Taking Multiple Choice Exams1

Washburn Law School Prof. Rogelio Lasso

I. INTRODUCTION
Multiple choice questions in law school bear little resemblance to the multiple choice
questions students are likely to have encountered in undergraduate school. base the
multiple choice questions in my final e!ams on multiple choice questions from old
multistate bar e!aminations. "s anyone who has taken the bar can tell you# the multiple
choice questions in the multistate section are very difficult. Most law graduates who do
not pass the bar e!am the first time# fail to pass because they score too low on the
multistate# multiple choice questions.
Multiple choice questions in the bar e!am are difficult for several reasons. $he factual
scenarios are often comple! and some of the options for answers are hard to
distinguish from one another. $he questions and the answers often contain distracting
information designed to lure the reader from the real focus of the question. $o do well in
these type of multiple choice questions# students must not only thoroughly understand
the applicable substantive law being tested in a given question# but must also have
developed sharp reasoning skills# and must understand the unique way in which these
multiple%choice questions are asked.
believe you are less likely to be ambushed by the multistate bar e!am if you are
familiar with the type and degree of difficulty of its questions early during law school. &or
that reason# a significant portion of my final e!ams consist of multiple choice questions
modeled after the bar questions. $his document is designed to provide you with basic
information about law school
multiple%choice questions.
II. TERMINOLOG O! MULTI"LE C#OICE $UE%TION%
". 'uestions or items (many forms)
*. Multiple +hoice 'uestions have $hree ,istinct Parts- Root (facts). %tem (question).
and Options (answers)
+. Root (/nderlying &acts)
0. Written in either present or past tense
1. +an be short or very long
2. +an have one set of options or several
3. "ll the facts can be significant or many can be irrelevant
,. Stem (question)
0. +all of the 4ptions or the task to be done
1. &orm of a question or a call for the completion of a sentence
2. +an add facts to the root
3. May require assumptions to be made
5. May specify what cause of action or theory to advance. may not
6. 4ptions (+hoices given as answers)
0. May state conclusions only
1. may link conclusion with a reason to support it
2. options may seem related
3. options may be totally independent
III. %&M"LE MULTI"LE C#OICE $UE%TION
ROOT
Philip was a 07%year%old boy. Macco was a company that sold new and used machinery.
Macco stored discarded machinery# pending sale for scrap# on a large vacant area it
owned. $his area was unfenced and was one%quarter mile from the housing
development where Philip lived. Macco knew that children frequently played in the area
and on the machinery. Philip8s parents had directed him not to play on the machinery
because it was dangerous. 4ne day Philip was playing on a press in Macco8s storage
area. $he press had several wheels# each geared to the other. Philip climbed on the
larger wheel# which was about five feet in diameter. Philip8s weight caused the wheel to
1
rotate# his foot was caught between two wheels that were set into motion# and he was
severely in9ured. " claim for relief was asserted by Philip through a duly appointed
guardian. Macco denied liability and pleaded Philip8s contributory fault as a defense.
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
%TEM (question)
n determining whether Macco breached a duty to Philip# which of the following is the
most significant:
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
O"TION%
(") Whether the press on which Philip was in9ured was visible from a public way
(*) Whether the maintenance of the area for the storage of discarded machinery was a
private nuisance
(+) Whether the maintenance of the area for the storage of discarded machinery was a
public nuisance
(,) Whether Macco could have eliminated the risk of harm without unduly interfering
with Macco8s normal operations.
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
I'. GENER&L C#&R&CTERI%TIC% O! MULTI"LE C#OICE $UE%TION%
". very fle!ible form of ob9ective testing
0. almost as fle!ible as the essay
1. any essay item can be converted into a multiple choice.
*. can be made more or less sophisticated
0. ad9usting the comple!ity of the factual root
1. changing the manner in which the call of the question is worded# and
2. by posing options which are either comple! and close or simple and more
clearly discernible.
'. DI%TR&CTOR% &ND !OIL%
". ntroduction
0. Wrong 4ptions are called ,istractors or foils
1. " ,istractors is something which compellingly and confusingly attracts in the wrong
direction
2. &oil is something which serves to set off another thing to advantage or disadvantage
by contrasting with it.
3. ;ame is played this way- typical questions
a. Should test knowledge and reasoning
b. Shouldn8t be obvious
c. Shouldn8t use tricky devices or pu<<ling language
d. 4ften use ,istractors and foils
5. "ll the options are designed to give a look of superficial plausibility. Read them
carefully=
&ollowing are some potential pitfalls in multiple%choice questions and suggested
approaches to deal with them-
*. ncomplete definitions and arguments in the option
4ption states- Murder is the un9ustified killing of a human being.
