MBE Audio Crash Course
TM
Complete Test Prep and Review For The NCBE Multistate Bar Examination
Disclaimer This guide is designed to assist you in studying for and improving your score on the Multistate Bar Exam. The following pages will provide you with the tools that you need to succeed, by overviewing the point-getting techniques and substantive rules of law that the MBE most frequently tests. That said, the following pages are not a prediction of what will be asked on the upcoming MBE. No warranty or guarantee is made here as to what rules of law the National Conference of Bar Examiners will test on the upcoming Uniform Bar Exam/Multistate Essay Exam or any future examinations. Similarly, no warranty or guarantee is made here that you will pass the upcoming bar exam or any future bar examination. As such, under no circumstances shall we be liable for any losses or damages whatsoever, including direct, indirect, incidental and consequential damages, resulting from the use of this AudioLearn Guide, whether based on contract, tort, or any other legal theory. This AudioLearn Guide and the materials contained herein are provided “as is,” and there are no representations or warranties, express or implied, with respect to the use of this AudioLearn Guide, or its contents. The content of this AudioLearn Guide is not intended to and does not constitute legal advice, nor is it intended to establish any attorney-client relationship. Reading beyond this point constitutes your acceptance of the terms above.
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TABLE OF CONTENTS Part One: Introduction ............................................................................................................ 1 Chapter One: Introduction to this Audio Crash Course ........................................................... 3 Chapter Two: Introduction to the MBE ................................................................................... 5 Chapter Three: Introduction to Scoring on the MBE ............................................................... 9 Part Two: Substantive Chapters ............................................................................................ 13 Chapter Four: Dissecting An MBE Question .......................................................................... 15 Chapter Five: Mastering the Process of Elimination .............................................................. 25 Chapter Six: Torts Workshop ................................................................................................. 33 Chapter Six: Key Takeaways.................................................................................................... 61 Chapter Seven: Contract Law Workshop ............................................................................... 71 Chapter Eight: Civil Procedure Workshop ............................................................................ 109 Chapter Nine: Criminal Procedure Workshop ..................................................................... 141 Chapter Ten: Criminal Law Workshop .................................................................................. 177 Chapter Eleven: Constitutional Law Workshop .................................................................... 215 Chapter Twelve: Evidence Workshop .................................................................................. 255 Chapter Thirteen: Real Property Workshop ......................................................................... 285 Part Three: Conclusion ........................................................................................................ 317 Chapter Fourteen: Practice Test ........................................................................................... 319
PART ONE: INTRODUCTION
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CHAPTER ONE: INTRODUCTION TO THIS AUDIO CRASH COURSE There is no shortage of bar exam books on the marketplace, because the bar exam is a multimillion dollar industry, and that industry happens to revolve around a highly standardized and predictable test. But with even just a cursory review of the materials, you’ll find a stunning lack of diversity among the bar exam books on the marketplace. Just about every MBE book out there will review, with enormous depth, what the MBE is and how it is graded, then offer a few pages of generic bar-taking advice, and then throw hundreds and hundreds of practice exams at you. This is not that kind of MBE guide. Instead, what we seek to accomplish with this study guide is to truly dissect the core of what makes the MBE tick, then provide you with a serious, deep dive into how to squeeze the most amount of points out of the questions you get on Exam Day. That is why this study guide will focus less on burying you under a mountain of practice questions, and focus much more on discussing specific test-taking techniques and giving you ample opportunity to practice recognizing and responding to the situations that call for such techniques. To that end, this study guide is structured as follows: First, we will introduce you to the MBE: what topics it tests, how it tests them, where the test itself comes from, and what makes it “hard.” We will also cover how to read MBE questions, and how to determine what they are asking of you. Second, we will explore a number of proven techniques that can help you dissect any given question in any area of law, then we will explore topic-specific techniques. Test-taking 3
advice will only be useful to you if you have a firm understanding of the rules of law in each area of law, after all. But make no mistake: we are not dealing with dry, encyclopedic outlines here. Instead, we will review the areas of law with an eye toward what you will actually encounter on Exam Day, so we will show you the most commonly tested rules in action instead of simply reviewing the rules in the abstract. Third, this study guide ends with a summary of what you’ve learned, as well as a 100question practice test with sample answers and a grading rubric. Specifically, here is a chapter-by-chapter breakdown of our study guide: Chapter One, of course, is the following introduction. Chapter Two explores how the Multistate Bar Exam is structured, what is it about this structure that makes it difficult, and what its goals are for you. Keeping all of this in mind will help you properly prepare for it, since you need to know not only the information being tested, but also the kind of test that you can expect. Chapter Three focuses on the most important goal you can have on the MBE, which is scoring points. This chapter discusses how points are scored, how grading works, and what the average range of scores are. Chapter Four breaks apart the typical MBE question into its three parts, and explains how to analyze each part on its own in order to read between the lines and figure out what exactly the examiners are looking for. Chapter Five explores the process of elimination. While we do not recommend relying on this process, which is guesswork at best, we recognize that certain questions leave you with no choice, so you should know how to do it well. The remaining chapters are workshops that delve into the black letter law of each topic on the exam, the most frequently tested topics, and the most tested rules. Each chapter is followed by a series of key takeaways. The final chapter is a simulated MBE. Let’s begin!
