MBE General Tips and Strategy

Question 1

Why are statutes a “trigger” to take note of?

Answer 1

Because they often control the answer because either there are conflicdting common law rules or examiners want to see if you can ignore your instincts and read/apply elements of given statute.

Question 2

In what way is each fact given in an MBE question relevant?

Answer 2

ou should assume that if the examiners give you a fact, that fact is somehow needed to help make the right answer right, or at least one wrong answer choice wrong.

Question 3

Some ways to reword question stems

Answer 3

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 . . . ”

Question 4

If you’re asked whether a certain result should occur, then…

Answer 4

…immediately summon to your mind the appropriate test under the rules you’ve learned.
For example, if you’re asked whether Defendant will be guilty of murder, focus on what murder requires: an unlawful killing, neither justifiable nor excusable, with malice aforethought.
If you’re asked if a state statute is constitutional, think immediately of the three-prong standard for constitutionality of state statutes: within state’s power, not violating any person’s constitutional rights, not an undue burden on interstate commerce.

Question 5

in order for an answer to be correct…

Answer 5

every aspect of it must be correct: It must correctly characterize the facts, it must state the correct law, its result must be consistent with its reasoning (if it’s a “two part” answer), and it must address and resolve a central issue.

Question 6

If a response is potentially correct… and if not…

Answer 6

…mark a “Y” for “yes” next to the answer in the question booklet; if not, eliminate it with an “N” for “no.”

Question 7

When you first look at answers, what first should you notice?

Answer 7

The modifier (eg, because, only if, unless, etc.)

Question 8

After looking at the modifier, what should youlook at?

Answer 8

The reasoning. Before you look at the result (yes, no, admissible, inadm, etc.), look to see if reasoning is incorrect due to misstating the facts, the law, or both. If reasoning is incorrect, the result can’t possibly be correct, so you can eliminate it and move on.

Question 9

If “because, as, or since” is used as the modifier, the answer can be correct only if:

Answer 9

The reasoning addresses and resolves a central issue (or at least a more central issue than any other response);
The facts in the question completely satisfy the reasoning (that is, if the reasoning says, “because he was drunk,” the facts must state or imply unequivocally that he was drunk); and
The result is consistent with the reasoning (for instance, if the reasoning states, “because the statement was an admission by a party-opponent,” the result must be “admissible” in order for the answer to be correct).

Question 10

Where “if” or “as long as” is the modifier, in order to be correct…

Answer 10

the reasoning need only be plausible under the facts (that is, there can’t be anything in the facts to suggest the reasoning couldn’t be true), the reasoning must address a central issue, and the result and the reasoning must agree.

Question 11

When this modifier is used, the reasoning must be…

Answer 11

be the only circumstance under which the result cannot occur. If you can think of even one other way the result might come about, the response cannot be correct.

Question 12

There are three general ways in which an answer choice can be wrong:

Answer 12

(1) it can mischaracterize the facts;
(2) it can misstate the law;
and/or
(3) it can ignore a central issue in the question.
This is the order in which you should address each of these possibilities. Remember, if a choice fails in any respect, you can stop your analysis, eliminate it, and move on; in order to be correct, an answer choice must be correct in every respect.

Question 13

Why are factually incorrect answers sometimes a hint?

Answer 13

Because, if true, they contain reasoning that is legally correct. So they can help point out the legal reasoning/rule you’re applying in the question.
But beware, because they can be factually incorrect in other ways that doesn’t involve sound legal reasoning.

Question 14

Common legal errors in wrong answer choices include these kinds:

Answer 14

kinds of legal errors:
* It may overstate the requirements of a crime, tort, or admissibility of evidence;
* It may state an antiquated or otherwise inapplicable rule;
It may state a rule that has no application to the facts;
* It may make an overinclusive statement of the law, which will
be wrong even if it happens to be correct on the facts;
or
* It may overstate or understate the correct legal standard.

Question 15

An answer choice relying on res gestae as the source of admissibility for hearsay…

Answer 15

…can’t be correct. because it is a common-law concept not recognized by the FRE.

Question 16

What are the relevant rules for evidence? transactions in goods? Civil pro?

Answer 16

evi = FRE
goods = UCC
CivPro = FRCP

Question 17

two rules to apply in determining which is the most “effective” of several potentially correct choices:

Answer 17

1. An answer choice that is easier to prove is more likely to be correct than an answer choice that is difficult to prove.
2. A more precise answer is better than a less precise answer.

Question 18

Will bar examiners make some answer choices more or less likely?

Answer 18

No. That’s rookie test making mistakes, and bar examiners are no rooks. Don’t waste your time searching for lapses in test construction or reasoning.

Question 19

Don’t guess until…

Answer 19

… you’ve eliminated all the definitely wrong responses.

Question 20

When your reasoning fails you and you are guessing intelligently, Look at the facts, and ask yourself, “So what?”

Answer 20

If you can’t pick up what the central issue is from the four responses, go back and look at the fact pattern and see if there’s an issue that you may have missed before and seems to predominate. If there is, then it’s likely that the correct answer will address that issue.

Question 21

When your reasoning fails you and you are guessing intelligently, beware of “seducers.”

Answer 21

Make a list of them for each subject.
They sound right, but are more limited in scope than applied in Q’s

eg, prior ID hearsay exception, 14th am priv’s and immun’s clause

Question 22

When your reasoning fails you and you are guessing intelligently, Beware of certainties.

