270: How to Approach MBE Questions (w/Examples)

Welcome back to the Bar Exam Toolbox podcast. Today, we are talking about the MBE multiple-choice portion of the bar exam. And we are going to walk through real MBE questions together. Your Bar Exam Toolbox hosts are Alison Monahan and Lee Burgess, that's me. We're here to demystify the bar exam experience, so you can study effectively, stay sane, and hopefully pass and move on with your life.

I'll be honest, I would rather take the MBE than the essays, but I realize that's a rare approach.

A rare approach. So many people get frustrated by this part of the exam, and today we are going to talk a little bit about how to approach an MBE question, and then we're going to take some MBE questions.

Oh, I'm definitely out of practice on this, so that should be fun.

I know, right? So, first, as everyone listening likely already knows, the MBE is a one-day, 200-question multiple-choice test on seven subjects: Evidence, Con Law, Torts, Property, Criminal Law and Procedure, Contracts, and Civil Procedure. And this can be a tricky part of the test and one that frustrates a whole lot of test takers. We've been talking to people who've recently failed and we're talking a lot about the MBE right now.

Yeah, for sure.

Yeah, so I thought we would get started by talking a little bit about what we're seeing with folks who've struggled with the MBE and what some of our advice would be. And I think my first piece of advice is, think about the questions that you're using to practice, because not all questions are created equal.

Definitely. Yeah, this is also one of the things I always ask people about. And I do think it's fair to say, as we'll talk about a little later, I think some of the questions are shifting, but generally speaking, you want to be using licensed questions or questions based on licensed questions to prepare. So, if your test provider has written all of their own questions, I might start to think that was not my best plan.

Yes. And you might have to ask because they will not all, let's say, be that forthcoming about it.

And the reality is, there are only so many questions that are licensed. Everyone licenses them. We all license the same questions; we've licensed them. But I would say that's somewhere between 1500 and 2000 questions.

I don't even know if it's that much. I

Yeah, maybe not even. I

think it's not even that much. No.

But say between 1000 and 2000. Somewhere in there is how many questions they license. So, inevitably, people are writing their own if they're doing MBE prep in a big way. But you want to have as many questions as you can based on actual questions. Not ones that are 100% written by somebody who's like, "Ah, it seems like what they might ask." I don't know.

Yeah. And I think that as you're selecting your MBE provider - and we really do recommend that students check out tools that are MBE-specific, like AdaptiBar and UWorld - you want to remember that you can test these out. I talk about this a lot with folks. If you feel like your MBE prep hasn't been going well, most of these tools give free trials.

Oh yeah. And people always ask me, "Well, which one should I use?" I'm like, "Well, you should try them out and see." I can't tell you which one you're going to like best. Some have more visual explanations than others. Try it out, give it a shot. At that point, really, what do you have to lose? At least you're practicing questions.

Yeah, I know. So, that is something that I think gets lost a lot of the time, is that you can just see. You have some wisdom. You have sat for this test possibly before, so you have some experience from it.

I think there's a lot of value in having data. So, if you use AdaptiBar or UWorld, you're going to get data on how you're doing on certain types of questions. And so, when we look at a score report after the fact - particularly if you've taken it more than once - oftentimes there are patterns in how you're doing on different areas of the MBE. And I say, "Oh, is Property usually a week area for you? Oh yeah, it is."

Yeah, I agree. One of the other things we often talk to students about the MBE is, how many questions do you really have to do? And this might sound like a silly thing, but we hear all sorts of reports. I've heard, "I did 400 practice questions. Isn't that a lot?" And I'm like, "No, that is not."

Now, that's my favorite question. So people say, "Oh, how much practice did you do?" "I did a lot of MBE questions." "Okay, give me a rough estimate." "At least 400 or 500." That's not a lot.

That's not a lot. It's like, we're looking at thousands.

Yeah, 2000 to 3000 is what I would consider to be not even really a lot. That's what you need to be doing. If you get above 3000, I don't even know where you're finding those questions, but good for you, because that is a lot.

Yeah, so, I think that just sitting with thousands can be really intimidating for folks, but one of the things that you want to think about is how many weeks that you're studying. If you're studying for 10 weeks, which is the typical way to study for the bar exam, 2000 questions over 10 weeks isn't that much.

Yeah, 200 questions a week. You can break that down by day - that's about 30 questions a day, if you're doing them seven days a week. That's a decent amount of time, but you should be able to do that in what, like three hours?

