The Multistate Bar Exam, one of the most daunting portions of the bar, contains a total of 200 questions, 175 of which are scored. But by breaking down the study topics into manageable pieces and understanding the number of questions asked in each category, you can streamline your bar review process. In this post, we’ll talk about how you can approach Torts MBE questions to boost your score.
Of the 175 scored questions, 25 of those questions are in Torts. Within Torts, the question breakdown is the following:
- Negligence: 12-13 questions
- Intentional Torts: 4-5 questions
- Strict Liability and Products Liability: 4-5 questions
- Other Torts: 4-5 questions
By reviewing the question breakdown, you get an idea of where you should spend the bulk of your time studying. In Torts, it’s evident that you have to be able to tackle the negligence questions; if you can, you’ll see a solid increase in your MBE score.
Let’s look at your overarching approach for the Torts MBE questions, followed by specifics on how to study for and handle the negligence questions.
Your Overarching Torts MBE Approach
The Torts MBE questions often give us long (albeit at times entertaining) fact patterns. But no matter how lengthy or convoluted the facts, a methodical, step-by-step approach will help you stay calm and navigate the question.
Remember that with Torts MBE questions, as with all MBE questions, you should analyze the question in the same way you would an essay. First, pinpoint the issue or issues at play in the question. Luckily, In Torts questions, the call of the question may do the heavily lifting for you and identify the issue and general rule at play. For instance, Torts MBE questions have asked:
- In a nuisance action by the homeowner against the law school, will the homeowner be likely to prevail?
- If the airline sues the delivery service for tortious interference with contract, will the airline prevail?
Once you’ve identified the issues involved, pinpoint the legal rules that govern that issue. In the examples above, it’s made even easier for you because the general rule is identified.
On the other hand, many Torts questions ask a very general question (for example, “Will the Plaintiff prevail?”). In questions like this, identifying the correct rule and the nuance within the applicable rule being tested can at times be the most difficult part. Because elements of many Torts claims are simple, the bar examiners have to test you with questions that go beyond a simple restatement of elements. So when you identify the governing rules, be sure to recall any nuances that may exist, or any additional issues like affirmative defenses that may be involved.
Next, do what law school and bar prep has consistently prepared you to do: apply the rule to the facts. Reach a conclusion on your own from the analysis you perform, and remember to think about exactly why you reached your conclusion. On MBE questions, including in Torts questions, the “why” or “because” in the answer choices will often make all the difference in you getting an answer correct.
Tackling the Negligence Questions
From the breakdown of the Torts questions that you’ll see on exam day, you know that you have to be able to answer the negligence questions. Negligence questions fall into the following buckets: duty, breach, causation, damages, and affirmative defenses. Let’s take a look at each in turn.
Duty questions you’ll encounter on the MBE will include failure to act, unforeseeable plaintiffs, and key issues in a person’s obligations to control the conduct of third parties. For questions covering breach, it’ll be critical for you to be able to identify the appropriate standard of care. The bar examiners particularly love questions about landowners’ duties to entrants on land.
Causation questions cover the myriad issues you encountered during your One L Torts class. To correctly answer negligence questions that turn on causation, you’ll need to know the rules surrounding harms that are traceable to multiple causes, apportionment of liability among several tortfeasors, and but for causation.
Last but not least of the elements for a negligence cause of action is damages. Remember that to sustain a negligence cause of action, the Plaintiff has to suffer some harm! Again, it’s knowing these nuances in Torts questions that make all the difference in the answer choice that you’ll ultimately select.
Finally, affirmative defenses are very easy to overlook when you’ve already spent valuable time running through your negligence analysis. But don’t forget to think about affirmative defenses; the existence of an affirmative defense will completely change the answer choice you select. The affirmative defenses that you need to memorize here include contributory negligence, comparative negligence, and assumption of the risk. When you’re going over contributory and comparative negligence, be sure to make note of the majority and minority rules (sometimes the bar examiners like to get specific and make you apply the prevailing rule on an issue!).
By applying—and practicing—your overarching strategy on Torts MBE questions, you’ll be sure to pick up extra points on exam day. And whatever you do, don’t forget that negligence questions make up a full ½ of all Torts questions—that’s 1/14 of all questions you’ll see on the exam! Take the time to learn those rules and you’ll see your score improve.
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