Conquer the MBE and MPRE with Fleming’s as Your Guide!

What are the MBE and MPRE?

The Multistate Bar Examination (“MBE”) is a six-hour, 200-question multiple-choice examination developed by the National Conference of Bar Examiners (“NCBE”). In California (“CA”), the MBE is administered on the second day of the two-day Bar Examination with a three-hour, 100-question morning session. Examinees return after a lunch break for a three-hour, 100-question afternoon session.

CA also administers a three-hour, 100-question MBE on its First-Year Law Students' Examination (aka “Baby Bar” or “FYLSX”).

The Multistate Professional Responsibility Examination (“MPRE”) was also developed by the NCBE. The MPRE is a two-hour, 60-question multiple-choice examination.

Considering the above, many law school professors are increasingly using the multiple-choice format to test law students.

Why is this important to all law students and Bar candidates within and outside of CA?

FFOL was founded more than 37 years ago. Its student examinees have been based not only in CA, but also throughout the U.S., as well as outside of the U.S. All of them are preparing for law school exams, the CA Baby Bar, a Bar Examination, and/or the MPRE.

Much has been written on FFOL’s renowned history of preparing law students and Bar candidates to conquer multiple-choice exams, essay exams, and performance tests with its “Science of the MBE”, “Essay Writing Workshop” and “Performance Workshop”, respectively, as well as its comprehensive Bar Review, which includes all three of these courses and more.

The focus in this article is on the fact that wherever examinees are based, and whatever exam(s) they are preparing for, multiple-choice examination skills are just as critical as writing skills for any aspiring lawyer both within and outside of CA.

The MBE is administered by user jurisdictions (including all U.S. states except Louisiana) as part of the Bar Examination. An equal number of questions test Civil Procedure, Real Property, Evidence, Criminal Law/Procedure, Contracts, Torts, and Constitutional Law.

The MBE is especially critical in CA, which increased its Bar Exam weighting (as of the July 2017 administration) of the MBE from 35% to 50% in calculating each examinee’s total scaled score. In addition, CA has an exceptionally high requirement of 144/200 (72%) of correctly answered questions for a passing MBE score.

Furthermore, certain types of first-year law students must pass the CA Baby Bar (with 50% of the total scaled scoring attributed to Contracts, Torts, and Criminal Law MBE questions) before continuing their legal education.

Moreover, the MPRE is required for admission to the bars in all but two U.S. jurisdictions (Wisconsin and Puerto Rico). The MPRE tests the Model Rules of Professional Conduct and Model Code of Judicial Conduct. CA requires the highest minimum passing MPRE score of any jurisdiction.

How should examinees reason their way to the correct multiple-choice answer?

A law student recently contacted FFOL to ask about the proper methodology for attacking MBE questions, and how to reason through the two MBE questions below in order to arrive at the correct answer option choice.

The following demonstrates the question, the answer options, and how to pick the best option choice.

The power company operated a nuclear power plant on the seashore just outside the city and sold electricity generated by its operations to city residents. To cool its equipment, the power company drew water from the ocean and piped it through portions of its plant. Because this operation made the water highly radioactive, the power company stored used water in a series of large concrete holding ponds. The water stored in this fashion was subject to a series of procedures designed to “neutralize” it by removing the radioactivity before it was returned to the ocean. Because of an earthquake, one of the concrete holding ponds cracked, permitting several million gallons of neutralized water to escape. Although the escaping water was not radioactive, it caused substantial damage to the fields of a farmer as it passed over them.

If the farmer asserts a claim against the power company for the damage to his realty, should the court find for the farmer?

1. Yes, because operating a nuclear power plant is an abnormally dangerous activity.
2. Yes, because water is a substance that is likely to do great harm if it should escape from captivity.
3. Yes, because it was unreasonable to operate a nuclear power plant in an area where an earthquake could occur.
4. No, because the damage resulted from an Act of God.

FFOL teaches examinees to start with the “call of the question”, which is what the examiners are asking. In this example, as is most common, the call is in the middle of the question (where it asks, “If the farmer asserts a claim against the power company for the damage to his realty, should the court find for the farmer?”). The facts are at the top of the question, and the answer options are at the bottom. Starting with the call allows the examinee to identify the tested subject and narrow the focus of the question. In this call, a private party (“farmer”) is asserting a claim against another private party (“power company”) “for damage to his reality.” This strongly suggests this is a Torts question. 

Importantly, the call of the question refers to “a claim” is general and not specific. This indicates examinees should consider the court finding or not finding for the farmer on any type of claim, most likely on a theory of negligence, intentional tort, or strict liability.

