Please welcome guest writer, Sean Silverman to discuss his approach to answering MBE questions. Sean runs Silverman Bar Exam Tutoring where he works with students individually and in small groups to provide them with personalized assistance for the Uniform Bar Exam and the Florida Bar Exam. Sean has written two books to assist students with their preparation for the exam: UBE Essentials and MBE Essentials. In addition, he writes a blog @ mbetutorial.blogspot.com covering topics tested both on the essay portion of the UBE and on the MBE. Contact Sean @ email@example.com for more information about his tutoring services.
What exactly is it that makes the MBE so difficult? Well, like the questions on the test itself, there is no simple answer. The test is difficult for people for different reasons. But the existence of differences does not preclude commonalities.
Having taught the test for some time now (almost a decade!), I’ve noticed some patterns. One difficulty is the amount of memorization required of the test-taker to score adequately on this exam. If you don’t know the law well enough there are few if any strategies that will allow you to answer questions correctly with the consistency required to achieve a minimum passing score. But in that sense, the MBE is no different than most other exams.
But there is something unique about this exam. Plenty of people know the law well enough and yet struggle with the exam more than one would expect when considering the knowledge accumulated. And that is why over time my MBE tutoring has shifted from almost exclusively teaching the substantive law to teaching the substantive law and teaching strategies to effectively play the MBE game well enough to pass. An expertise is not required to pass the exam; what’s required of the test-taker is competence.
But competence does not come easy.
It’s important to have a process when taking the exam that will place you in the best position to answer any given question correctly. I like to break that process down into a step-by-step procedure.
Step One: I recommend first reading the question that appears after the facts even before reading the facts. There are quite a few benefits. First, you’ll often learn which subject is being tested in that question. In addition, not only the subject but the topic within that subject is likely to be gleaned simply by reading the question. You’ll know what is being tested so that you can actually seek out an answer as you read the facts. No need to blindly find your way when the question itself provides you with valuable insight!
Step Two: Here is where you can use the knowledge gained from reading the question by carefully reading the facts and seeking out the answer to the question that you now know has been asked. There is much to teach about this step but to keep it very short, you should be actively seeking out the answer as you are reading the facts. By the time you come to the end of the facts it’s very helpful if you already have an answer in mind; you can then find the answer choice that best matches the answer you’ve already formulated in your mind.
Step Three: Now that you’ve read the facts, re-read the question. Then begin a process of elimination. This is perhaps the most important technique that I teach. The test is designed so that you will be distracted by the wrong answer; if you attempt to answer a question simply by seeking out the answer that you think is best, you are very likely to fall for the trap of picking the distractor. Instead, look for errors in each of the answer choices. Be very skeptical, and make the correct answer prove to you that it is correct! You want to eliminate all but one of the answers; when you’ve done that you can pick the answer that is remaining. Sometimes that answer won’t be perfect (unfortunately) but it’ll be better than the answers you’ve eliminated.
Let’s apply these three steps to a sample MBE question from the sample questions provided by the National Conference of Bar Examiners.
A woman from State A filed an action against a retailer in a state court in State B. The complaint alleged that the retailer had not delivered $100,000 worth of goods for which the woman had paid. Twenty days after being served, the retailer, which is incorporated in State C and has its principal place of business in State B, filed a notice of removal in a federal district court in State B.
Was the action properly removed?
(A) – No, because the notice of removal was not timely filed.
(B) – No, because the retailer is a citizen of State B.
(C) – Yes, because the parties are citizens of different states and more than $75,000 is in controversy.
(D) – Yes, because the retailer is a citizen of both State B and State C.
Recall that step one is to read the question even prior to reading the facts. Here we learn from the question that the subject is Civil Procedure and that the topic within Civil Procedure being tested is removal. We need to read the facts with an eye towards determining whether the requirements for removal have been satisfied.
As per step two, we begin to read the facts and learn that the plaintiff who is bringing the case in a state court of state B is a citizen of state A and the the defendant, a corporation, is incorporated in state C and has its principal place of business in state B which makes the defendant a citizen of both state B and state C. We also learn that $100,000 is at issue in the case. Removal requires that the case could have been brought in federal court and for that to be true here since a federal question is not at issue would require that the federal court have diversity jurisdiction over this case. With the plaintiff a citizen of state A and the defendant a citizen of state B and C, diversity is looking promising. In addition, $100,000 satisfies the requirement that more than $75,000 is at issue. There does not look to be a problem with diversity here. But it’s also true that a defendant who is a citizen of the state in which the plaintiff chose to bring the case will not be able to remove that case from state court to federal court if the only basis for removal is diversity even if diversity is satisfied. This will prove problematic for defendant since defendant is a citizen of state B and the plaintiff chose to bring the case in a state court of state B.
Let’s begin to review the answer choices as per step 3 with the goal of eliminating wrong answers.
Choice A tells us that the case cannot be removed because notice of removal was not timely filed. There is a straight-forward rule that a defendant may file a notice of removal within 30 days of receiving service of the complaint. Since 20 days is within 30 days, the notice was properly filed and this answer can be eliminated.
Choice B says that removal is not allowable here since the defendant is a citizen of state B. This answer choice is looking promising but I highly recommend never choosing an answer until all have been read. It’s possible that another answer will look promising and you’ll then need to choose between those two as to which of the two should be eliminated. Remember, always look to eliminate.
Choice C says that the case is removable because the parties are citizens of different states and more than $75,000 is at issue in the case. Classic MBE trickery! This is a true statement in that the parties are citizens of different states and more than $75,000 is at issue. But just because the statement is true does not make the answer correct. We still have to deal with the fact that the defendant is a citizen of the state in which the case was brought, and this answer choice conveniently leaves out that detail. It’s not correct.
Choice D says that the case is removable because the defendant is a citizen of state B and state C. This answer is tempting for a variety of reasons. It’s trying to make you question whether the fact that the defendant is also a citizen of state C will fix the problem as to the defendant being a citizen of state B, the state in which the case was brought. It does not, however, and so the fact that the defendant is also a citizen of state C does not make this case removable since the defendant is also a citizen of state B, the state in which the case was brought. Eliminate this one.
We’ve eliminated all but the answer that we thought might be correct so now we can be confident in choosing choice B as the correct response.
I hope you found the above helpful! Give it a shot, and see how it works for you!