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CHAPTER TWO: INTRODUCTION TO THE MBE A. DESCRIPTION OF THE MBE The Multistate Bar Examination (MBE) is a standardized test of two hundred multiplechoice questions, administered over the course of six hours with a lunch break in between. The MBE’s first administration took place in 1972, and it is now administered in every U.S. state except Louisiana. Because this test is highly standardized and administered across the United States, many states will accept a transfer of MBE scores from another bar exam jurisdiction, thus “waiving in” to that state instead of having to retake the MBE.
B. MAKEUP OF THE MBE The MBE is administered on the last Wednesday of July and February in every MBE state, except for Delaware and North Dakota. The questions test seven areas of law (civil procedure, constitutional law, contracts, criminal law and procedure, evidence, real property, and torts), based almost entirely upon common law principles. The MBE tests twenty-five questions in each area of law, and reserves the remaining twenty-five questions for experimental, non-graded questions that are being tested for inclusion into future exams.
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Areas of Law
Number of Questions
Experimental Questions
Civil Procedure
25 / 200
25 / 200 (Total)
Constitutional Law
25 / 200
25 / 200 (Total)
Contracts
25 / 200
25 / 200 (Total)
Criminal Law/Procedure
25 / 200
25 / 200 (Total)
Evidence
25 / 200
25 / 200 (Total)
Real Property
25 / 200
25 / 200 (Total)
Torts
25 / 200
25 / 200 (Total)
Figure 1
If you look at Figure 1 in your follow-along PDF guide, you will see the areas of law and 25 questions per area of law. These questions are not broken up into their respective sections; instead, they appear in no particular order. Each of these areas of law have long been a part of the MBE, except for civil procedure, which first appeared on the MBE in February 2015. No changes to the testable areas of law appear imminent, but it would be in your best interest to verify this on the National Conference of Bar Examiners’ website.
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C. DIFFICULTY OF THE MBE The MBE is widely considered to be the most difficult legal exam you can take, for three reasons: breadth, depth, and complexity. First, the sheer size of the exam is difficult to cope with unless you practice, because answering two hundred multiple-choice questions over the course of six hours can take a heavy toll on anyone who has not conditioned themselves appropriately. Second, the scope of the exam is difficult because as you take the exam, you will be jumping from one area of law to another, unpredictably. Many questions will force you to jump from one area to another within the same question. For instance, a question may begin with a criminal law scenario, then venture into constitutional law territory, then end with an evidence law question about admissibility. Criminal law, criminal procedure, constitutional law, and evidence are all areas of law that allow for overlap and abrupt shifts in focus. Third, you will encounter precious few questions that merely ask you to recognize a rule of law and point it out in the answer options. Most questions involve far more mental work, as they require you to recognize an interplay of several rules of law, then identify the key rule of law, then determine whether an exception to that rule applies – and if an exception does apply, you may need to determine if this scenario calls for an exception to that exception. The answer choices will also give you no easy way out, as they are designed to confuse you with answers that are convincing but technically wrong.
D. GOAL OF THE MBE Don’t talk yourself into believing that you can self-intuitively navigate around this test. Nothing short of brute memorization of rules and techniques will help you pass. This is because the MBE is not meant to test your lawyering skills. After all, that is what the Multistate Performance Test does.
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Instead, the MBE is the state bar examiners’ ultimate gatekeeper, in that it cuts down on attorney admissions. With around half of all bar-takers failing the exam, no matter where the exam is given, the MBE keeps out anyone who is not fully committed to the practice of law, or at least anyone who does not have the time and/or resources to spend on learning endless rules of law, exceptions, and exceptions to the exceptions. That is where this study guide should come into the equation. With this one study aid, you will have all the resources you need to learn how to succeed on the MBE, both in terms of test-taking techniques and in terms of knowing the rules of law that have been most commonly tested.