Next, FFOL teaches examinees to read the facts, followed by the answer options. An acceptable alternative is to read the answer options followed by the facts. FFOL encourages students to try it both ways to determine which is more effective for them.

In the answer options here, key language of “abnormally dangerous activity”, “water”, and “escape from activity” raises an educated guess that strict liability activities on the land are a potential claim. “Unreasonable (conduct)” plus “Act of God” raises an educated guess that negligence is a potential claim. This puts examinees in the proverbial driver’s seat when analyzing the facts.

The language “for damage to his realty” in the call suggests a possible intentional tort claim on a theory of trespass to land. However, the answer options do not include related language such as “intentional entry.” This raises an educated guess to read the facts with negligence and strict liability in mind more than intentional tort.

Notice how much can be gleaned by reading the call and answer options before even reading the facts.

Examinees must always choose the best answer that is responsive to the call of the question, and supported both by applicable law and the facts presented.

A is a tempting answer because operating a nuclear power plant will often be found in an abnormally dangerous activity.

However, for A to be correct and the court to find for the farmer as the call requires, strict liability law requires that the farmer suffered damage of the type that makes operating a nuclear power plant an abnormally dangerous activity (i.e., damage caused by radioactivity). Because the facts provide the “neutralized” (factually not radioactive and quoted by the examiners for emphasis) water caused the farmer’s damage, A cannot be right.

B appears to be a much better answer than A because it correctly states the strict liability law from the case of Rylands v. Fletcher. It is also consistent with the facts here that water did do great harm (“substantial damage” in the facts) when it escaped from captivity (in the form of the holding ponds). Lastly, it is responsive to the call as to why the court should find for the farmer.

Put a question mark next to B as a good answer, and then consider C and D if either is a better answer than B. Again, the best answer is always the correct answer.

In C, the term “unreasonable” raises negligence, which requires a proximate cause for a prima facie case. However, “could occur” in answer C does not appear sufficiently foreseeable for the court to find the proximate cause. This is especially so since “Because of an earthquake” is the only fact provided regarding the earthquake, which alone does not indicate that the earthquake was foreseeable.

D is supported by the fact that the damage did result from an Act of God (the earthquake). However, this fact alone would be insufficient for the court to find against the farmer (responding to the call) because negligence law would allow the court to find for the farmer if the power company failed to exercise reasonable care in preventing foreseeable results of an Act of God.

After having exercised proper MBE methodology and reasoning, it is clear that B is the best answer.

Now, here is the second MBE example with an explanation of proper methodology and reasoning in order to arrive at the correct answer option.

A boy overheard two other boys talking about killing the victim by hiding his asthma medicine.

The boy hoped that the other boys’ plan would succeed.  He decided to help them without saying anything about it. Going into the victim’s room, the boy searched until he found the medicine. Then he put it on a night table so that the other boys would be sure to find it. One of the two boys decided not to go through with the plan and ran away.

However, the other boy went to the room and threw away the medicine. The victim had an asthma attack and died.

A statute in the jurisdiction provides that persons the boy’s age are adults for purposes of criminal liability.

If the boy is charged with conspiracy, will a court find him guilty?

1. Yes, because he knowingly aided and abetted in the commission of a crime.
2. Yes, because he committed an overt act in furtherance of an agreement to throw away the victim’s medicine.
3. No, because he did not agree to commit any crime.
4. No, because one of the boys effectively withdrew from any conspiracy that existed.

As with the previous question, start with the call. Language of “charged”, “conspiracy”, and “guilty” suggests Criminal Law is the tested subject. The call also provides that the issue is “conspiracy.” Compare this to the previous question, which did not provide the issue raised by simply referencing “a claim.”

A is a tempting answer because it is supported by the fact that the defendant had knowledge of a future crime (when he overheard two other boys talking about killing the victim by hiding his asthma medicine).

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A is also supported by the fact that the defendant, with this knowledge of a future crime, aided and abetted in the commission of that crime (by putting the asthma medicine where the other boys would be sure to find it for purposes of hiding it to kill the victim).

Although A is a correct statement of the law as to accomplice liability, it is nonresponsive to the call as well as to the issue of conspiracy. FFOL, therefore, suggests crossing off A to visually narrow the focus to the other three choices.

B is tempting because it is a correct statement of conspiracy law. Furthermore, B is supported by the fact that the defendant committed an overt act in furtherance of murder by throwing away the victim’s medicine. However, conspiracy law and choice B both require an agreement. The fact that the boy “overheard” the other boys and decided to help them “without saying anything about it” negates both a verbal agreement and an agreement by conduct.

