Bar Preparation: The MBE

The Multistate Bar Exam (MBE) consists of 200 multiple choice questions in six hours. You take 100 questions in the morning, and 100 in the afternoon. Timing is everything. So is practice. The more questions you do, the better you will perform.

Coverage

The exam covers general principles of law in six areas - Constitutional Law, Contracts, Criminal Law, Evidence, Real Property, and Torts.

General Approaches

You've already learned much of the material. You have to move it from your long-term to short-term memory. Read each question carefully. Know exactly what you're asked to answer. Answer every question. There's no penalty for guessing.

Reading Strategies

Go to the end of the problem and first read the question you're being asked to answer. This allows you to match the facts in the problem to the issues raised in the question. Then read the entire problem - carefully! Next read the answer options (a, b, c, d).

When reading the problem, watch out for:

• Seemingly meaninglss details about people
• Statutes; remember that statutes trump common law.  Read the statute carefully and apply it mechanically
• Conflicting common law rules and no single majority rule

Rewording the inquiry in your head might help

What is the most likely outcome? What will be the results and why? Which claim is most likely to Which is the only claim that can succeed on succeed? these facts and why? What is D's best defense? Why won't D be guilty on these facts? If X loses, the most likely X lost because... basis is...

Beware of:

• Distractors: Answer options that compellingly and confusingly attract in the wrong direction.
• Foils: Answer options that set off one thing to advantage or disadvantage by contrasting with it.

How distractors and foils can trip you up:

• Incomplete definitions and arguments
• Making assumptions from the facts
• Ignoring or overlooking the facts that you have
• Answer options that "sound right" because they use terms that sound like the proper legal terms
• Unfamiliar phrases which really may be correct but are nontraditional rephrasings of familiar legal concepts

The problem with distractors and foils is that all answer options look plausible on the surface.  You must read carefully.

Sometimes, the only way to arrive at the correct answer is to eliminate the incorrect ones. Issue-spotting is important. Be meticulous in reading the answer options. Glance quickly at the modifier, study the reasoning, and then the result. If the reasoning is not correct, the response cannot be correct.

Dealing With Common Modifiers

• Because, since, as
  
  The answer can only be correct if:
  
  

• The reasoning addresses and resolves a central issue or a more central issue than the other response.
• The facts in question unequivocally satisfy the reasoning - if the reasoning says "because he was drunk, the facts must state or infer unequivocally that he was drunk.
• The result is consistent with the reasoning - if the reasoning states because the statement was an admission by a party opponent, then the result must be admissible.

• If, as long as:
  
  The answer can only be correct if:
  
  
• The reasoning is plausible under the facts
• The reasoning addresses a central issue
• The result and reasoning must agree

• Unless
  
  The answer can only be correct if:
  
  
• The reasoning is the only way the result cannot occur
• If you think of even one other way that the result might come about, the response cannot be correct.

• The Judge

Ex.: If John sues Mary for battery, the court should find in favor of... The correct option is the one based on accurate statements of law and fact and is consistent with its conclusion - even if you don't like the result. Start out with no particular conclusion in mind. Do not decide questions of fact. Be alert for misstatements about facts in either party's arguments. Don't select an answer until you've considered all the arguments presented in the answer options. Examine each option and ask yourself: a) are the facts and the law stated accurately? B) Is the conclusion offered consistent with the argument?

• The Advocate

Ex.: Which of the following is the most effective argument in favor of Mary's position? The correct answer is based on accurate statements of fact and law and is consistent with its conclusion - even if you don't believe that your client can win. Examine each answer option and ask yourself:

1. Is the law accurately stated?
2. Are the inferences on which it is based justified by the facts given?
3. Could the argument result in victory for the client?

• The Scholar

Ex.: The interest in Blackacre which John had on the day after Testatrix's death is best described as... Resolve the issue in your mind and then examine each of the answer options carefully; select the one that comes closest to the rule that you have already formulated - even if you don't believe that it is just. Don't try to decide or influence the outcome. Use your knowledge of the law to recognize the legal significance of a particular fact or to select the most applicable rule. Focus on a specific and limited issue.

If the answer option does any of the following, stop your analysis, eliminate it and move on. For an answer to be correct, it must be correct in every respect.

• Mischaracterizes the facts
• Blatant Contradictions
• Goes beyond the facts
• Assumes as true a fact that is actually in dispute
• Misstates the law:
  • Overstates the requirements of the law
  • Cites antiquated rules or rules from an inapplicable body of law
  • Cites rules that do not apply to the facts
  • Overstates or understates the applicable legal standard
    • Caveat: options stating snippet of a rule are OK if the snippet addresses the central issue
• Ignores a central issue: The option is legally and factually correct, but not as precise or effective. An option that is more precise is better than one that is less precise. A more precise option will address the fact and the issues in more respects than the others.

There's no penalty for guessing, but make a best guess. Don't guess until you've eliminated all the definitely wrong responses. Consider the following factors that should influence your guess:

1. Look at the facts and ask yourself, so what? The issue that jumps out is likely to be the issue that the correct response addresses.
    
2. Beware of distractors, foils, seducers.
    
3. Beware of certainties: always, never, cannot, must.
    
4. Beware of responses that rely on relationships between people.
    
5. Beware of focusing on results instead of objectively applying the law to the facts.
    
6. Beware of answer options from unrelated subjects or unstudied theories.
    
7. If two answers are opposites, one is probably true.
    
8. Look for a common issue if you are asked to argue both ways.
    
9. Remember the minority rules.
    
10. Don't get bogged down in things you don't know; pick an answer when time is up and move on.

Prepared by Sheilah Vance, former Assistant Dean for Academic Support, Villanova University School of Law. This material is adapted from Passing the Bar, by Professor Vernellia Randall, University of Dayton School of Law (1993), which is based on Evaluation and Grading in Law School, Michael Josepheson, American Association of Law Schools Section on Teaching (1984).