bar examWhat if I am always in between two answer choices on the MBE? How do I pick the right one?

We help hundreds of students improve their MBE score each administration. One problem that many students seem to have is being stuck between two answer choices and then oftentimes picking the wrong answer choice.

Students get frustrated since they know the right answer — they simply choose the wrong rationale for the answer.

If you find yourself in a similar boat, then we have a few strategies that we recommend trying. 

Strategies to Try if You are In Between Two Answer Choices on the MBE: 

1. Stop Staring at the Answer choices. 

Instead, go back to the fact pattern and see if there are any key facts that help you accurately answer the question.

For example, let’s look at a question:

A woman has run a daycare out of her home for the past five years. The woman watches up to ten children ranging in age from three months old to two years old each day. The woman’s neighbor recently purchased a large dog. The dog barks loudly occasionally during the daytime hours and awakens the babies that the woman watches. The dog’s barking makes it very hard for the woman to properly run her business. The woman brings a lawsuit against the neighbor.  

Is the neighbor liable?  
(A) No, because the neighbor’s interference with the woman’s use and enjoyment of her property was not substantial. 
(B) No, because the neighbor’s interference with the woman’s use and enjoyment of her property was not unreasonable.
(C) Yes, if the woman can prove that the neighbor had bad intent.
(D) Yes, if the woman can prove that the neighbor failed to comply with an applicable city zoning ordinance.

Students who struggle between answer choice (A) and (B) generally struggle because they know that a nuisance both needs to substantially and unreasonably interfere with someone’s use and enjoyment of the property. However, instead of staring at the answer choices, it is helpful to go back to the fact pattern to see which answer choice is better. When we go back to the fact pattern, we see that “The dog’s barking makes it very hard for the woman to properly run her business.” and that the dog wakes up the babies several times. Thus, we know that (A) cannot be right because the interference is substantial. (B) must be correct because the interference is not unreasonable.

2. Ask yourself “What is the precise legal issue being tested?” 

If you can figure out the precise legal issue, you can identify the answer choice that best-recognizes that legal issue.

For example, let’s say you have a Real Property question where, in a race notice jurisdiction, a Lender loaned money to a homeowner in exchange for a security interest in the home (and the lender did not record). Then an investor loaned money in exchange for a security interest in the home (and the investor recorded and did not have notice of the lender’s interest). The call of the question might be:

Does the investor hold the land subject to the lender’s interest?
(A) No, because the investor did not have notice of the lender’s interest.
(B) No, because the lender failed to record its interest.
(C) Yes, because the lender’s interest is superior to that of the investor’s.

(D) Yes, because the lender was not fully paid by the proceeds of the sale.

In this case, you might know that the investor will not hold the land subject to the lender’s interest, but you might be stuck between (A) and (B) (one of which is the correct answer). Ask yourself, what is the precise legal issue being tested? In a race notice jurisdiction one only “jumps ahead” and takes priority if one was a bona fide purchaser for value without notice who recorded first. Thus the precise legal issue is “did the investor have notice?” not, “did the lender record?” Indeed, there are other ways to get notice besides recording (one could have actual or inquiry notice!). Thus, (A) is the best answer because it recognizes the precise legal issue.

3. Lastly, if two answer choices seem truly equally right, they may both be wrong!

Keep this in mind if you are in between two answer choices on the MBE and both of them seem extremely hard to choose between.

Other reasons that students get stuck in between two answer choices on the MBE and choose the wrong one are:

  • Maybe you don’t know the law well enough;
  • Maybe you don’t read the fact pattern or call of the question carefully enough.
  • Maybe you “overthink” questions (which we will be posting about soon.)
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