My advice for the MBE

Please note, I am not currently an attorney nor any sort of expert on Bar prep or exam prep. I am, however, one of those people who are good with multiple choice tests. I test better than my overall academics. The advice listed as 8 tips further below, is something I scribbled down after taking February 2019 California bar exam (with a uniform MBE component). Having now learned that I passed, I am hoping that some other people may find this advice useful. It is my step-by-step approach technique to each MBE question.

First, a bit of history.  Sometimes when I need to take a test, I assume I will do well without much prep. I made that mistake with California Bar exam in July 2018.

My MBE score in July was 1407, which would be enough for most states but not CA. But that was not all — firstly I felt I genuinely did not know enough law. Second, I experienced a complete nervous breakdown and a panic attack towards the end of the morning session. I am middle aged, and this was a critical information overload, too many distinct fact patterns over too short a period of time.  I concluded that the reason people around me were not fainting and hyperventilating was that they have done, as, I know, most Bar Prep tutors recommend, hundreds or thousands of practice problems. There is a finite number of patterns there, so I assume by doing a few thousand you eventually learn and recognise them all.

Before I took the Bar again in February 2019, I made some changes. The changes, in the end, mainly consisted of me doing 2/3 week crash course in substantive law, from 5-year old set of Barbri  subject lectures someone gave me. I did not watch most of Barbri MBE question-by-question tips lectures — I watched one or two and then quit. But I feel I mainly needed law, rather than exam coaching. I looked into some openly available “MBE” questions online and found them, frankly, useless. I also do not believe they resemble the actual exam well enough. Please note that, aside from developing the below tips, I do NOT, in the end, believe that one needs to do any number of thousands of practice questions.

All I have ever done, was the 4 actual NCBE tests contained in Multistate Goat book I bought in 2018. I did 2 of them before July, and 2 before February bar. The second time, I did it after the entire review of the law (eg many hours of video lectures back to back). As I was doing practice MBE questions afterwards, I reviewed explanations for all wrong answers, and made a chart for myself, as to which subjects I had most mistakes in (understandably I then re-read outlines for these subjects). I also kept track of all questions to which I changed my initial answer, to see if the tendency was that my initial instinct or my weighed considered reasoning were better. I did not find any consistent trend (I changed as many right  initial answers to wrong ones, as I did the other way around).

I also printed some flowcharts and graphics for some things from Barbri mini conviser to review, and took some of them to review on the way to and immediately before going in. (I referred to California Bar tutors total bar preparation book on some CA material, but this is not relevant to the MBE).

I did not practice any essays, other than taking July bar, thinking I was pretty awesome and receiving awful grades. I obviously managed to somewhat improve, by absorbing some silly (in my view) advice out there – such as, make my handwritten answers look as mush as possible like an outline. I even broke down everything I wrote into IRAC bits and literally titled them “issue, rule” etc). This looked ludicrous. But i passed!  I applied common advice to write a draft plan to the first essay, which therefore took 2 hours and the other 4 were the usual hasty scribble/ hastily scribbled outline with a lot of paragraph titles and highlights. In the end, I have little useful advice on essays, except that you should probably type them. I wrote both exams by hand but regret it.

Now, people are different. I am quite experienced at taking tests, and multiple choice tests, and do well on them. I am experienced in writing generally and even writing essays and writing essays by hand. So my advice not to practice might not work for people with less experience or aptitude. But for me, the real reason for July failure was obvious – well, it was not obvious to me in July! But it is now. I did not know the law well enough, and I did not know enough about the MBE itself in advance.

Here are the tips I wrote down after February 2019 MBE.

1. You must know substantive law. This is NOT a common-sense/ comprehension test (like LSAT or GRE).
You need your full substantive law review, at least in a form of those 2-day per subject Barbri, or other Bar prep lectures. That is regardless of how much law you already know, you need to be able to focus specifically on the law you need for the Bar.
Otherwise, you will be trying to operate with too much information at the same time, and your brain will fail.
Whatever knowledge you do have from school, life experience, work or previous practice, will be as much help as it will be a distraction.
In fact I have had to use knowledge from life/experience on essays much more than on the MBE.
I have ever only had to answer two MBE questions based on what I empirically knew to be true from life experience – those questions related to residential property zoning.
I assume it was actually also in the Barbri property lecture, I simply turned it off towards the end of the 8th hour because I thought I knew property.
You do NOT need 3,5 7 or 10 years of law school, or any law school, to do well on the MBE.
A candidate with a graduate-level IQ and experience in multiple choice-testing can take this test and pass it.
But they WILL need to spend about 2 weeks actually studying the sum total of whatever is considered the totality of legal rules needed for the MBE.
Take it as an intellectual challenge, a stand-alone thing in itself, not a measure of how good your education or professional ability is.

