Bar Exam Writing Tip

It's important to remember that even when given a client to represent, often at the end of an essay prompt, there's no clients paying you to represent them. Unfortunately, since that would be nice.

You don't have to get into advocate mode, or competitive mode, or whatever mode is necessary to help your client to win. In fact, giving you a client to represent is often a trap by the test writers to see if you'll neglect arguments that weaken your side simply because you'd like to convince the reader that your "client" should win. Try to avoid those tempting instincts. Regardless of the side they give you, wear both hats. If an argument helps your "client," great. You don't need be wishy washy with conclusions that are warranted by the facts. But very often, explaining the strong arguments that the other side will have, and the weaknesses of your own side, will earn you as many points as advocating for the side you've been given. The number of points lost on essays by trying to hide potential winning arguments by the opposing side simply because people think the task is to advocate as strongly as possible for the side they've been given leads to many people not scoring as high on essays as they are capable of scoring!

MBE Tip: Process of Elimination

The test writers might not give you a perfectly correct answer because they aren’t obligated to do that. Rather, their obligation is to give you an answer that is less wrong than any of the others. Stated otherwise, and the way they state it: a “best” answer.

They are, however, obligated to give you wrong answers that are not arguably the best answer. They have to have a specific reason for why any given answer isn’t as good as the answer they are claiming is best. All that in mind, as you read each answer, try to find what’s wrong with it. What’s the thing in that answer that the test writers would point to if they had to support why it’s not best. When you’ve done that with 3 of the answers, you’ve, by elimination, determined the best of the four. 

 

Risk of Loss (Carrier Cases and Noncarrier Cases)

Risk of loss is an issue that, if it shows up, will show up in Contracts questions involving the sale of goods.  The delivery terms of a contract are important because they determine when the risk of loss passes from the seller to the buyer if the goods are damaged or destroyed.

Before highlighting the specific rules involving risk of loss, it's important to understand a few general principles. If the seller ships defective goods to the buyer, the risk of loss will remain on the seller until the defects are cured or until the buyer accepts the goods in spite of the defects. Similarly, if the buyer accepts goods from the seller but then rightfully revokes that acceptance, the risk of loss is treated as having remained with the seller to the extent of any deficiencies in the buyer's insurance coverage. 

Along with those general principles, there are some specific rules to know well, and these rules are dependent upon whether or not the contract calls for a carrier to deliver the goods. A noncarrier case is a sale in which the parties did not intend that the goods would be moved by a carrier. An example would be a situation in which the buyer has the obligation to pick up the goods at the seller's place of business. 

In such cases, if the seller is a merchant, risk of loss passes to the buyer only when the buyer takes physical possession of the goods. If the seller is not a merchant, risk of loss passes to the buyer upon tender of delivery (generally, the seller holding the goods for the buyer and notifying the buyer that the buyer can take possession). 

Carrier cases (contracts in which goods are to be shipped by a carrier) are further subdivided into shipment contracts and destination contracts. A shipment contract requires the seller to ship the goods by a carrier but does not require the seller to deliver the goods at a particular destination. The risk of loss in shipment contracts passes to the buyer when the goods are delivered to the carrier. The seller must, however, make a reasonable contract with the carrier to deliver the goods to the carrier, notify the buyer of the shipment, and provide the buyer with any documents necessary to receive the goods. 

Destination contracts, in contrast, do require the seller to deliver the goods at a particular destination. The risk of loss passes to the buyer only once the goods are delivered at that destination. 

With certain contracts, the buyer takes the goods for the purpose of re-selling them but also reserves the right to return them if not re-sold. The rules as sated apply, and if the buyer does return the goods, the risk of loss remains on the buyer until the goods have been returned to the seller. In other contracts, the buyer takes goods but reserves the right to return them even if they conform to the contracts. Here, risk of loss does not pass to the buyer until the buyer accepts the goods. 

An additional point to consider is whether obligations to perform are affected by loss of the goods. We know from the above that in a destination contract, the risk of loss passes to the buyer only upon delivery of the goods at the stated destination. And so, assume the goods are destroyed (through no fault of either party) in a destination contract while en route to the buyer. We know that the risk of loss has not passed to the buyer (so the buyer need not pay for the goods), but is the seller excused from having to ship new goods to to the buyer? Said otherwise, is seller's performance excused, since the seller was not at fault?

This will depend on whether the goods were identified when the contract were made. If the goods were identified when the contract was made, the contract is avoided (seller's performance is excused). If the goods were not identified until after the contract was made, the seller would need a defense (for example, impracticability) to avoid having to perform. 

MBE Tip: Dismissing Indictments

"Grant the motion to dismiss the indictment" is going to be a wrong answer in Crim Pro question. The police are going to do some very shady things. Even more shady than other questions (and they do some shady things in other questions), because the test writers want you to think the motion should be granted.