Yeah, three hours, maybe four with review time.

Yeah, so half your day.

Yeah. Oh, but 30 questions is going to take an hour and change, because you can only take an hour and change for them, right? Am I doing this

right? Oh yeah, you're right. I've got my math off. Right, because you're doing 100 questions in three hours, so 30 questions should take you about an hour.

If you think that you're giving this part of the test a couple of hours a day maybe an hour to do the questions, an hour to give yourself feedback and evaluation that's fine. It's half of the test. It should be half of the day, so I think that should be reasonable. So, if it feels unreasonable, breaking it down by daily goals, I think is very helpful. The other thing that we see a lot of folks doing is, they will say things to me like, "I did thousands of them." And I'll say, "Great.

Oftentimes people tell me, "Oh, I'm guessing between two answers", which really should not happen, because you should have an answer in your head before you look at the answer choices, as we've discussed in detail and go over in detail in our Practice of the Week course, where we spent a lot of time going through MBE questions and realized there's always a correct answer. Anyway, people tell me like, "Oh, I get down to 'yes' or 'no', and then I'm guessing." It's like, "Great, you guessed right.

No. I have now studied the MBE, I studied for the bar, I can pretty much tell you what my weaknesses are. I know I tend to read too fast, I am very easily distracted by delicious looking distracting answer choices. I get very into the answer choices. And I think that goes back to when I used to tutor for the SATs and you could really use your answer choices to figure out more of the answer. I don't think that really serves you as much on the MBE, but those are hard habits to break.

These questions are very tricky, and they are extremely good at writing answers that look good. Even in preparation for this podcast, I read the first question we're getting ready to read, and I totally got it wrong, because I'd skipped a word. I was just skimming it really quickly, and I was like, "Oh yeah, totally clear on that." I'm like, "Oh, that is not right at all."

100%. Lastly, you mentioned it earlier, we're getting some interesting feedback from students about what they're seeing on the MBE, and we were having a bit of a chat about this on our tutor Slack channel, where we all talk to each other. So, do you want to share what we've been hearing from students who are our boots on the ground?

Yeah, super interesting. I remember last week I talked to two people back-to-back who told me almost word-for-word the same thing. And then our tutor, one of them brought it up a few days ago and I was like, "Oh yeah, I definitely have heard that." So, people might be aware the bar exam is changing - there's the NextGen Bar Exam, and it seems like they are starting to field-test some of these questions on the actual MBE, and these questions look different.

Yeah. The "not freak out part", I think, is the biggest piece here, is you've got to do your best and then move on.

It's really throwing people off, because they're like, "I have never seen anything like this before." And they tend to be a little more conceptual. So people said to me, "I didn't even know what law they were testing. I had no idea what they were even asking me.

Yeah, and statistically, one or two of these wacky questions, even if they are graded, are not going to make a huge difference in your score. And one of your jobs is to stay on task and do the best job that you can on the whole entire test. And so, you can't let one or two questions just tank your confidence or really unsettle you, because you're looking for this overall performance and you always have to hold that passing the MBE feels like failing any other test.

No, I remember the first day I took the MBE for the first bar exam I sat for. And like I said, I'm pretty good at standardized tests. I walked out of there and almost did not get back for the second day. I had to call my friend from law school and he had to give me a pep talk and he's like, "Look, that sucked. It sucked for everybody. It was terrible. You still have to go to day two."

I know. I think I've told the story on the podcast before, but I went up to my hotel room at lunch on the MBE day, and in California, it was three days when I sat for the California bar. And messaged my... I think it was a still a text message. Maybe I had an iPhone then. I don't think I even had an

iPhone. This was

pre-iPhone. No,

not

yet. Not yet, no. And I think I just said, "It's over, I failed." And so of course he called me, being quite nervous. And I said, "It was so bad. What am I going to do?" I think almost everyone has that feeling, because we're not used to taking tests where a successful score is basically failing.

Right. 70% is like a pretty solid MBE score.

Yeah. And most of us aren't going for 70% on things.

No. I mean, most of your life, if you got 70% on a test, that was not going to get you the A.

No, exactly. So, you do really have to play the mental part of the MBE, which I think is also really, really important. The last thing I wanted to mention is that one thing I've heard a few times is people who failed the MBE telling me that time management was not a problem. They're like, "It's not a problem, because I finished the test with time to spare." I was like, "But you didn't pass it. So then you went too fast, which is a separate time management problem."