$his is likely the wrong option because
Murder is the un9ustified killing of a human being with malice or forethought.
0. Don't complete the definition or argument in your mind and conclude that the
incomplete option is correct.
+. ,eal with the &acts given
0. "ssume nothing in addition to what has been established or given.
6.g. Prosecutor proves that >ohn shot Mary and that Mary died an hour later. s >ohn
guilty of murder:
?o- Must also prove that >ohn8s bullet caused Mary8s death. $he facts# as given# do not
demonstrate murder.
1. ,on8t ignore facts in the question=
We have been taught that an into!icated person cannot usually drive a car in a
reasonable manner. $he root (question) states that although Mary drank two quarts of
whiskey# she was driving her car in a reasonable manner when she collided with Paul.
Was Mary negligent:
2
?o- ?egligence is unreasonable conduct# since you were told that she was driving her
car in a reasonable manner# you must conclude that she was not negligent.
,. +ommon 6rrors
0. Wrong options are often based on common errors previously made by students.
1. Misunderstanding about the significance of legal e!pressions
a. Plaintiff goes to sleep in the middle of the road and is struck by defendant who sees
her in time but fails to take reasonable steps to avoid striking her.
(0) ,efendant wins because plaintiff had the last clear chance
(a) ?4- ,octrine of last clear chance applies only to plaintiff
6. 4verlooking the 4bvious
0. Sometime the option is so obviously correct that there is no rational e!cuse for
missing it. ,on8t ignore an obviously correct answer.
&. Plausible +reations
0. gnore meaningless garbage- Post @oc 6rgo Propter @oc
a. after which# therefore because of which is the name given to the error in reasoning
b. 6.g. wrong option would state Ait always rain after wash my car# so washing my car
makes it rains.A
1. ,ouble talk
a. " plaintiff could not be the holder of a certain easement because Aan incorporeal
hereditament lies only in grant.A
2. ,octrine or Rule never heard of means itBs probably incorrect.
;. /nfamiliar phrases
0. Multiple +hoice (M+) questions may use familiar concepts in non traditional words.
a. nstead of saying- A>ohn owed Mary a duty of reasonable care only if he created a
foreseeable risk to her.A
b. " correct option May say- A>ohn had no obligation to Mary unless it appeared that
>ohn8s conduct would in9ure her.A
1. remember: substance is more important than form.
'I. "L& T#E RIG#T ROLE
". Roles assigned in the stem may vary from >udge# "dvocate# or Scholar.
*. When you are asked to act as the >udge-
0. 6.g. Af >ohn sues Mary for battery# the court should find in favor of.. A
1. Start out with no particular result or conclusion in mind.
2. ,o not decide questions of facts.
3. *e alert for misstatements about facts in lawyers arguments.
5. ,o not try to resolve the issue until you have considered all the arguments presented
in the options.
C. 6!amine each option in turn.
a. "re facts and law accurately stated:
b. s conclusion offered consistent with the argument advanced:
D. The co((ect option is the one )he(e the a(gument a*+ance* is ,ase* on
accu(ate statements o- -act an* la) an* is consistent )ith the conclusion o--e(e*.
a. Select it# even though you may not like the result.
+. When you are asked to act as an "dvocate-
0. 6.g. AWhich of the following is the most effective argument in favor of Mary8s
position:A
1. 6!amine each option in turn.
a. s the law accurately stated:
b. "re the inferences on which it is based 9ustified by the facts given:
c. +ould the argument result in victory for the client:
2. The co((ect option is the one )he(e the a(gument a*+ance* is ,ase* on
accu(ate statements o- -act an* la) an* is consistent )ith the conclusion o--e(e*.
a. Select it# even though you don8t really believe that your client can win.
,. When you are asked to act as a scholar-
0. 6.g. A$he interest in *lackacre which >ohn had on the day after $estatri!8s death is
best described as a ..A
1. ,on8t try to decide or influence the outcome
2. /se your knowledge of the law to recogni<e the legal significance of a particular fact
or to select the most applicable rule
3. &ocus on a specific and limited issue
3
5. Resolve the issue in your mine and then e!amine each of the options carefully and
select the one which comes closest to the select you have already formulated.
a. Select it# even though you don8t really believe it8s 9ust.
'II. %TR&TEGIE% &ND T&CTIC% IN RE%OL'ING MULTI"LE C#OICE $UE%TION%
". Remember who will be tripped up on Multiple +hoice 'uestions
0. Panickers. People operating by instinct. andEor People who are unprepared and don8t
know the law.
1. Panickers
a. Panic inhibits memory from operating.
b. Panic leads to failure to read carefully.