Don't grant it. Rather, the motion you should be considering is the later motion to suppress evidence at trial.

Results Are All In

The 3 lowest pass rates on the February '26 Bar Exam:
New Hampshire (36 test takers): 25%
New Jersey (405 test takers): 30%
Wyoming (20 test takers): 30%

The 3 highest pass rates on the February '26 Bar Exam: 

Mississippi (66 test takers): 73%  

Utah (75 test takers): 69%  

South Carolina (179 test takers): 66%

February '26 Bar Exam Results

Bar Exam results from the February exam have started to roll in. 

Once scores are publicly released, I'll post here in this post the pass percentages for each state. Listed, for comparison, will be the percentages for both February '26 and February '25. Also listed when available will be the number of examinees in each state who took the most recent exam. 

The results are color coded as follows:

Green  = a beat in 2026 compared to 2025 🙂

Red  = a beat in 2025 compared to 2026 ☹️

Blue = a tie in 2025 compared to 2026 😶

Alabama: 

February 2026 Pass Percentage: 33%

February 2025 Pass Percentage: 28%

# of test takers: 318

Alaska: 

February 2026 Pass Percentage: 48%

February 2025 Pass Percentage: 48%

# of test takers: 31

Arizona: 

February 2026 Pass Percentage: 53%

February 2025 Pass Percentage: 51%

# of test takers: 228

Arkansas:

February 2026 Pass Percentage: 36%

February 2025 Pass Percentage: 52%

# of test takers: 84

California:

February 2026 Pass Percentage: 31%

February 2025 Pass Percentage: 64%

# of test takers: 3,931

Colorado: 

February 2026 Pass Percentage: 53%

February 2025 Pass Percentage: 52%

# of test takers: 223

Connecticut:

February 2026 Pass Percentage: 32%

February 2025 Pass Percentage: 34%

# of test takers: 187

Delaware:

February 2026 Pass Percentage: 51%

February 2025 Pass Percentage: 53%

# of test takers: 79

District of Columbia:

February 2026 Pass Percentage: 41%

February 2025 Pass Percentage: 43%

# of test takers: 395

Florida:

February 2026 Pass Percentage: 44%

February 2025 Pass Percentage: 46%

# of test takers: 1,107

Georgia: 

February 2026 Pass Percentage: 53%

February 2025 Pass Percentage: 49%

# of test takers: 479

Hawaii:

February 2026 Pass Percentage: 59%

February 2025 Pass Percentage: 63%

# of test takers: 94

Idaho:

February 2026 Pass Percentage: 46%

February 2025 Pass Percentage: 51%

# of test takers: 48

Illinois: 

February 2026 Pass Percentage: 41%

February 2025 Pass Percentage: 40%

# of test takers: 718

Indiana: 

February 2026 Pass Percentage: 47%

February 2025 Pass Percentage: 47%

# of test takers: 182

Iowa:

February 2026 Pass Percentage: 46%

February 2025 Pass Percentage: 34%

# of test takers: 54

Kansas:

February 2026 Pass Percentage: 48%

February 2025 Pass Percentage: 54%

# of test takers: 62

Kentucky:

February 2026 Pass Percentage: 56%

February 2025 Pass Percentage: 50%

# of test takers: 90

Louisiana:

February 2026 Pass Percentage: 56%

February 2025 Pass Percentage: 56%

# of test takers: 192

Maine: 

February 2026 Pass Percentage: 47%

February 2025 Pass Percentage: 43%

# of test takers: n/a

Maryland: 

February 2026 Pass Percentage: 39%

February 2025 Pass Percentage: 38%

# of test takers: n/a

Massachusetts: 

February 2026 Pass Percentage: 49%

February 2025 Pass Percentage: 46%

# of test takers: 400

Michigan: 

February 2026 Pass Percentage: 47%

February 2025 Pass Percentage: 38%

# of test takers: 326

Minnesota:

February 2026 Pass Percentage: 44%

February 2025 Pass Percentage: 53%

# of test takers: 158

Mississippi: 

February 2026 Pass Percentage: 73%

February 2025 Pass Percentage: 47%

# of test takers: 66

Missouri:

February 2026 Pass Percentage: 51%

February 2025 Pass Percentage: 51%

# of test takers: 179

Montana: 

February 2026 Pass Percentage: 56%

February 2025 Pass Percentage: 41%

# of test takers: 25

Nebraska:

February 2026 Pass Percentage: 41%

February 2025 Pass Percentage: 51%

# of test takers: 41

Nevada: 

February 2026 Pass Percentage: 56%

February 2025 Pass Percentage: 46%

# of test takers: 186

New Hampshire:

February 2026 Pass Percentage: 25%

February 2025 Pass Percentage: 38%

# of test takers: 36

New Jersey:

February 2026 Pass Percentage: 30%

February 2025 Pass Percentage: 37%

# of test takers: 405

New Mexico:

February 2026 Pass Percentage: 42%

February 2025 Pass Percentage: 47%

# of test takers: 102

New York: 

February 2026 Pass Percentage: 41%

February 2025 Pass Percentage: 39%

# of test takers: 3,855

North Carolina:

February 2026 Pass Percentage: 56%

February 2025 Pass Percentage: 50%

# of test takers: 364

North Dakota:

February 2026 Pass Percentage: 57%

February 2025 Pass Percentage: 41%

# of test takers: 37

Ohio:

February 2026 Pass Percentage: 42%

February 2025 Pass Percentage: 43%

# of test takers: 338

Oklahoma: 

February 2026 Pass Percentage: 52%

February 2025 Pass Percentage: 47%

# of test takers: 106

Oregon:

February 2026 Pass Percentage: 42%

February 2025 Pass Percentage: 50%

# of test takers: 103

Pennsylvania: 

February 2026 Pass Percentage: 46%

February 2025 Pass Percentage: 38%

# of test takers: 412

Rhode Island: 

February 2026 Pass Percentage: 58%

February 2025 Pass Percentage: 54%

# of test takers: n/a

South Carolina: 

February 2026 Pass Percentage: 66%

February 2025 Pass Percentage: 54%

# of test takers: 179

South Dakota:

February 2026 Pass Percentage: 41%

February 2025 Pass Percentage: 55%

# of test takers: 32

Tennessee:

February 2026 Pass Percentage: 44%

February 2025 Pass Percentage: 44%

# of test takers: 240

Texas:

February 2026 Pass Percentage: 46%

February 2025 Pass Percentage: 47%

# of test takers: 1,012

Utah:

February 2026 Pass Percentage: 69%

February 2025 Pass Percentage: 72%

# of test takers: 75

Vermont: 

February 2026 Pass Percentage: 61%

February 2025 Pass Percentage: 31%

# of test takers: 31

Virginia: 

February 2026 Pass Percentage: 63%

February 2025 Pass Percentage: 61%

# of test takers: n/a

Washington: 

February 2026 Pass Percentage: 50%

February 2025 Pass Percentage: 43%

# of test takers: 280

West Virginia:

February 2026 Pass Percentage: 42%

February 2025 Pass Percentage: 54%

# of test takers: 31

Wisconsin:

February 2026 Pass Percentage: 48%

February 2025 Pass Percentage: 41%

# of test takers: 54

Wyoming:

February 2026 Pass Percentage: 30%

February 2025 Pass Percentage: 42%

# of test takers: 20

Post-Trial Motions

The writers of the MBE like to test on the topic of motions. There are pretrial motions, motions made during trial, and post-trial motions. This post focuses on the latter: motions made after the verdict. 

There are two motions to keep in mind here, and the first is a motion for a new trial. A party must make this motion within 28 days of the judgment. There are a number of reasons why a judge might grant this motion. 

Each of the following is a potential ground:

~ the judge gave an erroneous jury instruction

~ new evidence was discovered that could not have been discovered before with due diligence. 

~ misconduct was committed by a juror, party, lawyer, or etc. 

~ the judgment is against the weight of the evidence 

~ damages are inadequate or excessive (more on this later). 

The second post-trial motion to note is the motion for relief from order of judgement. The grounds for this motion are more demanding and the timeline in which to make the motion is longer. Rather than 28 days, this motion can be made any time if due to a clerical error, and within a reasonable time (up to a year) if due to anything allowable other than a clerical error. 

Specifically, the following grounds are allowable:

~ clerical error

~ mistake, or excusable neglect

~fraud, misrepresentation, or misconduct by the opposing party

~ newly discovered evidence that could not have been discovered with due diligence with enough time to make a motion for a new trial and existed at the time of trial

~ a void judgment 

The next topic does not specifically fall under the category of a motion, but is motion adjacent. Rather than moving for a new trial if damages are inadequate or excessive, the court might suggest remittitur and additur. 

With remittitur, the court offers plaintiff the choice as to whether to reduce the damages decided by the jury or to accept a new trial. Additur is similar to remittitur, but with a twist: the defendant is given the option as to whether to increase the damages award or to accept a new trial. An important distinction here is that although remittitur is allowable in both state and federal court, additur is only allowable in state court. The Seventh Amendment prevents a federal court from recognizing additur. 