If somebody tells me they end every session of the MBE with 20 to 30 minutes to spare, I wonder why.

Yeah, so, anyway, food for thought. Alright, I'm sure everyone is super excited to listen to us talk about real MBE questions. So, these questions are pulled from the free National Conference of Bar Examiners questions that are published online. We will link to the website on the show notes, so you can look them up yourself.

I'm ready. Do you want me to read the first one? I'll get started.

Just get started. Let's jump in.

Alright: "A daughter was appointed guardian of her elderly father following an adjudication of his mental incompetence. The father had experienced periods of dementia, during which he did not fully understand what he was doing. The father later contracted to purchase an automobile at a fair price from a seller who was unaware of the guardianship. At the time of the purchase, the father was lucid and fully understood the nature and purpose of the transaction.

I knew that. When I put this in there, I was like, "Alison's going to hate that I included this Contract Law question."

Honestly, "I'm like, you know what? Any of those answers seem like they could be right to me."

So, this was a short-answer type of a question. I think one of the things that is important to do with the MBE is always just think about what is the law that you need to know. So, before you start to spin out about the answer choices, you want to think about what is the law. And here, the law we're talking about is really about capacity. Did the father have the capacity to enter into a contract and have the contract be enforceable?

Right, that probably would have gotten me, because when you think about it the way you think about it, the answer is super clear the father's under guardianship, he can't contract. Alright, great: C) it's void. This is not a hard question, actually. I probably would have gotten distracted... So, my initial reaction was like, "Oh yeah, A) is great, I love that answer."

Yeah. But you can also see that if before you dove into those answer choices, if you just asked yourself, is this an enforceable contract or not? And you think about the guardianship and you're like, "There's no way this guy could have made this contract" already then you're into C) and D).

Exactly. And your answer is right there sitting on the page waiting for you to pick it and move on.

Because also D), which is "The contract is voidable at the option of the father" that still sounds like the father's allowed to make a choice, and the court has already determined that the father can't make choices anymore.

And also, the contract can't be voidable, because the contract doesn't exist.

Yeah, there's no contract. He didn't have the capacity to make the contract. Alright, so let's run through our answer choices. So, A) was not the right choice because incapacity is not about the seller; it's about the buyer. And the same issue shows up in B), and as you said, they say the same thing, so they just feel very squishy. It's not a good direction to go in. C) aligns with my rules, so I would hold C) as what I thought would be the right answer.

Right. He doesn't have the option to do

anything. No. One of the things that I think is important to think about here is that we didn't know that much law. It was just this idea that a guardianship means somebody doesn't have capacity, and then we applied it to the fact pattern. And I think that what so often gets lost on the multiple- choice is this idea that you can't practice until you have all this law, hardcore, memorized, all the nuances, because they're not always testing that much law.

Yeah, this was a classic MBE question, because it's actually a very easy question, but the answer choices make it seem really hard if you just focus on those.

Yep. Alright, let's move on to Property Law, which everybody loves too. I know.

"Two sisters own a single tract of land as tenants in common, each holding a one half interest. The younger sister entered into a three-year written lease with a tenant. The lease described with metes and bounds, a specified portion of the land, which consisted of about 40% of the total tract. The tenant went into sole possession of the leased portion of the land.

Right. So, yay Property Law!

Yes.

Another one that no one really loves, but again, I actually, having recently done a real estate transaction that was, I don't know, I can't remember. Not a tenancy in common. Anyway, basically, you've got to know the TIC rules here. So, Lee, what are those?

A tenancy in common is the default estate created when land is conveyed to two or more people, unless, a) express language states that the parties have a survivorship right, creating a joint tenancy; or b) if conveyed as husband and wife, creating a tenancy by the entirety. Each owner owns an undivided interest in the property and has the right to use and enjoy the entire property.

Ding, ding!

Ding, ding!

That should be triggering some bells in your head.

Yes. So, again, this is not complicated law, right? All you really have to remember is, two people buy land together, they become tenants in common and they both get to have a right to possess the land.

Yeah, the key is the undivided interest.

Exactly. So, when we go back to our fact pattern and we think about this as a short-answer question, given that little fact that came out of our outline, who's going to win here? Because someone's being excluded, and I think it's the older sister, and she's one of the tenants in common, and so it seems like she's going to probably win this one.

