“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 when, by the way, the real bullets are also positioned under the catchers’ tongues. The moral of this story may be that misdirection is a good thing, at least when it’s employed for entertainment purposes – but not so much when your license to practice law hangs in the balance.
The variety of techniques employed on the MBE to misdirect your attention is extensive and 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 entry, what skills you’ll need to bring to the magic show to avoid being fooled. Put slightly differently, what should you have in your own bag of tricks? Here are some suggestions.
You Must Be a Good and Patient Reader of the Question.
The roots (i.e., the facts) set out in most MBE questions are only 125 words long. They are loaded with information and, 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.
You Must Know the Applicable Legal Rule – Cold.
Most Bar Exam applicants are excellent conceptual thinkers. By this I mean that, 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 answer and the next best (i.e., the wrong answer) rests on the thoroughness of the applicant’s knowledge of the applicable rule.
The next posting of You and the Bar Exam will continue this list of tools and lead to discussions of general techniques that apply to MBE questions across subject matters. In the meantime, please remember that there are 190 days left until the first day of the July Bar Exam. If you start your MBE practice today, you can pump up your expertise with only 10 questions per day.