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CHAPTER THREE: INTRODUCTION TO SCORING ON THE MBE A. HOW SCORING WORKS To score well on the MBE, you have to understand how scoring works on the MBE. On the MBE, you will see two hundred questions total, with one hundred and seventy-five questions being graded and the remaining twenty-five questions being ungraded and instead evaluated for use on future exams. All graded questions are worth one point, meaning that the longest, most difficult to answer questions are worth nothing more than the easiest, quickest to answer questions. As much as you probably want to get a perfect score, your main focus should be on finishing the exam with time to spare. This means that you will have to engage in some triage from time to time. If and when you inevitably run across a question that stupefies you, put something down as an answer and circle the question so you know to come back to it, if you have time to do so. With every question worth an equal amount of points, your best bet is to sacrifice precision and accuracy for speed, because you will snatch up many points from easy answers by the time you figure out the right answer to a hard question. (And if a question is hard because it’s testing a rule of law that you are unfamiliar with, then no amount of time spent on the answer choices is going to give you a clear right answer anyway). You can earn points by getting questions right, but you lose no points for getting an answer wrong. As such, you should always put something down as an answer, no matter how uncertain you are or how rushed your reasoning has to be.
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There is no reason to ever leave an answer choice blank – just put something, anything, and you’ll have a twenty-five percent chance of getting it right instead of a zero percent chance of getting it right.
B. PASSING SCORES – OVERALL Technically, there is no passing MBE score. You simply have one hundred and seventyfive questions that can be answered correctly, and a number out of one hundred and seventyfive. There are certainly scores that are so low that you couldn’t possibly pass the exam, but passing the MBE only accounts for one out of several bar exam tests. You also have to account for the state law essays of the Multistate Essay Examination, as well as the practical skills Multistate Performance. The MEE and MPT are typically graded as a combined score, which is then combined with the MBE score to give you a final score. Most states require a score of two hundred and sixty to pass, while many of the bigger states require a score closer to two hundred and seventy. At the scores of two hundred and eighty and two hundred and seventy-six, respectively, Alaska and Colorado require the highest scores of any state, as of this writing.
C. PASSING SCORES - MBE Generally speaking, over the past few years, most MBE test-takers have received a score of one hundred and thirty correct answers out of one hundred and seventy-five possible answers. Notice that that is technically a terrible score; it’s just a seventy percent. That would be a C- in most settings! But the bar exam is simply a pass/fail exam, and your score will not be revealed unless you receive one of the highest scores in your test-taking group. That said, it is safe to say that a score of at least one hundred and thirty-five will put you on track to pass the exam. With a score of one hundred and thirty-five, and an equally “somewhat above-average” score of one hundred and thirty-five on your combined MEE and
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MPT tests, you should be able to take the attorney’s oath for just about any state other than Alaska and Colorado. A score of one hundred and forty on both the MBE and MEE / MPT sections would let you into any state, as of this writing. The most realistic high score that you can attain, on the MBE and MEE / MPT sections, would be a score that falls between one hundred and fort and one hundred and fifty. The top quarter of all test-takers consistently manage to earn these scores, so they are within reach if you learn the rules of law and their exceptions, and learn how to squeeze points out of tricky answers. But the perfect score is truly elusive, with only half a percentage of test-takers to come anywhere near it – and keep in mind, even those test-takers are generally seasoned veterans of the UBE who have taken the test several times and have studied it for years. When you compare yourself to those elite test-takers and realize that you’ve been studying for just a few months and are taking the test for either the first or second time, you would come to appreciate that a score of one hundred and fifty is as high as you should strive for – and be proud of yourself if you achieve it! You can end up failing the test completely if you stress yourself out over the unrealistic goal of earning a perfect score.
2017 Statistics
February
July
Total
Number of Examinees
22,269
46,627
68,896
Mean Scaled Score
134.1
141.7
139.2
Standard Deviation
14.7
16.8
16.5
Maximum Score
187.9
190.3
190.3
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Minimum Score
66.2
53.4
53.4
Median Score
133.9
142.6
139.6
Figure 2
If you look at Figure 2 in your follow-along PDF guide, you will see the 2017 bar examination statistics in the number of examinees, the mean scaled score, standard deviation, maximum score, minimum score, and median score.
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