Yeah, exactly. So basically, if you remember the basic rule around a tenancy in common, which is not super complicated - again, you should be thinking, "Huh, I don't think the younger sister is allowed to do that." And why? So, that gets us into the realm of A) or B), but why is she not allowed to do that? And it's because she cannot unilaterally partition that land, because they have an undivided interest. It's literally there in the definition.

Yep, so can't do it unless older sister wants to do it. And even if you don't really know that rule, option A) is "The older sister, because the younger sister cannot unilaterally partition the land without the older sister's consent." So maybe you have a moment where you're like, "I don't know if she can give consent, so I'm going to think about that one."

They actually tell you in answer choice B), so maybe that should trigger, "Undivided. Is she trying to divide it? I think she's trying to divide it. Oh, okay. Not allowed. Done."

Done, right? So that's where you really get into option A) - "The older sister, because the younger sister cannot unilaterally partition the land without the older sister's consent", because they are tenants in common, which means they have the same rights to the land.

They each have a right to undivided possession, basically.

Yep. So again, what struck me about this question was, the rule was super short when I went to go look it up. There wasn't that much law, again. See, we get suckered into thinking that it's all about this nuance of the law, but if you only remembered the part that they own an undivided interest and they have the right to use and enjoy the entire property, that's all the law you needed to know. I

Which frankly, is, I think, pretty much the case with all joint tenancies.

I think so.

Anyway, don't trust us on that.

I didn't refresh my recollection on that law, so I won't be quoting that law.

But anyway, point being, the rule is very simple, actually, and you just have to think about it and think through it logically and apply it.

Yes. Now, I will say I would like to call out our option D), which was the one that said "fee simple interest", which was really out of left field. And this is something that they do sometimes, is they just throw in a legal term so you can get distracted by a term of art, because we all remember the fee simple absolute - that means you have absolute right to the property. And so, some people might say, "Oh, I have no idea what the answer is, but a fee simple is important."

This is the example of the answer choice that my old Physics professor in high school used to describe as "true, but irrelevant".

Totally.

It is actually the case that yes, her interest is necessarily less than fee simple, but that has nothing to do with anything.

Nothing to do with it, I know. So it's also really important to just not get distracted by rules that you may know, because you're like, "I know what a fee simple is, so I'm going to choose answer D)." "I'm to go

with that one." Yeah, our tests would be back with "TBI" written beside of things - true, but irrelevant.

I like that one. Alright, do you want to pick up number three?

Sure: "A state law prohibits any barbershop licensed by the state from displaying posters in support of any current candidate for public office, or distributing any campaign literature in support of such a candidate. No other kinds of posters or literature are subject to this prohibition, nor are any other types of commercial establishments in the state subject to similar prohibitions. Is this law constitutional?" Alrighty.

Your gut should be like, "Probably not." Hell

no. But we've got to figure out why. I was immediately like, "Nope, but I don't know why. Let me see what they're giving me." "A) No, because it treats barbershops differently from other commercial establishments. B) No, because it imposes a restriction on the content or subject matter of speech in the absence of any evidence that such a restriction is necessary to serve a compelling state interest.

First Amendment.

This is an example of why you really need to understand and know by heart the different levels of scrutiny.

Yes. And I also think around speech like this, you really want to always think about content-based and content-neutral, because when I read this fact pattern, the first thing that jumps out to me is, it sounds like they're restricting the content of the speech.

So, they're doing two things, right? Because there's the content-based restriction, and then there's also this kind of red herring of that the barber shops are being treated differently than something like a coffee shop.

But again, you can also see that this is the second time that a red herring has showed up at the end of the fact pattern, like with our Dad example, right? Because the whole thing about the dad felt great the day that he signed the contract - that fact was also at the end of the fact pattern. So, when you do lots of these questions, you start to see the patterns of how they build them and where some of these red herrings might be.

We don't like that.

We don't like that, generally.

That's what gets us to the, "Um, definitely not legal."

Right, right. And so, when we really don't like that, they're going to be subject to strict scrutiny, which we remember is the strictest of the scrutinies. That's really the worst explanation. I actually used to teach Con Law study groups. Anyway, this is the strictest of the scrutinies. It is the highest level of protection, basically.

No. Obviously, we don't have a ton of facts here, but nothing in what they have provided is showing me that it's particularly narrowly tailored, that it is to achieve a compelling government interest, or that it's the least restrictive mean. So, if we don't see any of that in this very short hypo, I'm going to guess it is not going to meet the strict scrutiny requirement.

