiarize yourself with the MBE subjects by reading through your Rigos Multistate Bar Exam (MBE) outlines and doing some practice questions. This will help you further understand the substantive lectures at the live course, and may also give you some insight into what your personal strengths and weaknesses are.
As we mentioned, there are 33 questions on each subject, except for Contracts and Torts, which have 34 each. The Bar Examiners have decided that each subject should be treated equally on the bar exam, and you should divide your study time accordingly. This doesn’t mean that all topics within a given subject are treated equally—e.g., negligence.
First, and most importantly, keep in mind that the exam is given nation-wide. This means that, in general, you must learn the majority principles and ignore the vagaries of local law. You must know what the majority approach is on any given topic, since that’s typically what you’ll be asked. It doesn’t do you any good on the MBE to know that there are two or more views on a topc; you have to know which is the current prevailing view.
Make no mistake about it, the MBE tests details, not broad concepts of law. Thus, when you study, make sure you’re noting the not-so-obvious details and that you understand the aims and the rationales of rules. For instance, you probably already know that, in Contracts, third party intended beneficiaries have rights under a contract, while incidental beneficiaries do not. On the MBE, though, if you’re given a question on third party beneficiaries, you’re unlikely to be tested on something so basic. Instead, you may need to know, for instance, when an intended beneficiary’s rights “vest”. The Bar Examiners know that, if you have only a superficial knowledge of the subject, you’ll see that a question deals with third party beneficiaries, decide that the beneficiary mentioned is an “intended” beneficiary, and therefore give him enforceable rights on that basis. This will probably not be correct. The Bar Examiners want to reward students with more thorough knowledge of beneficiaries, students who know that, before a beneficiary’s rights vest, he doesn’t have enforceable rights under a contract.
Your substantive review for the MBE must teach you to think about details; you simply cannot go into the MBE armed with only general superficial principles of law. *
Knowing what kind of person will be fooled by MBE questions can help you avoid becoming such a person. There are three general types of victims; they are those who:
1. PANIC
2. OPERATE BY INSTINCT
3. ARE UNPREPARED
If you analyze MBE questions, keeping in mind that these are the three kinds of people who will pick an incorrect answer, you can avoid the answers they’d pick and improve your chances of choosing the correct answers. Let’s look at what each of these people might do on the MBE.
PANICKERS
Panic can have disastrous effects on your performance.
What does panicking do? For one thing, severe anxiety actually inhibits your memory from functioning well. As you’ve probably experienced, the more anxious you are about remembering something, the less likely you are to remember it. The only real cure for this is adequate preparation. If you’ve prepared sufficiently, both substantively and by practicing MBE questions (and keeping in mind you need nowhere near a perfect score to pass the MBE), you should be able to keep your nerves from undermining your performance. Remember, you’re not shooting for an A+ here; law school is over. Many people carry over their law school mentality of “I have to get the best score in the class” to the bar exam. That’s a mistake! On the bar exam, there’s no difference between a student who passes by 5 points and a student who passes by 55 points; both pass, and that’s all that matters.
PEOPLE WHO OPERATE BY INSTINCT
You’ve probably heard the old saying a million times — “Your first instinct is generally correct.” On the MBE, ignore this advice at all costs. The Bar Examiners aren’t looking for lawyers who fly by the seat of their pants; they want lawyers who can apply legal principles to factual situations in a rational, disciplined manner. You should, therefore, follow an instinct only if you can tie that instinct to a principle of law.
THOSE WHO ARE UNPREPARED
Obviously, the person the Bar Examiners most certainly intend to snare is the one who is unprepared for the MBE. A person unprepared for the MBE will make mistakes, such as remembering only snippets of rules or forgetting how theories apply to facts. Of course, it’s not possible to be completely prepared for every single legal issue on the MBE, so, to some extent, you’re bound to be underprepared. If you review and understand the substantive law from your course materials and listen to the lectures, you will learn how to analyze questions, you should be able to answer enough of the remaining questions to pass.*
It is imperative that you stick to a schedule when you take the actual MBE. With a hundred questions to answer in each of the two, three-hour sessions, you should finish 17 questions every half hour on the actual exam. This equates to an average of 1.8 minutes per question. The key, however, in your studying, is to work up to this pace. (And keep in mind that it is always better to answer a question than to leave a question blank!)
If you are fearful that you cannot answer questions in 1.8 minutes, start working questions with a three-minute maximum (or 10 in thirty minutes). When you feel comfortable with this pace, drop down to 150 seconds, then to 120 seconds, and then finally to 108 seconds (1.8 minutes).
It is important to work as quickly as possible without sacrificing thoroughness and accuracy. Read and analyze the fact pattern carefully, because you only have time to read it once. You do not want to get behind, as it will chew up time on questions you don’t know and make you run out of time for questions you do know.
Test-takers who take the time to read, analyze, and pace themselves will find the MBE itself more manageable.*
In general, because of the time constraints of the MBE, you’ll only have time to read a factual setting in detail once, so make that reading count! Read carefully to answer correctly, because many wrong answers (“distractors”) are aimed at people who skip over important facts.
