“The importance of misdirection incorporated into your act cannot be stressed enough. Factors include where your audience is positioned, where and when they look and what they are thinking about. Basically, misdirection is making sure that [they] stay focused on the magic and don’t start trying to figure out how the trick is done” – www.goodtricks.net
The last entry of You and the Bar Exam considered how magicians, including, if you will, those who create the Multistate Bar Exam, work to fool the unwary. In Penn and Teller’s “Double Bullet Catch,” all but the most alert audience members would probably miss the clever substitution of wax bullets for the real bullets that the stars “catch” in their mouths. Critical to “the Catch” is diverting the audience’s attention at the moment of the substitution. The moral of this story may be that misdirection is a good thing when it’s employed for entertainment purposes – but not so much when your license to practice law hangs in the balance.
The techniques employed on the MBE to misdirect your attention are varied. Future postings on You and the Bar Exam will break down some of them. First though, we need to discuss some basics: In this posting, what skills you’ll need to bring to the magic show to avoid being fooled. Put slightly differently, what you should have in your own bag of tricks. Here are some suggestions.
1. You Must Be a Good and Patient Reader of the Question.
The roots (i.e., the facts) of most MBE questions are only 125 words long. They are loaded with information – and this is important – not only in what they say but, often, in what they imply. For example, a contracts question may leave it to you to determine whether “P” and “D” are merchants; this, of course has implications for whether the Uniform Commercial Code applies. In a question involving consent or assumption of risk, don’t expect the plaintiff to say “I consent,” or I assume the risk.” (Duh.) Among other tricks in your bag therefore, must be the ability to read the root with hyper-vigilant comprehension – with your analytical peripheral vision on full throttle. What is the question saying and what is it implying.
2. You Must Know the Applicable Legal Rule – Cold.
Most Bar Exam applicants are excellent conceptual thinkers. By this I mean that, for example, without having a multiple- part rule committed to memory, they can often reason their way to the entire rule if they are supplied one or more of its parts. This is a great skill for essay writing, but don’t count on it on Day 2. Often, the difference between the correct MBE answer and the next best (i.e., the wrong answer) rests on the thoroughness of the applicant’s knowledge of the applicable rule. So .. “spurn not the flash card” in your studies.
3. You Must Know How the Rule Operates.
I call this “rule familiarity” or “rule contextualization.” It means, for example, that you not only can recite the Felony Murder Rule, but that you know when it applies and when it doesn’t.
4. You Must Have MBE-Specific Pattern Recognition Skills.
MBE questions are difficult for different reasons: some, because of how they are structured; some, because of the substantive knowledge they call on; some, because of the analysis or logic they require. However, there’s good news. That is that there are only a limited number of question structures – let’s call them the bones of the questions. Question drafters take these prototypical skeletons and add different facts and rules to them – let’s call them the muscles and flesh of the question. If you can teach yourself to recognize the prototypical question structures, you’ll be much closer to the correct answer much faster than otherwise, irrespective of the fact pattern or the rules that are in play.
The next posting of You and the Bar Exam will discuss a fundamental technique for use in approaching all MBE questions. In the meantime, please remember that there are 254 days left until the first day of the July Bar Exam. If you start your MBE practice today, you can make yourself an expert with only seven questions per day.
