MBE Tricky Diction

MBE Tricky Diction

Tricky diction in answer choices.

Because the MBE is a speed-reading test as much as a test of substantive legal principles, the pressure to rush is incredible. That’s why practice beforehand is so important — so test takers know their pacing and are comfortable proceeding at a brisk, but careful, pace. 

Short fact patterns are tempting to speed through. 

But watch out for probably equally brief answer choices, and don’t be tempted into a “quick fix.” Be especially wary of “Best of” question calls, because the test is adept at providing at least two alluringly plausible answers and the taker must distinguish the best. Therefore, read all the answer choices on the dangerous “Best of” call.

Look at this example, brief and potentially deadly (italics were added for reasons that will become obvious):

A general contractor about to bid on a construction job with an owner invited a carpenter to bid on the carpentry work along with several others. The carpenter agreed to bid if the contractor would agree to give the carpenter the job provided that the carpenter’s bid was lowest and the contractor was awarded the main contract.
The contractor so agreed. The carpenter, expending time and money in preparing his bid, submitted the lowest carpentry bid of $100,000. The contractor used the carpenter’s bid in calculating his own bid, which was successful.Which of the following best supports the carpenter’s position that the contractor is obligated to award the carpentry subcontract to the carpenter?

(A) The carpenter incurred an economic detriment in preparing his bid.

(B) The carpenter gave consideration for the contractor’s conditional promise to award the carpentry subcontract to him.

(C) The contractor has an obligation to the owner to subcontract with the carpenter because the carpenter’s bid was used in calculating the contractor’s bid, and the carpenter is a third-party intended beneficiary of that obligation.

(D) The contractor has an implied duty to deal fairly and in good faith with all bidders whose bids the contractor used in calculating his main bid.

This question is a relatively simple contracts question requesting the slippery “best of” answer.

Answer choice A sounds so good right off the bat that many will choose it and move on; after all, more of those column-length fact patterns probably loom ahead.

Obviously, the phrase “economic detriment” sounds deceptively similar to “legal detriment.” 

Yes, reasonable people agree that an argument can be made that “economic detriment” and “legal detriment” mean essentially the same, but the MBE is not the time to argue the point. Stick to the pedantry of your MBE review, course outlines and other material, all of which should use the term “legal detriment.”  

This is a common “Tricky Diction” device used on the MBE. 

In this case, the trick is set up by the phrase “expending time and money in preparing his bid," which tempts the taker into immediately classifying this as a legal detriment issue. That's why reading the other answer choices is so important: doing so may jog the memory as to other potential issues, so takers are at least put on notice to consider other issues. 

And if takers go on to answer B, they may have their memory jogged as to another issue.

So don’t be lured into a premature finish by snapping up answer choice A: don't be lured into skipping the other answers because there may be a better choice.

Note the italicized language in the fact pattern: “agreed to” . . . “if” . . . “provided that” present classic conditional language. That sort of language is included in fact patterns for a reason and should set off alarm bells. Answer B specifically addresses the aspect of the conditional promise raised in the fact pattern.

That's a good general tip to keep in mind for the MBE: Always select the answer that uses the most specific language addressing specific points raised in the fact pattern.

Choice’s C and D are quickly eliminated because requesting bids generally in no way obligates the requesting party, unless some sort of contract already exists. 

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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.