100%. So then we know that two of the answer choices say that it is not constitutional. So, option A) says "No, because it treats barbershops differently from other commercial establishments." That's not good either.

Yeah, I'm thinking, "Okay, that's not great, but would I allow this regulation to be constitutional in a coffee shop? No. So it doesn't really matter."

Yeah, exactly. That's not really what the core of the problem here is. And if we remember from all sorts of equal protection and arguments about one class of groups being treated by others differently, I don't think barbershops are a protected class. If you're always wanting the analysis that's going to get you the highest level of scrutiny, barbershops, unless I'm really rusty on my Con Law, do not get any sort of special protections.

I don't think so. And I think one of the key things here is that this is political speech. If you remember nothing else about the U.S. Constitution, you should remember that it is pretty protective of political speech.

Yeah. Alright, so then we go to option B) - "no, because it imposes a restriction on the content" - ding, ding, ding! - "or subject matter of the speech in absence of any evidence that such a restriction is necessary to serve a compelling state interest."

Exactly. I think the Con Law stuff that trips people up sometimes is remembering those levels of scrutiny and what they mean. But honestly, that's the easy part of Con Law. Once you memorize, those show up over and over again on the MBE, and they are not that hard.

Yep, it's totally true. And I think, especially when you start to remember examples of what is strict scrutiny, and what is intermediate scrutiny, and what is rational basis, it also helps with this. Even my Con Law has a tiny bit of rust on it, but I can still tell you that rule for strict scrutiny, but also I have that gut reaction of, "This is content-based speech restrictions, and that's not going to be good."

I had not even read this question before we started this recording, and my immediate reaction as I'm reading it out loud is my brain is going, "Not constitutional. Definitely not. Cannot do that. Cannot do that."

No. And I think that's one of the reasons why you want to do a lot of practice, because the more of these questions you see, the more it gets ingrained into you that you kind of have that gut reaction, because you get familiar with these fact patterns. They can only get so creative. And then maybe the next fact pattern that's testing similar rules, it's a content-neutral restriction. And then that may have a different analysis.

And then, honestly, you can barely even pay attention to C) and D), because this is obviously not constitutional. But even then, I guess maybe some people will get tripped up by the licensed

"Oh, it is a license. Okay, the state can do whatever it wants." No, that's not true. That is not the law.

No, that's not a heavily tested area of the law. It's not what this question's about. That's the thing, is, sometimes you have to take a step back and be like, "What is this question about? This question is about

content-based speech restrictions." Political speech. Political content speech. Political - highest level. If you remember nothing else - political speech, most protected.

Yes, exactly. So, I think sometimes you can just go with your gut and say, "What is this question about?" And that's going to lead you to the answer. So, with that, we're running low on time, but boy, wasn't that fun. It was so fun.

So fun. Some more MBA questions on law I haven't looked at for a long time.

Totally. So, if you enjoyed walking through questions with us, you can check out our Practice of the Week program, which is linked to on our Bar Exam Toolbox website, which does something similar. It walks you through MBE questions while giving you the law, and really showing you how to do the analysis piece, which I think is the part that most people really need to work on.

The other thing I like about POW, which we did, is we include a question for you to practice on right after you watch us go through a question on similar law. So, hopefully you can see us apply it, and then do it yourself and get that question right and start building some confidence, which I think is a really big piece of the MBE - just believing you actually can do this. And if nothing else, I hope this podcast today has shown you that a lot of this law is not actually that complicated.

I know. It just feels really complicated, because the test itself is

hard. so

itself is hard.

And there's so much law. I don't think you picked these because they had easy rules. I think a lot of them are actually just easy rules.

Yeah. It's just the way that they're implemented into these questions becomes a challenge.

And the amount, the volume of rules. If you had to remember 10, no big deal. If you have to remember hundreds, it becomes a lot harder to keep everything straight and remember exactly what those levels of scrutiny are or what exactly a joint tenancy versus a tenancy in common. But this is all the stuff that you've got to learn.

Yeah.

Alright, everybody, thanks for joining us. We'll talk soon.

And with that, we're out of time. If you enjoyed this episode of the Bar Exam Toolbox podcast, please take a second to leave a review and rating on your favorite listening app. We'd really appreciate it. And be sure to subscribe so you don’t miss anything. If you have any questions or comments, please don't hesitate to reach out to Lee or Alison at [email protected] or [email protected]. Or you can always contact us via our website contact form at BarExamToolbox.com.