Conclusions on Essays

A student asked a question that I thought was important enough to address here. 

Definite conclusions are not necessary on a bar exam. There may be times when a conclusion is definite (I'm thinking of, say, an issue asking whether diversity jurisdiction is satisfied), but the fact that some conclusions are definite does not mean that you've done something wrong if some of your conclusions are indefinite. In fact, and this is something that over the years, I've seen students struggle with, the bar exam writers are looking for nuance: they are looking for answers that understand and respect the complexity in a given legal issue and aren't so quick to advocate for one side winning, even if the question tells you that you represent a specific party in the lawsuit. Most answers do have one side that is stronger than the other, and the conclusion is an opportunity to let the graders know that you recognize that. But not all answers. For some, the best conclusion is that more information is needed to draw a conclusion. When you get into advocacy mode and decide that in order to convince the graders that you've come up with the right conclusion you've got to downplay any strengths of the opposing side, you end up leaving many points on the table. Get those points; they'll benefit you more than they'll benefit the table.

Bar Exam Essay Writing Tips

The framework here does take time and effort to get good at. But, (and I don’t mean to say that this is the only way to write a bar exam essay), it’s the approach I teach to maximize scores.

Spot the legal issue. Let the graders know you’ve spotted it. Clearly and succinctly. Write down the legal rule(s) that will help you to analyze the legal issue. Here’s the part that takes practice. Although you’re writing down the full rule(s), you have to work on seeing the individual components of the rule. Not the engine, each component of the engine. Certain components might need their own definitions. In your mind, that rule has to break up into component parts, because legal analysis requires analyzing each component part of a rule. Might come naturally for some; others might need lots of practice. Analyze each component part of the rule by explaining how both sides will claim that the individual component benefits them. So, for example, “contact” is a component of battery in Torts. If it’s questionable if contact was made, explain what both sides will say about this. It may true that as to a specific component, the argument only runs one way. Don’t force those; that’s fine, too. Once you’ve analyzed each component (when applicable), bring all the components back together to draw a probable conclusion as to how the issue you’ve spotted will likely be resolved.

An Approach to Answering MBE Questions

I chose the title of this post with intention. What I'm about to outline is *an approach to answering questions on the MBE, rather than *the approach. People find different approaches useful, and even as I teach students, we work together to figure out the best individual approach. But that said, I do have a preference, and it's outlined below:

Step 1: Read the Call of the Question:

On the MBE, for the most part though not always, the test makers will assign you one of two characters. You'll either be a judge or a lawyer. A judge question is more objectively stated; the question might read something like "who should prevail?" A lawyer question, on the other hand, requires that you take a side and determine the best argument for that side. Such a question might read "what is the best argument for the plaintiff prevailing?"

Reading the call of the question will often provide you with your role. In addition, when practicing for the MBE, at least at the beginning, students will often practice subject by subject. But, on the exam, the cards are thoroughly shuffled, such that all the subjects are jumbled throughout. The call will often clue you in to the subject you're dealing with in a specific question, and that gives you a slight advantage moving on to the facts. 

In general, not reading the call of the question and jumping right into the facts is a bit like getting into a car and driving somewhere with no destination in mind. You sort of find your way as you're traveling throughout the facts. Reading the call gives you an idea of where the question is headed. 

Step 2: Read the Facts:

This here is a rather straight forward step. Before beginning to attempt to answer the question, you've got to read the facts. This step does, however, relate back to step 1. If you've determined that your role is as a lawyer, you should read the facts with an eye towards advocating for whichever "client" they've assigned you. On the other hand, we'd hope that judges would read the facts more objectively, and you should do the same if your role is as a judge in the question. 

Step 3: Eliminate the Two Worst Answers:

After reading the facts, students often begin hunting for the correct answer. Completely natural to do so, but I recommend otherwise. On the MBE, most questions present you with two roads, so to speak, in the answer choices. One road might be the "yes" road, and one the "no" road. Or one might be the "overruled" road, and one the "sustained" road. Many other possibilities as well, but the idea is that two answers point one way, and two answers point another. After reading the facts, the hope is that you'll have an idea which road the correct answer falls within. And then you should first go down the other road. 

The reason for going down the other road is that the goal is to eliminate answers, rather than to hunt down the perfect answer. On this test, there are three answers that are so wrong that they cannot even be argued by any reasonable person as correct. If any one answer other than the correct answer could be argued as correct, then the question is flawed. And these questions are under heavy scrutiny prior to making it onto the exam. Flawed questions are very rare. 

Because three answers must be so wrong that no reasonable person can argue them as correct, it's easier to eliminate wrong answers than it is to try to find the perfect answer. In fact, the perfect answer might not be there! Instead, one answer is not definitely wrong. That's worth understanding well, and it's what makes this a challenging exam. The right answer is simply the answer that is not definitely wrong. 

Go down the road where you do not believe the correct answer resides. Read those two answers, and unless they convince you otherwise (be open to this, of course), cross them out. You'll then be down to two answers, one correct, and one incorrect. 