C is a strong answer where B is not. C is responsive to the call as well as to the issue of conspiracy. It states the requisite agreement for conspiracy law and correctly states that the boy is not guilty because the facts do not support the court finding the boy entered an agreement (with the other boys) to commit a crime.

Do not stop there because, although C is a good answer, D may be a better answer.

D is testing the sub-issue of withdrawal arising under conspiracy law. However, D is not strong because there can be no withdrawal from a conspiracy that was never formed between the boy on trial and the other two boys.

Moreover, even if there were a conspiracy between all three boys, if one of them apart from the defendant effectively withdrew, that would not relieve the remaining two co-conspirators (including the defendant) of criminal liability.

Lastly, even in jurisdictions that allow a withdrawal defense, D is nonresponsive to the call because effective withdrawal will not prevent criminal liability for a conspiracy (here, conspiracy to commit murder).  Effective withdrawal would only prevent criminal liability for the target and/or foreseeable crime (here, the murder itself as a separate crime that will not merge with conspiracy to commit murder).

After having exercised proper MBE methodology and reasoning, it is clear that C is the best answer.

What does FFOL offer to achieve a high multiple-choice score?

Overview

• FFOL provides 3,400 MBE questions to Bar candidates, 1,100 MBE questions to Baby Bar candidates, and nearly 200 MPRE questions to MPRE candidates.

• FFOL Bar Review, Baby Bar Review, and MPRE Review courses present the black letter law contextually by regularly referencing multiple-choice fact patterns that typically raise the most testable issues.

• FFOL Bar Review includes both an overview Introduction to the MBE MP3 audio lecture from Professor Fleming personally, and subject-specific ones focusing on tricks of the trade per subject. Examinees following along with their Substantive Law outline per subject is recommended.

• FFOL Baby Bar Review dedicates several hours to multiple-choice strategies. This course concludes Day 1 of 4 with a simulated Baby Bar MBE session of 100 MBE questions in three hours as an initial diagnostic.

• In the Bar Review and Baby Bar Review, Professor Fleming personally designs simulated MBE exams (to hit the most testable issues per subject) and a structured “boot camp” schedule.

• FFOL MPRE Review includes an in-depth review of several MPRE practice questions following the black letter law presentation.

Online Science of the MBE

• FFOL’s Science of the MBE course is to MBE what its Writing Workshop is to essays and what its Performance Workshop is to Performance Tests. Each course focuses on exam strategies.

• About the Science of the MBE Instructor, Professor Jared Gross:
  • Professor Gross passed three Bar Exams (including CA and NY, both regarded as among the most difficult in the U.S).
  • Professor Gross has been on the FFOL Faculty since 1999.
  • Professor Gross achieved a perfect score of 800/800 on the LSAT
  • Professor Gross has lectured on exam strategies at various law schools including UCLA, Pepperdine, Arizona State University, University of Arizona, and Santa Clara University.

• The Science of the MBE is included in FFOL Bar Review and available for purchase on its own. Discounts maybe are available. 

Steve Emanuel

• Many examinees regard Steve Emanuel’s “Strategies and Tactics for the Finz Multistate Method” and “Strategies and Tactics for the MBE” as the preeminent books for MBE mastery and practice. FFOL includes both books with its Baby Bar Review course and only the Finz book with Bar Review.

• The Finz book is excellent for the following reasons:

• The questions are difficult and allow students to challenge themselves.

• This book includes nearly double the Civil Procedure questions in its latest edition than in its previous edition. Such questions are difficult to come by because Civil Procedure was added to the MBE on the Bar only within recent years.

• Thorough answer explanations are included.

• At a minimum, FFOL recommends reviewing answer explanations to the questions that examinees got wrong until they understand why the answer they selected is incorrect and why an answer they did not select is correct. Making flashcards may help.

• A student recently reported that no matter how many Contracts MBE questions she did, she was not seeing improvement. FFOL discovered she was not fully reviewing the explanations, which illustrates the “quality over quantity of practice” adage applies to MBE. True, the quantity of practice is important, but not at the expense of quality to the point that a student ends up repeating the same mistakes.

• A table of contents (aka “question index”) is included.

• For each subject, the questions have identified that test particularly. For example, the Civil Procedure index shows Questions 3, 29, 40, 56, and 136 (5 questions total) test “Federal Question” as a subtopic under “Subject Matter Jurisdiction.”
• Therefore, students get Question 3 wrong, they know to solidify their grasp on federal question subject matter jurisdiction by not only reviewing the related answer explanation, but by also practicing questions 29, 40, 56, and 136 specifically.
• Similarly, the question index indicates that there are 17 questions that test diversity subject matter jurisdiction. That is more than three times as many diversity jurisdiction questions as federal question jurisdiction questions.

