6. Tips for Multistate Bar Examination (“MBE”)

What is MBE?

  • MBE is a 6-hour, 200-question multiple choice exam
  • MBE carries 50% weight of the whole Bar Exam
  • Examinable topics:-
    • Constitutional Law
    • Evidence
    • Civil Procedure
    • Criminal Law and Procedure
    • Contract
    • Tort
    • Real Property

What type of questions appear in MBE?

  • MBE primarily tests your ability to “analyze flexibly“, instead of “memorizing rigidly”
  • See following example questions for illustration:

Tip 1: Read the last sentence of the question carefully

  • Last sentence of question usually tells you the cause of action being tested
  • Using above question as example, the last sentence of the question is:-
    • “In a tort lawsuit against Smith (here, the wrongdoer), is John (here, the victim) likely to prevail?”
  • Tort lawsuit can include strict liability action and negligence action – you must analyze both cause of actions, but not omitting one of them
  • Analysis:-
    • Law
      • Strict Liability: Wrongdoer does not owe liability to a trespassing victim
      • Negligence: Wrongdoer may still owe liability to a trespassing victim; however, if the victim voluntarily assumes the risk of his own conduct, then the wrongdoer does not owe liability to that victim in any event
    • Application
      • Victim here is a trespasser, so there is no strict liability
      • Victim here knew the dog is dangerous, yet still decided to trespass the yard. This means victim voluntarily assumes the risk of his own conduct, so there is also no negligence
    • Conclusion: There is no viable tort lawsuit against the wrongdoer.

Tip 2: Always, always, always use Elimination Strategy

  • It is too important and I must emphasize again – always, always, always eliminate all “worse” choices before picking you ultimate answer
  • Most candidates lose mark because they rely on their preconceived notion when picking a choice – instead, YOU MUST ALWAYS REVIEW ALL THE 4 CHOICES
  • Each of the 4 choices could be correct in some aspects, and yet flawed in some other aspects – MBE tests your ability to choose the better answer
  • Analysis:
    • Eliminate Choice B
      • “Correct” aspect
        • Wrongdoer does not owe strict liability to a trespassing victim
        • Victim here is a trespasser, so there is no strict liability
      • “Incorrect” aspect
        • Tort lawsuit can include strict liability action and negligence action
        • Whether victim is a trespasser or not, is not decisive as to whether there is negligence liability
    • Eliminate Choice C
      • “Correct” aspect
        • “Invitee” means someone who enters the land to confer economic benefit on the landowner
        • Landowner is usually liable to an “invitee” in a tort lawsuit
      • “Incorrect” aspect
        • Victim here as attempting to take away shovel from the land, instead of giving anything of value wrongdoer
        • Victim is not an invitee, so this choice is not applicable at all
    • Eliminate Choice D
      • “Correct” aspect
        • “Abnormally dangerous activity” means activity not of common usage and creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised.
        • Landowner is usually liable for his “abnormally dangerous activity” in a tort lawsuit
      • “Incorrect” aspect
        • Many of the wrongdoer’s neighbors have kept dogs for guard duty, so it is common usage
        • Keeping dogs here does not amount to abnormally dangerous activity, so this choice is not applicable at all
    • Choose Choice A because it is correct in all aspects
      • Strict liability: Victim knew the yard is fenced-in, so he was aware that he was trespassing, and so he could not succeed in a strict liability action
      • Negligence: Victim knew the dog is dangerous, yet still decided to enter the yard, so he voluntarily assumed risk of his conduct, and so he could not succeed in a negligence action

Tip 3: Do real past paper questions, but not “simulated” practice questions

  • I always and only recommend two sources for real past paper questions:-
  • Many other Bar Review Courses offer their home-made “simulated” practice questions drafted by their instructors – However, you should scrutinize the effectiveness of those “simulated” practice questions
  • My personal experience is that simulated questions often deviate too much from real exam questions, in terms of length, context, and difficulty
  • Not only are those simulated questions poorly drafted, some of them are even out-of-syllabusworking on those questions is a waste of time
    • If you worked well on simulated questions, this gives you false hope
    • If you performed poorly on simulated questions, this meaninglessly demotivates you
  • Some Bar Review Courses claim that they offer “real” questions. But the chances could be that:
    • Among all practice questions, only very few of them are “real” questions, while the majority are “simulated” questions (e.g. 10% real questions, and 90% simulated questions)
    • They will not tell you which questions are “real” and which questions are “simulated” – if makes it difficult for you to manage your expectation

A few further remarks:-

  • Although MBE questions are deliberately designed to be tricky, those traps are usually “old wine in new bottle
  • It is virtually certain that you will perform very poorly in the first few attempts of doing the practice questions – but don’t be frustrated, it doesn’t matter; making mistakes are inevitable
  • Effective learning must always go through the following 5 steps:
    • 1. Understand the concept in your own words
    • 2. Do practice questions
    • 3. Make mistakes
    • 4. Learn from mistakes
    • 5. Re-visit the concept + review mistakes you made before

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