Step 4: Eliminate One More Answer:

This is tough, no getting around it. You'll now need to travel down the road where you believe the correct answer resides, and eliminate one of the two answers residing on that road. But even with just two answers, the idea is not to spot the right one and choose it. The logic here is the same as it was in step 3. Even with two answers remaining, one of those two answers is so wrong that no reasonable person can argue it as correct. You've got to examine the two remaining answers and find something wrong with one of them. When you've found something wrong with one of the two answers, get rid of it. Only the correct answer remains. 

Step 5: Choose the Last Answer Standing:

At this point, you've eliminate three of the four answer choices. I wouldn't recommend blindly picking the answer that's left. But it's important to understand that most of the work and strategy went into eliminating the others, so the presumption should be that the answer choice left is "correct" as that word applies on this test. In other words, don't be so quick to decide that one of the answers you've already eliminated is better. The idea here is to confirm that the answer not eliminated does not have any blatant flaws. As long as the answer is not obviously wrong, and you're confident that you've found something in each of the other answers that makes each of those other answers wrong, choose the last answer standing. That answer may not be perfect, but it's perfect enough. 

Some Quick Advice

Some bar exam advice: no need to overcomplicate anything.

Issue: What question do you hope to answer in your conclusion. Make it clear for the graders so that they can give you whatever points they give for this. Rules: Don't give them rules that aren't needed to answer the question stated in the issue. Don't leave out rules that are needed. Don't over salt, don't under salt (so to speak). Analysis: It's not now the time to decide that you're going to zealously represent one of the fake characters in the hypothetical and claim that everything the other character has said is wrong. Rather, pretend like both sides are paying you and provide any reasonable arguments that they might make. This is where all those points come pouring in. A hurricane of points. Or tornado. Some weather event. Conclusion. The conclusion pretends like it's more important than it is. Don't believe it. State something, but most of the points are already gained, or already not gained, when you get to this part of the process.

The MBE: Behind the Scenes

Lots of very useful information for those preparing for the MBE is at this link.  I
learned quite a lot from reading it:

https://thebarexaminer.org/article/fall-2019/how-are-questions-written-for-ncbes-exams-part-one/?utm_source=social&utm_medium=twitter&utm_campaign=MCQ12.17

MEE Posts Coming Soon

These days, I tutor almost as much for the Multistate Essay Exam as I do for the Multistate Bar Exam.  As such, I'd like to start posting on the essay subjects tested on the MEE (that are not tested on the MBE) as well as continue to post on the MBE subjects.    The subjects covered in these posts will be the following:

Agency & Partnerships
Corporations & LLCs
Family Law
Conflict of Laws
Secured Transactions
Wills
Trusts

As always, I hope that you find the posts helpful in your preparation for the exam!

Podcast

Very good advice on a podcast from the Bar Exam Toolbox regarding the MBE can be found @

http://barexamtoolbox.com/podcast-episode-52-bar-exam-tips-mastering-mbe/.

In general, these podcasts provide some really great advice and information.

MBE Percentiles (July 2016)

The MBE percentile chart has been released from the July 2016 exam.  The numbers are as we are used to seeing though I think it worth noting the jump in percentile from a 145 scaled score to a 150 scaled score.  An increase of 5 scaled points in this range results in a jump from the 57th percentile to the 70th percentile.   Similarly, 5 scaled points from a 140-145 results in an 11 point percentile jump from the 46th percentile to the 57th percentile.  The complete chart is below.

Another Change to the MBE

Nothing of great significance here, but the NCBE has quietly announced on its page that beginning in February 2017, the MBE will be scored out of a total 175 points as opposed to 190 points.  The test will still consist of 200 questions but with this change 25 of the questions as opposed to 10 of the question will remain unscored, used only as potential questions for future exams.

This news won't affect anything in regards to studying for the exam, but I thought it an interesting change worth mentioning.

Revisions in Real Property for February 2017

It's still quite early to be gearing up for the February 2017 exam.  But there are some changes to keep in mind for those who intend on beginning their preparation soon. The changes that will take place for the first time in February are in the subject of Real Property and the NCBE has provided some guidance on its website:

Effective with the February 2017 administration, there will be changes to the Real Property scope of coverage for the MBE and the MEE. The Real Property topics will be slightly reordered and revised.

New topics will include conflicts of law ; property owners’ associations and common interest ownership communities ; drafting, review, and negotiation of closing documents ; and persons authorized to execute real estate documents.

Minor modifications will include providing specific examples of rules affecting future interests; including security deposits in termination of tenancies; providing more detailed zoning topics; and including as separate topics transfers of restrictive covenants, transfers of easements, profits, and licenses, and acceleration of loans before foreclosure.

Note that the following Real Property topics will no longer include (1) application of Article 9 of the Uniform Commercial Code to fixtures or (2) abatement of devises.

For the revised scope in this subject, see the most recent subject-matter outline @ http://www.ncbex.org/pdfviewer/?file=http%3A%2F%2Fwww.ncbex.org%2Fdmsdocument%2F184

MBE Percentiles (February 2016)

Nationwide MBE percentiles for the February 2016 exam have been released. The lowest scaled score listed (105) would place you in the 1st percentile of test takers, while a scaled score of 165 or higher would place you in the 99th percentile or above 99 percent of all those who took this exam.