• The Civil Procedure question index indicates that only one question tests on insurance as to discovery. This illustrates how some issues are tested with high (i.e., diversity), medium (i.e., federal question), and low (i.e., insurance) frequency. In turn, this underscores the importance of prioritizing studies from highest to lowest likelihood of being tested. It also reduces the stress examinees experience from the overwhelming yet false sense of having to know everything because it is all of equal importance.

• The index allows all students to practice certain issues that they know they are weaker in. Similarly, the index allows law students to practice those issues that will be tested on their next exam without getting bogged down by questions that will not be relevant until the following exam.

• FFOL is proud to announce the addition of Emanuel’s Bootcamp for the MBE, included in every Bar Review. This interactive web training tool walks through Steve Emanuel’s personal training methods with instructional content and audio explanations.

• FFOL suggests focusing on printed MBE questions first because these allow examinees to diagram right there next to the fact pattern. For example, in a Real Property question testing the Recording Act, it is common to have multiple conveyances on different dates, to multiple parties recording (imputing record notice) on different dates, some of whom paid value or did not, with facts possibly imputing or negating actual notice or inquiry notice, and providing that the land is located in a jurisdiction that uses a certain type of recording statute. Especially under exam time constraints, a diagram is an excellent way to visualize through analysis to the best answer.

• Finz is also excellent because it organizes the MBEs by subject for a foundation in a selected subject per week or day. It also includes a 200-question practice exam so examinees can simulate the Bar with questions in mixed subject order. As required on the Bar, examinees must first identify which subject each question is testing.

NCBE & FFOL MBE Questions & Answers Book

• This book is included in the FFOL Bar Review.  
• These MBE questions are of average to high difficulty.
• Civil Procedure questions (hard to come by as mentioned above) are included with detailed explanations. These questions are isolated in a section to help examinees focus on Civil Procedure, which tends to be a more difficult subject for examinees.
• Except for Civil Procedure, all subject questions are in mixed subject order (excellently simulating the Bar).
• The answer key for NCBE subject questions includes only the correct answer and (in some cases) which subject that question tested (without answer explanation). Therefore, FFOL recommends using this book to test speed and accuracy and to identify which subject(s) students may be weaker in so students can focus more time on those subjects and less time on the others in the books that do separate questions by subject.

NCBE MBE Online Practice Exams 1-4

• This book is included in the FFOL Bar Review. 
• This book includes MBE questions of average to high difficulty.
• This book includes questions testing all subjects (except Civil Procedure) in mixed subject order (simulating the Bar as to ordering, albeit with the subject identified above the question).
• This book provides excellent answer explanations for each question.

FFOL MBE Workbooks Vol. 1 and 2

• These books are included in the FFOL Bar Review or sold separately.
• These books include questions (separated by subject), answer explanations, and a question index for all MBE subjects as well as for Professional Responsibility (for MPRE practice).
• These questions are of average to low difficulty. Therefore, FFOL recommends starting with these books to improve proficiency and confidence before embracing the challenge of the more difficult books.
• Do not be discouraged if initial scores are low. This is normal and part of the process. Gradually, scores typically improve with the quality and quantity of books. 
• 1 is included in the Baby Bar Review and includes a simulated Baby Bar of 100 MBE questions in mixed order on Contracts, Torts, and Criminal Law.

About MPRE Prep Program Instructor

• Professor Leah Christensen teaches the FFOL MPRE preparation program.
• Professor Christensen is a graduate of the University of Chicago and University of Iowa College of Law.
• Professor Christensen’s experience includes more than eight years as a litigator and fifteen years as a law professor in the area of Professional Responsibility.
• Professor Christensen frequently appears at various law schools throughout the U.S. lecturing on how to pass the MPRE. She has received numerous teaching awards in the area of Professional Responsibility.
• Professor Christensen co-authored the case book, “Learning Professional Responsibility: From the Classroom to the Practice of Law.”

Private Tutoring

• FFOL’s Customized Personal Tutorial Program for law students, as well as for Baby Bar, Bar, and/or MPRE candidates, can be tailored to multiple-choice and/or the underlying substantive law. This allows students to pay as they go. Anytime 10 hours are purchased together, the 11th hour is free.
• Bar candidates can alternatively opt for FFOL’s Premier Tutorial Package, which includes 23 hours of discounted prepaid tutoring. Seven of those hours are normally dedicated to the MBE tutorial. This can be adjusted based on the examinees’ own personal study needs.

Daily Telephone and Email Consultation

• Attorneys are available Monday through Friday during office hours for a brief consultation, such as talking through difficult MBE questions that examinees encounter in practice.

Last update of the article 06/30/2020