The Human Condition

The Human Condition

The professions, including law, by their very nature, set themselves up as being elite. And of course that’s the point.

But professionals are human beings, and therefore they are also fallible, despite the image they try to project. Even the professionals preparing the various bar review courses and the MBE itself are human, and fallible. 

As an outsider, I don’t know the levels of editorial review provided by the MBE and the various companies preparing the review courses, practice exams and question banks, but I am sure that it is professional. Before completing law school and passing the California Bar Exam, I had a significant career in journalism and publishing, including 10 years as a staff editor at The New York Times Co. Even at The Times, mistakes still occur at the highest levels, and even after several levels of professional editorial review.

As at The Times, mistakes in copy are extremely rare in bar review materials, but they do occur, simply because of the human condition. No one is 100 percent, 100 percent of the time, and it’s unreasonable to expect anyone to be.

But for MBE review course takers, those rare errors can be the source of extreme frustrations during the review process: As students, our first impulse is to question ourselves: “What is it I missed?” Then reread and scour the text for what we missed. Then question ourselves again. And possibly again.

But sometimes we didn’t miss anything: there may simply have been a mistake in the text of the question.

Just recently, I was reading a set of practice questions from one of the top bar review courses and I encountered just such a rare error. The fact pattern described a construction contract problem, and the call of the question asked how much the plaintiff contractor would be entitled to recover from the client defendant. Three of the four answer choices cited various numerical values based on various contract damage formulas and a set contract price.

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However, the fact pattern never stated the contract price.

Did I miss it? I read the fact pattern again. I still did not see a contract price. There were no Arabic numerals — was it spelled out? I read it again. Still nothing.

I read that fact pattern more than six times to before convincing myself that the contract price had simply been inadvertently omitted. How is that possible? The human condition.

The previous question had also described a construction contract fact pattern. The contract price in that question was $3 million. Coincidentally, the answer choices in the contract question I just mentioned were all based on a contract price of $3 million.

I can’t remember such a thing happening when I took the MBE, but I do remember getting thrown off and having to circle back and reread. That rereading takes precious time. During the MBE, read briskly but confidently, and do not get bogged down and be so self-distrusting that you end up circling back and re-circling so that valuable time is wasted. 

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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.