The 50th percentile fell close to a scaled score of 135.

MBE Statistics

For those interested is some statistics, these stats from 2015 come directly from the National Conference of Bar Examiners.

The first table provides the mean score for the February and July exams along with the percentage of students who scored given scaled scores (in 5-point increments) throughout those two exams. Other info provided includes for both February and July, the number of examinees, the standard deviation, the maximum and minimum scaled scores, and the median.

Next is a chart which represents the differences between the July and February exam regarding the percentage of students who scored a given score on the exam.

Last is a chart and table, this time representing the mean MBE score for both July and February in the years 2006-2015.

New Content for July 2016

Whenever a change is scheduled to the MBE that change is listed on the website for the National Conference of Bar Examiners. There are a few scheduled content changes on the page but the only one of immediate concern for those taking the test in July 2016 deals with the recent updates to the Federal Rules of Civil Procedure. With these amendments to the Rules, the subject matter outline for Federal Procedure has also been modified. My thought is that new questions will deal especially with discovery as many of the amendments centered around this topic.

Certainly the bar-review books for the July exam will cover these changes, but for a comprehensive review and summary of the most important changes, see http://www.jonesday.com/significant-changes-to-the-federal-rules-of-civil-procedure-expected-to-take-effect-december-1-12015-practical-implications-and-what-litigators-need-to-know-09-25-2015/

The Final Few Weeks

As you enter your final few weeks of preparing for the February MBE, a good resource to consult is the MBE subject matter outline created by the NCBE. Not only will reading it over ensure that you have studied all of the potential areas that might be tested in each subject, but it will also provide you with information regarding which areas might be worth reviewing more than others. When it comes to preparing for a bar exam, not all topics are created equal. This applies both to the essays and to the MBE; though it's a good idea to cover all bases, some topics because of the frequency with which they are tested require more focus.

The outline can be found @ http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F182.

**Note also that if you are preparing for the Multistate Essay Exam, a similar outline is found @ http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F182

More Changes to the MBE

Though these newest changes will not affect anyone planning to take the exam in February or July of 2016, the NCBE has announced changes to the subject of Real Property that will take effect in February of 2017. From the NCBE:

"Effective with the February 2017 administration, there will be changes to the Real Property scope of coverage for the MBE and the MEE. The Real Property topics will be slightly reordered and revised.

New topics will include conflicts of law (I.D.4.); property owners’ associations and common interest ownership communities (II.A.6.); drafting, review, and negotiation of closing documents (V.B.3.); and persons authorized to execute real estate documents (V.B.4.).

Minor modifications will include providing specific examples of rules affecting future interests (I.A.2.e.); including security deposits in termination of tenancies (I.C.4.); providing more detailed zoning topics (II.D.1.–3.); and including as separate topics transfers of restrictive covenants (II.A.4.), transfers of easements, profits, and licenses (II.B.4.), and acceleration of loans before foreclosure (IV.E.2.).

Note that the Real Property topics will no longer include (1) application of Article 9 of the Uniform Commercial Code to fixtures (previously included in II.C.) or (2) abatement of devises (previously V.C.5."

See the announcement @ http://www.ncbex.org/news/future-changes-to-the-real-property-scope-of-coverage-for-the-mbe-and-the-mee/

MBE Results

I don't yet have the data for the Summer 2015 exam but it looks to have been an especially difficult one. The NCBE claims that the addition of Civil Procedure has not made the test markedly more difficult because students do not perform significantly worse on that subject than they do on any other subject. But I don't think that tells the entire story; with an additional subject added to the exam, time is pulled from studying for the many other areas tested. And the results are reflecting this change:

"The average score on the multiple-choice portion of the July test fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided to Bloomberg by the National Conference of Bar Examiners. The mean score on this summer's exam was 139.9, down from 141.5 in July 2014."

Read more @ http://www.bloomberg.com/news/articles/2015-09-17/bar-exam-scores-drop-to-their-lowest-point-in-decades

Changes to the New York Bar Exam

Some major changes have been recommended by the New York Bar of Law Examiners, but it looks as though all will remain as is at least through July 2015.

http://www.newyorklawjournal.com/id=1202676210511/Court-of-Appeals-Delays-Adoption-of-New-Bar-Exam?mcode=1202615704879

July 2014 MBE Percentiles

The nationwide MBE percentiles for the July 2014 exam have been released. Here's a bit about how the numbers work: The 54th percentile was a 145 and then 15 more scaled points (160) shoots you all the way up to the 86th percentile. The top scaled score on this exam was a 185, and the lowest scaled score was a 110.

The complete chart is below. Note that the essay data only applies to the state of Illinois, so only focus on the 2nd column if you're interested only in the numbers for the MBE.

Good luck!

Good luck to all in this final week of preparation for the July exam!! Posting to resume shortly in preparation for February.

February Results

Best of luck to all those awaiting Florida Bar Exam results to be released tomorrow!