Multi.

State.

Bar.

Exam.

Four words that strike fear into every graduating law school student.

OK, technically three words, because “multi-state” is really a single compound. But that’s a great starting point for this blog because there is a significant part of the MBE that is all about semantics, but more on that later.

Anyway, those words, or rather the impending exam, should strike fear in to the hearts of prospective takers.

200 questions — 100 questions in the morning, 100 in the afternoon, over two sessions of what each can seem rather like a breathless three hours. (I never understood how some takers had the confidence to get up and go to the restroom clear across the convention center floor — at least 10 minutes gone! I just held it in fear!)

The MBE is all the terror students hear: A speed-reading test where takers are expected to note the facts and keep them organized, spot the nuances in tricky — and what sometimes seems down-right unfairly deceptive — diction, and then draw fine-line distinctions in points of law in only 1.8 minutes per question. (Answer EVERY one: no points off for wrong answers!)

I sat for the MBE in February 2011 as part of the three-day California Bar Exam. There, the day-long MBE is sandwiched between Day 1 and Day 3, each of which consists of three essays in the morning and a three-hour afternoon Practical Test. I came out crushed, but knowing I would be vastly better prepared for what to expect next time. So, I gave myself a two-week break before going back to studying in mid-March for the July exam.

In late May 2011, I received the news that I had passed on the first sitting! (While I checked the bar’s Web site the day the list was posted, I wandered about in skeptical shock for two weeks until the hardcopy confirmation arrived by post, opening with “Dear Counselor,” and only then did I feel sure!)

Sometime later, I was on a road trip and ran out of reading, but found some leftover MBE practice questions in my knapsack. I quickly discovered that outside the pressure chamber of the Bar Exam, I performed markedly better as a percentage. That’s not at all unusual given the time limitations and other exam conditions. The weird thing   — or sick thing, depending on the point of view  — was that I sort of enjoyed answering them for fun, now that my entire future wasn’t hanging in the balance.

Since then, in reading hordes of practice questions and dissecting them at leisure, I began to see the patterns that I couldn’t see during the crush and anxiety of my bar review course. Back then I was too busy with “practice, practice, practice” — 30 questions at a time… 50 at a time… 100 at a time.

I absolutely agree with the conventional wisdom of bar review courses to “practice, practice, practice” to get the timing down. And that did help with my speed reading, but not so much substantive learning. Because in waiting to read the answers hours later, I’d have forgotten the facts, not to mention the tricky diction in the question call or answers that caused me to choose the wrong answer and be frustrated.

I think test prep benefits from using both speed trials and more painstaking, thoughtful dissection — slowly going over the fact patterns, examining the call, and the answer choices, and then immediately comparing that to the “correct” answer analysis: Question-answer, question-answer. You begin to see how the questions alter the diction between facts and answers, reverse phrasings and throw in endless distracters in both facts and answer choices.

“Tricks,” “traps,” “deceptions” — pick the term: Becoming familiar with the methods of the MBE questions would have saved me much frustration in my hours spent in preparation and the anxiety at the actual MBE.

I doubt any amount of preparation will eliminate all frustration and anxiety, but familiarity breeds confidence (just don’t let it breed overconfidence!). And so in this blog we will examine practice MBE questions and hopefully help prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

And the Word Is?

Let's start with an example with a type that ALWAYS irritated and frustrated me: the change in diction from the fact pattern to the answer choices. This example from one of the top review courses. I’ve added the italics for reasons that will become obvious.

A large farming concern in the Midwest contracted with a pet food manufacturer to deliver 100 tons of processed cornmeal no later than November 15. The purchase price and delivery terms were specified in the contract, which permitted partial shipments. On November 1, the farming concern delivered 50 tons of cornmeal to the pet food manufacturer with the notification that the balance would be shipped by November 15. The pet food manufacturer rejected the shipment because the written documentation accompanying the shipment did not establish that the cornmeal came from an approved source, as required by the contract. The farming concern responded to this rejection by conceding that the shipment did not conform to the contract and promising to deliver all 100 tons of cornmeal by November 15 with proper documentation.

Which of the following best expresses the pet food manufacturer’s options?

1. The pet food manufacturer may notify the farming concern that the entire contract is terminated and that it is going to obtain the 100 tons of cornmeal from another source.
2. The pet food manufacturer may notify the farming concern that the contract is terminated as to the 50 tons of cornmeal that was shipped and did not conform to the contract, but must accept the additional 50 tons when it is shipped if it conforms to the contract.
3. The pet food manufacturer must allow the farming concern a commercially reasonable time to ship cornmeal that conforms to the contract before it can terminate the contract.
4.  The pet food manufacturer must allow the farming concern until November 15 to ship cornmeal that conforms to the contract before it can terminate the contract.

The correct answer, according to the practice guide, is D. 

The problem is the confusion caused by the change in specific diction of the contract terms. The fact pattern states that the contract calls for the farming concern “TO DELIVER” by November 15. Confusion starts to creep in when we learn that the first partial delivery included a note stating the remainder will be “SHIPPED BY” November 15. Then, further muddle: the “correct” answer recasts the term, changing “to deliver” to “TO SHIP” by November 15.

Confused? Naturally, that’s the objective!

Keep in mind that the legal principle expressed in answer choice D is fine: that one party to a contract has until the contract performance date to fulfill his obligation. But the terms “deliver” and “ship” are certainly not synonymous and would have different contractual obligations and consequences. The use of different terms is explicable only as either a copy error or as an intentional device to confuse.

Seem unfair? This is the MBE — Get used to it!

My takeaway on this one is to be on guard, don’t overanalyze or get bogged down in semantics, and be able to step back and look at the principle being expressed.

Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.