NextGen UBE: Foundational Skills (Legal Writing & Drafting)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group D: According to the NCBE, the purpose of Group D is to assess the extent to which an examinee can complete a legal writing or drafting task based on the relevant rules and standards and consistent with a client's objectives, interests, and constraints. The specific tasks that will be tested to measure this purpose are as follows: 

~Draft or edit correspondence to a client explaining the legal implications of a course of action, updating the client on the status of a client's matter, and/or providing advice on the next steps to be taken in a matter. 

~Given draft sections of a complaint or an answer to a complaint in a matter, identify language that should be changed, and make suggestions on how that language should change, consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

~Given draft sections of affidavits that must be submitted to the court or other tribunal in a matter, identify the best affiant and best language to support each element to be proved, consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

~Given draft provisions of a contract or other legal document, identify language that should be changed, explain why it should be changed, and suggest how that language should change, consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

~Given a collection of legal sources, draft specified sections of a document, such as a memo, a persuasive brief or letter, or another common document, demonstrating skill at formulating an original legal analysis. 

~Draft or revise discovery documents consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

NextGen UBE: Foundational Skills (Legal Research)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group C: According to the NCBE, the purpose of Group C is to assess the extent to which an examinee can identify and implement legal research strategies, including preliminary issue-spotting, working with provided resources, developing and refining a theory of the case, and reaching closure on research questions. The specific tasks that will be tested to measure this purpose are as follows: 

~In a matter that requires legal research, identify the research questions that need to be answered. 

~Identify ambiguities in the language, standards, elements, or factors of a provided resource.

~Identify efficient legal research strategies, methods, or tools (including appropriate search terms) that are likely to uncover other legal sources or documents that are likely to assist in the interpretation of a provided resource to advance your understanding of a client's position.

~Given a collection of legal sources, identify the roles and characteristics of the sources, including their authoritative weight.

~Given one or more judicial opinions, identify the facts in a matter that are analogous to and/or distinct from the dispositive facts in the opinions.

~Given a collection of legal sources, identify other sources, search terms, or research strategies that might be used to update sources or find additional sources. 

~Given a collection of legal sources, identify which sources are relevant to or dispositive of a legal issue in the matter. 

~Given a collection of legal sources, identify whether the sources are sufficient to complete an assigned research task or other lawyering task. 

NextGen UBE: Foundational Skills (Negotiation and Dispute Resolution, Client Relationship and Management)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group B: According to the NCBE, the purpose of Group B is to assess the extent to which an examinee can identify lawyering strategies within the lawyer-client relationship, based on the relevant rules and standards and consistent with a client's objective, interests, and constraints. The specific tasks that will be tested to measure this purpose are as follows: 

~Identify which claims to recommend bringing. which remedies to recommend seeking, which evidence to present, which arguments or defenses to raise, or how to respond to arguments or defenses, and in a transactional matter which provisions to recommend including, based on the relevant legal rules and standards and consistent with a client's objectives, interests, and constraints. 

~In a matter requiring review of provided materials, such as police reports, interview excerpts, or discovery, identify gaps in information obtained, suggestions for improvement, and/or grounds for objection (if applicable).

~Identify two factors that favor a client's position or two factors that favor an opposing party's position in a matter. 

~Identify two benefits or two drawbacks of a proposed resolution of a dispute, consistent with a client's objectives, interests, and constraints. 

~Identify potential terms of a contract or settlement agreement that could advance negotiation or resolution.

~In a matter in which a client has multiple stated objectives, explain why a legal rule or principle, as applied to the client's situation, may make one of those stated objectives attainable or unattainable. 

~Determine the best strategy to identify the client's needs and achieve the client's goal and objectives.

It's worth noting that the Group B skill is also where a small selection of the Model Rules of Professional Conduct will be tested. 

NextGen UBE: Foundational Skills ( Issue Spotting and Analysis, Investigation and Evaluation)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group A: According to the NCBE, the purpose of Group A is to assess the extent to which an examinee can apply fundamental legal principles and legal reasoning to analyze given fact patterns. The specific tasks that will be tested to measure this purpose are as follows: 

~Identify which legal concepts and principles are likely to affect the outcome of a matter based on the information provided.

~Identify which facts are likely to be relevant to or dispositive of a legal issue in a matter. 

~Identify the applicable standards of review and/or burdens of proof that will apply to legal issues in a matter.

~Identify the strengths and weakness's of a client's position or an opposing party's position based on the relevant legal rules and standards. 

~In a matter that requires additional factual development, identify which facts need to be investigated, or the best strategy for investigating or eliciting those facts, in order to be able to evaluate the strengths and weaknesses of a client's position or an opposing party's position based on the relevant legal rules and standards. 

~Assess the probable outcome of a claim, motion, discovery matter, defense, or objection based on the relevant legal rules and standards.

~Identify the applicable or dispositive language, standards, elements, or factors of a provided resource (such as a statute, contract, or judicial opinion). 

The next post will focus on Group B!