Struggling with the MBE? Don’t Gloss Over These Tips

For the MBE, I often see bar takers trying to seek endless questions and debating minutiae like AdaptiBar vs UWorld.

Instead, you want to know the rules cold. This doesn’t just mean memorizing the general rule. It means knowing sub-issues like the elements, exceptions, possible defenses, and other nuances so you can hone in on and eliminate choices better.

The more nuanced your understanding of the rules, the clearer the choices, and the fewer ultimate 50/50 decisions you’ll be forced to make.

A relatively general understanding of the law can be enough for essays (as they are more about issue identification). The MBE is more focused on testing the specific ins and outs of the rules—and of course, knowing how to use those rules.

That’s how you could be one of those bar takers who are stellar at the written portion (essays and PT) but still struggle with the MBE.

But we can address this!

If you’re struggling with the MBE, consider these approaches:

These are short but essential tips if you want to succeed on the MBE.

Understand the elements of a rule and their nuances

Let’s look at an example:

“A landlord decided to destroy his dilapidated building to collect insurance money. He hired a man to burn down the building. The man broke into the building and carefully searched it to make sure no one was inside. But the man failed to see a homeless person sleeping in an office closet.

The man started a fire. The building was destroyed, and the homeless person died from burns a week later. Two days later, the landlord filed an insurance claim stating that he had no information about the cause of the fire.

The landlord is charged with felony murder of the homeless person. If the landlord is found guilty, is it because the death of the homeless person occurred in connection with which felony?”

Your choices: 

1. Arson
2. Burglary
3. Conspiracy
4. Fraud

What do you think?

First of all, for felony murder, only two of these choices can work: arson and burglary. Conspiracy and fraud are not “inherently dangerous felonies” (BARRK: burglary, arson, robbery, rape, kidnapping).

Under common law, arson is the malicious burning of a dwelling (modernly, any structure) possessed by another.

You might wonder, how can it be arson if the landlord owns the property?

Note that the dwelling of another is based on possession. Possession is not necessarily based on ownership. I know it’s a bit weird to think that a homeless person could possess a building, but possession is simply physical control or occupancy of a property. The homeless person was sleeping in the building and thus in possession. The landlord has legal title and ownership and possibly possession of the building, but the homeless person’s occupancy of the building met the requirement for it to be a “dwelling of another.”

What about burglary? The death wasn’t caused by the act of burglary itself but rather by the fire resulting from the arson. Arson is the felony that serves as the basis for felony murder.

What about conspiracy? Even if it seems like conspiracy is plausible since the landlord and the man intended to burn down the building, it is not one of the inherently dangerous felonies required for felony murder as noted above.

The answer is A. Keys to keep in mind here:

• Felony murder requires causation in connection to an inherently dangerous felony (BARRK).
• Of the choices, only burglary and arson are inherently dangerous felonies.
• It is arson if the building is controlled by another or has an occupant (possession is enough, not necessarily an owner).

Without knowing these specific keys, you might have chosen burglary or conspiracy. If the question turned on whether there was arson, you may have thought it wasn’t arson if you weren’t aware that possession was enough.

Or maybe you thought it was too obvious and started overthinking :)

Another example: Tort battery has multiple elements, one of which is “harmful or offensive contact with P’s person.”

On the MBE, you may want to recall:

(i) P’s person includes P himself or something closely connected to P (like a purse), and

(ii) The standard for the contact is that it would be offensive to a reasonable person (unless the defendant knew that the plaintiff was particularly susceptible).

In an essay, you’d create a heading for “battery,” recite the general rule for battery, create a sub-heading for the “harmful or offensive contact” element, and further define the rule for it (including what P’s person includes, if relevant to the facts).

If you don’t know these details, you might be led astray by a distractor choice of a question that tests one of these nuances on the MBE (or leave points on the table for the essay).

To prevent overthinking, understand the minute elements and nuances of the rules by seeing them in context (such as practice questions and answers) and be able to recall them on the exam.

How do you memorize?

• Use these 5 memorization tactics
• Use a source or outline that has these nuances included already

Really understand what’s being tested by the MBE question by studying the answer explanations

Fortunately, when you miss something, you can learn why from the answer explanations… With any luck, you’ll get that “aha” moment and remember it next time.

Advanced: This is optional. Memorize the questions and answer explanations at AdaptiBar. It’s a demanding exercise, but if you’re struggling with the portion of the bar exam that’s 50% of your score, you need to do what you can. You can print and carry your practice sets and explanations so you can test yourself while standing in line at Starbucks.

Redo questions until you get them correct even weeks later

If you do the same questions again, you WILL get some of them wrong, even though you may have assumed you “got” it after the first try.

Redoing the problems is an underrated tactic and has several benefits as discussed here. Unfortunately, some people will gloss over this idea and go back to asking where they can get more questions.