Answer 22

there are few “definites” in law. So be careful when an answer choice uses the words “always,” “never,” “cannot,” “must,” and the like. If a choice states something as a certainty, and you can think of even one situation where it doesn’t apply, it can’t be the best response!

Question 23

When your reasoning fails you and you are guessing intelligently, Beware of responses that rely on “people” relationships.

Answer 23

As a general rule, the fact that people are related doesn’t change the rules of Contract Law or Criminal Law or Tort Law (with the most obvious exception being the fiduciary duty that parents owe to their children). Generally, if an answer choice implies that one’s duties toward someone else are somehow different because of a familial relationship, barring other facts the answer is less likely to be correct than the others.

Question 24

When your reasoning fails you and you are guessing intelligently, Beware of answers that focus only on results.

Answer 24

No one is liable in Torts or Criminal Law solely because of the results of his or another’s acts or omissions. For instance, in Criminal Law, one can only be liable for a criminal act or omission; if those don’t exist, the results of one’s behavior won’t make one guilty. In Negligence, if there’s no duty and so no breach of a duty, there can’t be liability, regardless of the results of one’s actions.

Question 25

When your reasoning fails you and you are guessing intelligently, Be wary of answer choices from unrelated subjects.

Answer 25

what makes the MBE an excellent objective test is the fact that distractors are likely to resemble correct responses in some important respect. Thus, it stands to reason that a response that addresses a totally unrelated subject is less likely to be correct.

Question 26

When your reasoning fails you and you are guessing intelligently, If two answers are opposites, one is probably true.

Answer 26

If there are two answers that are direct opposites, the test maker is probably testing your knowledge of the correct rule, so one of those two answers will likely be correct.

Question 27

When your reasoning fails you and you are guessing intelligently, Remember minority rules.

Answer 27

if no other response makes sense to you, it could be that the case is taking place in a jurisdiction that recognizes a minority rule, and this makes an otherwise unattractive option the party’s best argument. This doesn’t mean that you should gear your studying to memorizing minority positions, because that is not a sensible use of your study time. If, however, you’re reduced to guessing and you just happen to remember a rule that you know is followed by a minority of states, it might be worth applying it.

Question 28

When your reasoning fails you and you are guessing intelligently, Choose the longest response.

Answer 28

If you’ve narrowed the responses down but simply cannot choose among the remaining answers, choose the longer one; since it probably contains more reasoning, it’s more likely to be precise, and thus more likely to be the correct response (barring any clear facts indicating otherwise).

Question 29

When your reasoning fails you and you are guessing intelligently, Most importantly, don’t get bogged down on questions you don’t know!

Answer 29

As you practice, learn to apply these guessing techniques quickly. When you’re reduced to guessing, the most important thing is put down at least a tentative answer and move on to questions you’re more likely to know. Remember, you’re likely to answer about half the MBE questions fairly easily. If you waste time on questions you really don’t know and can’t reasonably guess, you run the risk of not having time to work on those you’re capable of answering. Especially in Real Property and Civil Procedure, you’ll find a number of questions that are technical, lengthy, and obviously difficult — so take care not to spend undue time on these.
What you might do is keep a list on a piece of scratch paper of the questions you want to come back to, if you have the time at the end of the session. Of course, as you answer each question, you should mark the responses you definitively eliminated as incorrect responses, so that, if you do have time to re-analyze the question, you won’t waste time going over incorrect responses twice.

Question 30

Maintain your concentration all the way through.

Answer 30

You’ll probably find that it’s difficult to concentrate in the last hour or so of each session. If you have to, get up and get a drink of water, bite the inside of your cheek, dig your fingernails into your palms — do anything you have to do to stay focused on your work. The questions are randomly organized, so, if you don’t concentrate toward the end, you’re likely to miss some questions you’d otherwise find simple.

Question 31

d. Answer questions in an episodic fashion.

Answer 31

Don’t let your reaction to any one question influence how you face ensuing questions. For instance, there will frequently be questions you’ll find very easy. If this happens, thank your lucky stars, fill in the answer sheet, and go on. By the same token, if you’re stunned by a tough question, make your best guess and then start completely fresh on the next question — don’t go on thinking about a question you had some doubt about. (Although, as we’ve discussed, you can answer tentatively and make a list of questions to return to, if you have the time.)

Question 32

Don’t skip around unless you need a break on longer fact patterns, in which case carefully annotate that you are skipping a question and mark the correct box in ensuing questions

Answer 32

if you must skip around, just glance at the sheer length of questions without reading them at all.

Question 33

DO NOT FALL BEHIND: 17 QUESTIONS PER HALF HOUR. THERE ARE LIKELY SOME EASY ONES AT THE END, SO MAKE SURE YOU GET THERE.

Answer 33

It’s imperative that you stick to a schedule when you take the MBE. With a hundred questions to answer in each of the two, three-hour sessions, you should finish 17 questions every half hour. Whatever you do, don’t get behind! Otherwise, you may chew up time on questions you don’t know and run out of time for questions you do know. (Remember, the questions are distributed randomly with respect to difficulty, so there are just as likely to be easy questions at the end of the test as at the beginning!)

Question 34

RELAX

Answer 34

When it comes time to take the MBE, and you’ve prepared as much as you can . . . relax! Tens of thousands of people every year pass their state’s bar exam, and they aren’t any smarter than you are.