2. Somewhat contrary to what we are used to doing on some other multiple choice tests, I suggest that, as you read the questions, cover the answer options with your hand and

(a) circle or underline key words that you need to process, because you don’t have time to process all fact patterns in their entirety on the timed exam,
so circle anything that are dates, indications of whether someone is a BFP or a donee, being told that something is VALID,
anything that identifies intent, etc –

(b) while you read the fact pattern, you form your own brief answer, in your mind, or at least identify and quickly scribble down an issue on which the question, in your own mind so far, turns.
Most of the time you will form that opinion before you read the call of the question, but pay attention to the call,
because 10-20 percent of the questions have an unexpected call that is not what you’d normally expect from the facts.
If there is an action, pay attention as to who is actually suing and on what theory, for what purpose is evidence offered, etc.
(For example, if the question clearly describes a problem with true commercial speech, I’d scribble key word  ADVANCE and look for an option that has it.
If the question is property disposition, I say in my mind – “1/3 to child 2, 1/3 to the church, 1/3 to widow”)

THEN

(c) check if your own proposed answer is there among the options. If it is, trust your instinct –
If you are out of time or very short on time, you will be able to at least go straight for that answer.
80-90 percent of time this is the right answer.
The other options are just there to distract you.
This is obviously helpful as to questions to which you likely know the answer.

If you don’t or are not sure, go to step 3.

3. Those of us who took a lot of multiple choice tests, know how to eliminate answers that make no sense at all.
On most MBE questions, there will be at least 2 asnwers that make no sense at all. Well, sometimes it is 1, 3 and sometimes it if frankly all 4.
But as a rule, you must be able to find at least 1, better 2 answers that make no sense whatsoever.
There will be at least one answer that sounds great but is not relevant at all to the subject matter, and one that is a made-up nonsense that may include a non-existent theory or rule, or perhaps a jumbled faux rule named or formulated from words borrowed from two different rules.
There will then be one you can rule out, after a second more thought, because something with it will be wrong.
(Example – For example, the call says the action is in strict liability, so even the best worded answer that seems to evoke elements of negligence, duty and breach, will not be right, or It will say that someone wins based on after-acquired title, which is sort of relevant and is a real thing, but come to think of it, grantor actually hasn’t acquired title, so that isn’t the problem – or another option will refer to something made-up, next to which I will even scribble NOT A THING. Like, it will say “Congress can exercise its absolute plenary power over train schedules” or some other nonsense).
If you are left with one answer after that elimination, ask yourself for a brief moment – does it make sense in context?
If “why not”, this is your answer. Move on.

4. Sometimes, the above still will not help.
If you are still clueless, the next step is to analyze answer choices on their face.
Barbri lecturers will tell you, that if there is an answer choice that claims to be based on existence of a rule or theory or law or principle you never heard of — doesn’t ring a bell – it is probably made up. I agree.
But Barbri lecturers lecture to those who recently graduated from a US law school.
If you have NOT recently graduated, or not from the US law school, or did not go at all, or did just the LLM, this approach can fail you.
There may be genuine things you have not heard of, especially if you did not listen to all Barbri substantive law lectures for the bar start to end.
How do you tell which thing you have not heard of is made up, or which is real?
The made up thing usually will have only ONE answer choice based on it.
If there are two or three answer choices based on the same thing you have not heard of, it is not made up.

MOREOVER there is high likelihood that if one choice does not make sense, and two or three others are based on the same principle with little variation
of one or two extra facts or conditions, then the correct choice probably lies between them.
They will not waste more than one option on a completely irrelevant thing or made up thing.
(The only expection is a type of pattern where answer choices are “what injuiries can Tom be lieable for” ans answers are “Leg, head and arm”, “leg and head only”,
“leg only” and “no injuries”, then obviously it can be “no injuiries”.)

5. If still nothing, look back at step 2 and what you thought the answer should be, and see if the theory you never heard of in step 4, may actually by any chance be an euphemism for that, and not a made-up thing.

For instance-

  • if you thought “double jeopardy” they may use a “lesser included offense” as a euphemism for that, although it is imperfect.
  • “reckless indifference” and “depraved heart” are the same thing,
  • If you thought “after acquired title” they may use “estoppel by deed”,
  • if you thought “res judicata” they may say “claim preclusion”, and
  • issue preclusion confusingly is “collateral estoppel” – Americans REALLY like the word “estoppel”.
  • Adverse possession is used almost interchangeably with “by prescription” or prescriptive title or easement, even though not exactly the same thing.

So you may be looking at a fancier name of what you thought was the answer.

Alternatively, the answer may contain restatement of the rule or principle you were expecting, that is rephrased or expressed in slightly different words, in order to see if you recognise its meaning. This will NOT happen to words that have been known to denote standard of constitutional review, but it may happen to other things. They do not always test on established terminology but sometimes describe something in different words to confuse you.