A corollary to the “read carefully” rule is that you should be careful not to read facts that aren’t there into the questions on the MBE.
The MBE is a meticulously crated test; the facts you need in order to answer the question will be given to you, so you must rely on those facts and on reasonable inferences from them.*
Most questions on the MBE are framed in the positive; that is, you’re told to look, for example, for the “most likely outcome” or the “claim that is most likely to succeed” or the “best defense.” You may find such questions difficult unless you reword them. This is how to do it:
Question: “What is the most likely outcome?”
Reword to: “What will the result be — and why?”
Question: “Which claim is most likely to succeed?
Reword to: “Which is the only claim that can succeed on these facts — and why?”
Question: “What is Defendant’s best defense?”
Reword to: “Why won’t the defendant be guilty on these facts?”
Question: “If party X loses, the most likely basis for the judgment is that...”
Reword to: “Party X loses because...”
What does this rewording do? It makes you look for one correct answer. In the overwhelming majority of MBE questions, there is only one possible correct answer, because the other alternatives are somehow defective — i.e., they misstate the facts, the law, or both. If you reword the specific inquiry and thus focus your mind on finding one correct answer, you’re less likely to be seduced by distractors.*
While the Bar Examiners do sometimes give you a deliberate red herring, you should always assume that every fact in every question is important.
For instance, normally, you won’t be told any personal characteristics about people in the questions; you’ll typically see only statements such as: “Able contracted with Baker” or “Jones shot Smith,” and you can generally assume that all the people mentioned are sane, responsible adults. If, therefore, a question does tell you more about a person, such as that “Able, a ten-year-old, contracted with Baker,” the extra information given is likely to be important, so you should note it and use it.
In Contract law, what does including Able’s age suggest? An incapacity to contract. The same kind of thing is true in the following examples:
See how it works?*
In a few MBE questions, the specific inquiry or “call” will be worded in the negative; that is, you are asked to determine, for example, “which claim won’t succeed,” “which is the least sufficient basis for admitting the evidence,” “of which crime is Defendant least likely to be guilty,” etc. The primary difference between handling negative as opposed to positive inquiries is in how you apply a process of elimination to arrive at the correct response (this will be discussed in detail below). The process for rewording, however, is the same.
Here’s an example from a past MBE:
In a narcotics conspiracy prosecution against Daly, the prosecutor offers in evidence a tape recording of a telephone call allegedly made by Daly. A lay witness is called to testify that the voice on the recording is Daly’s. Her testimony to which of the following would be the LEAST sufficient basis for admitting the recording?
You should reword the question to read: “When won’t the recording be admissible?” This forces you to look for the only insufficient basis for authentication and not to engage in drawing fine lines as to which type of authentication will be best. You’ll find that rewording such questions makes it considerably easier to answer them. (In fact, the correct response is A, since it’s the only one where the witness has no personal knowledge of Daly’s voice).*
No matter how well prepared you are for the MBE, there will be questions you simply can’t figure out. Don’t be lured into unthinking, unsophisticated guessing on those questions! Instead, keep in mind the tips outlined below. Remember, if there’s one thing the Bar Examiners know how to do, it’s write good “wrong” answers, and the reason those “wrong” answers are good is because they sound as though they should be correct!
Here are some things to look out for:
No one needs to be more precise in the use of language than a lawyer. Learning to communicate precisely is one of the goals of law school education. A first semester law student may define “murder” as the unjustified killing of a human being, but a lawyer knows that an unjustified killing isn’t murder unless it’s an unjustified killing of another human being with malice aforethought.
Some of the foils and distractors that appear on the MBE consist of incomplete or imprecise statements, like those made by beginners in the classroom. An option that says, “John is guilty of murder if he committed the unjustified killing of a human being,” is wrong because it is based on an incomplete definition.
Don’t assume that the examiners left out the rest of the definition by mistake, or that they expect you to know what they really mean. Don’t allow yourself to complete the argument or definition in your mind and conclude that it is correct.**
Some lawyers lose cases because they overlook the obvious. Perhaps that’s why the examiners occasionally create an option which is so obviously correct that there is no rational excuse for missing it. It’s amazing how many applicants reject such an option in the belief that nothing so important can possibly be so easy.
Items regarding the sufficiency of a deed description are good examples of this technique. The general rule is that a description in a deed is sufficient if it adequately identifies the realty conveyed. Usually, it is impossible to decide whether a description satisfies this requirement without knowing something about surveying in general and the geographical area involved in particular. Since the MBE is not a test of surveying or geographical knowledge, however, its creators cannot expect us to determine the validity of a particular description. Instead, they are likely to give the language of a deed description, ask whether it is valid, and then create an option which says, “The description is valid if it adequately identifies the realty conveyed.”
Can anything be more obviously correct? Don’t miss a gift like that one.**
*from Strategies & Tactics for the MBE, Kimm Walton and Steve Emanuel, © 2006
**from Strategies & Tactics for the Finz Multistate Method, Steven R. Finz, © 2004
