When I took the bar exam, MBE’s only accounted for one-third of the overall grade. I assumed my writing skills would overcome a bad performance on the MBE’s, even though I had no trouble passing the MPRE, which had no essay component.
Once I began working with law students, I started to think about this issue more. I wanted to explore why I had anxiety about the MBE. I taught both Professional Responsibility (“PR”) and Remedies. What I discovered is in most PR classes, instructors emphasize that MPRE questions are often focused on the details – sometimes testing concepts discussed in the comments following each ABA model rule. The focus is not on the “techniques” you are taught to use when answering MBE questions – like immediately rejecting two answers then focusing on what’s left. Instead, for the MPRE you are recalling the rules and focusing in on the exceptions or alternative ways to interpret those rules as suggested in the comments.
Conversely, in regular substantive law classes, the emphasis is on more general concepts and how those apply if you change the facts ever so slightly. Yes, you are dealing with rules and the nuances that might result in a different answer if a fact or two is tweaked, but you are still looking at the bigger picture of facts and not so much on the details of the rules.
When studying for the bar exam, the approach taken in a PR class might actually make you better prepared to face the MBE. Put more emphasis on learning the rules, and all the details underlying those rules. Understand the exceptions to those rules, and don’t get tricked by words that might have more relevance to another issue not really raised by the fact pattern. Learning the details of the rules will not only help you with the MBE’s but it will also have a positive impact on your essay writing by giving your rule presentations and applications more depth.
While you must know the rules and the details about the rules, including all the elements and exceptions, how you approach an MBE question should then mimic how you approach a traditional essay question. Recently, a podcast on this website reinforced this point for me. At this point you’re thinking, “but I have 200 questions to get through.” However, you are dealing with short bits of information and the answers have already been provided – you just have to work through a process to select the correct ones.
So, consider the following approach, which may be consistent with how you approach a traditional essay question:
- First look at the “call of the question.” Maybe the call asks whether a construction company will be held liable for the death of the 4-year-old child. Immediately your brain starts to focus on some different theories you have studied thoroughly – negligence, latent defects? At this point, you’ve probably excluded contracts, civil procedure, evidence, etc.
- With this new focus, now read the full question. Maybe the question tells you about a yard surrounded by a chain link fence where construction equipment and materials are kept. The fence has a broken gate that can be opened easily. The facts also tell you the yard is located on the other side of a park where children often play. OK, so latent defects are out, but negligence is still in play, and because a 4-year-old child is involved, you might be moving in the more specific direction of considering the theory of attractive nuisance.
- With this more specific theory in place, now look at the answers. One or two of the answers might be relevant to a regular discussion of negligence, but the other two might be more specific to the attractive nuisance theory. What if one of the answers mentions that the child was trespassing? How does that factor into the theory of attractive nuisance? Does that exclude a particular answer?
- Because your focus has now been narrowed down considerably, you can probably select the correct answer. At the very least, you have enough information to make an educated guess.
- Now move on to the next question and start all over. Do not go back to a previous question. As with essays, you must move on and clear your brain. If you keep thinking about the question or questions you already answered, your brain will never be able to fully focus on the new question.
Of course, this approach will require practice. While you might not be able to accomplish this in less than two minutes for each question right away, with practice you will eventually meet that goal. By considering the call of the question first, theories will be rejected immediately allowing your brain to focus quickly on the correct answer using the detailed knowledge you took the time to learn.