6. If nothing yet, look at the not yet eliminated answers again. Maybe they will refresh your memory of something you have seen previously on the test or on your practice questions, or heard from a Barbri lecturer.
All MBE questions are recycled, they literally somethings put in questions that had been released in prior versions 5 years ago. Verbatim.

Sometimes names are changed or numbers but the pattern is the same, or something may be a re-arranged version of a question from the same test 20 questions ago or from the morning session- moreover, I would sometimes if I have time go back and try to compare the patterns and outcomes, because you can balance them against each other as they may be presented in a mutually-complementary form.

Or I search my memory for incidence of questions I previously answered wrong, or changed from right to wrong in error, in the practice test, or did not know, and looked it up.

Then there are general MBE trends.
Like, at one point I noticed that answers that evoke President’s power over Foreign Affairs tend often to be wrong, even though the President definitely does have the power, so they are tempting.
Criminal defendants on average tend to be in a stricter, less advantageous position of those plausible (end up worse off of the options possible).
Barbri lecturers always tell you what other options tend to be wrong in specific subjects, or what general principles tend to hold true.
Does this fact pattern remind you of anything at all? I often go like, well, hmmm, “last time we had this sort of thing and it was that answer, even though I still disagree”.
They also tend to test on the same things in say, property.
There is no personal liability for mortgage deficiency by a new owner who did not expressly assume the mortgage.
You cannot convey more interest in real estate than you yourself have (if you do not have a fee simple, you cannot grant it to anyone else).

Acceptance is valid when mailed, but revocation when received. Requirements and output contracts are valid.
Price term can be implied between merchants under the UCC.
You cannot hold on to federal jurisdiction only through federal counterclaim even though diversity is destroyed.

Multiple questions are based on these few premises alone.

7. A lot of questions and answers revolve around elements of crimes or torts. You often have to read the question carefully. There is also a finite list of recurring issues. One has to just remember to look out for them.
If it asks about rare things, like res ipsa loquitor, they are looking for exclusive control.

What crimes has he or she commited? Look for intent. General or specific?

Arson for instance is a specific intent crime, you have to intend not just the act but the result. If you start the fire to light the way and burn down half the house, it’s not arson.
Burglary is breaking into an dwelling of another at night with intent to commit felony therein, look for patterns where defendant was not intending to commit a felony at the time of breaking in.

Intoxication negates specific intent. Involuntary intoxication is defense against all crimes (but it’s rare).

If the P is suing in strict liability, discard patterns that talk about elements of negligence.

To be guilty of a murder of a person accidentally killed by your conduct, you have to be commmiting a felony. if whatever you are commiting is not a felony, then you cannot commit murder in the process.

Battery is offensive touching, which is any touching without consent.

Duress has to be immediate, like a gun to one’s head, not abstract pressure. It is not a defense to murder.

False imprisonment has to be known to the victim at the time it is in progress, look out for people locking up sleeping people and opening the door before they woke up.

One that keeps irking me — defense of necessity applies to YOUR property placed on someone else’s property in tresspass, even if you personally have gone. They do like to test on private necessity. It is late and flood waters are rising, you drive your precious car up someone’s driveway and walk/swim away, next morning the owner wakes up and pushes your car into the floodwaters. They are liable, not just to save you, but apparently also your car. Do not try this in real life!

In Contracts, presumption is for validity unless induced by misrepresentation. In case of breach, put the party back to where they would have been but for the breach
(but not before the contract!).

Adverse possession must be, among other things, adverse.

Anywhere there is a motion to dismiss or for summary judgement and a triable fact or facts have been presented in evidence, more likely then not the right answer is it should go to the jury.
facts- jury, damages – jury, equitable relief – judge.

They like to test on negligence per se – liability for injuries that result from breaking of a law. Was there a law and did the defendant break it?

Note the MBE rarely talks about first degree murder, usually a common law or second degree murder which is a general intent crime, not specific.

8. Last but not least. Genuinely you don’t have a clue. What do you THINK should happen?
Especially in contracts, property, somewhat in tort, often the outcome is one that makes sense — is equitabble, eg fair.
If you thought, well, someone is promised a gift of land but never gets the deed, and yet
they convey it to grantee 2, and then later they get the deed themselves, well, should the grantee 2 still have it?
They did convey something they themselves did not have, but how is this grantee 2’s fault? there isn’t anyone better looking to take, so sure, they have it.
This is acquired title eg equitable estoppel, maybe you didn’t know that but this is the logical result.
Zoning rules changes usually grandfather in existing uses/ structures.
Here is where you DO use your life experience and general knowledge. You have it in a lot of areas, the older you are – the more.
Property, zoning, well known issues of Constitutional law, contracts, landlord and tenant, all of those things you may have heard of,
and common rules on those things make sort of sense.
Figure out the equitable outcome and it is still likely the right one.