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.

.

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.

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.

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.