2. People operating by instinct
a. Multiple +hoice questions are designed to apply legal principles to factual situations
in a rational# disciplined manner.
b. instinct will cause you to-
(0) overlook stated facts.
(1) let emotion take precedent over reasoning.
3. People who are unprepared and don8t know the law
a. Multiple +hoice questions require that you know the materials very well.
b. /nlike undergraduate# purely guessing at these questions is a high%risk proposition.
'III. #O. TO &N&L/E MULTI"LE C#OICE $UE%TION%
". "naly<ing the facts of the questions
0. Read +arefully- Read the stem (facts) first.
1. ,on8t "ssume &acts.
2. +hoose the simple interpretation- ,on8t make more comple! than they really are.
3. $rigger factors to watch for in reading M+ 'uestions.
a. Statutes
(0) conflicting common law rules# and no one ma9ority.
(1) see if you will ignore instinct.
(2) read the statute carefully and apply it mechanically.
b. Pay special attention to seemingly meaningless details about people.
*. @andling the specific inquiry in each question
0. Reword the inquiry
a. What is the most likely outcome:
(0) What will be the most probable result and why:
b. Which claim is most likely to succeed:
(0) Which is the only claim that can succeed on these facts%%and why:
c. What is ,efendant8s best defense:
(0) What would prevent the defendant from losing on these facts:
d. f party F loses# the most likely basis for the 9udgment is that ..
(0) Party F lost because ..
1. Summon the applicable test or concept immediately before reading the options
a. helps prevent you from being seduced into choosing a ,istractors
+. "naly<ing Responses % the process of elimination
0. $he best# and sometimes only# way to arrive at the correct answer is to use a process
of elimination. Simply put# you arrive at the correct answer by eliminating from
contention those which cannot be correct.
1. @ow to eliminate incorrect responses.
a. ssue%spotting is very important=
(0) Spot the issues in the facts themselves and be sensitive to nuances in responses
(1) ,on8t be tempted into believing that you won8t need to spot issues. "lthough you are
working with a limited universe# one of the options must identify and resolve a central
issue.
(2) Gou can use the responses to help identify what the central issue in the problem
must be.
(a) break the options down into their theoretical bases#
(b) if the option is true what rule of law does it promote.
b. *e meticulous in your reading of alternatives
(0) ;lance at the modifier quickly# then study the reasoning and finally there result
(1) if the reasoning is not correct then the response cannot be correct.
4
(2) ,ealing with (common) modifiers.
(a0 ,ecause1 since1 as- the answer can only be correct if-
i) the reasoning addresses and resolves a central issue or at least a more central issue
than the other response
ii) the facts in the question completely unequivocally satisfy the reasoning
a) if the reasoning says Abecause he was drunk#A the facts must state or infer
unequivocally that he was drunk
iii) the result is consistent with the reasoning
a) if the reasoning states because the statement was an admission by a party opponent
than the result must be admissible
(b) I-1 as long as- the answer can only be correct if-
i) reasoning need only be plausible under the facts
ii) the reasoning must address a central issue
iii) the result and the reasoning must agree
(c) Unless2 the answer can only be correct if-
i) reasoning is the only way the result cannot occur
a) if you think of even one way that the result might come about the response cannot be
correct.
2. @ow an option may be wrong
a. $hree ways-
(0) it mischaracteri<es the facts.
(1) it misstate the law.
(2) it ignores a central issue.
b. f an option does any one of the three# you can stop your analysis# eliminate it and
move on.
c. n order to be correct# option must be correct in every respect.
d. The Reasoning mischa(acte(i3es the -acts
(0) blatant contradiction
(1) goes beyond the facts
(2) assumes as true a fact in dispute
e. The Reasoning is legall4 )(ong.
(0) 4verstates the requirements of the law
(1) "ntiquated rules and those from inapplicable body of law
(2) Rules that do not apply to the fact
(3) 4ver inclusive statements of the law which happen to be correct on the facts
(5) 4verstate or understate the applicable legal standard
(C) +"H6"$- 4ptions stating only a snippet of a legal rule may okay if the snippet
addresses the central issue and there is no more complete option.
f. &n option can ,e )(ong ,ecause1 although it is -actuall4 an* legall4 co((ect1 it
is not as precise or effective as another option.
(0) "n option that is easier to prove is more likely to be correct than an option that is
difficult to prove.
(1) " more precise answer is better than a less precise answer-
(a) addresses the factual situation in more respects than another option.
(b) addresses more issues in a fact pattern than another option does.
,. @ow to guess intelligently when your reasoning fails you-
0. ,on8t be lured into unsophisticated guessing.
1. gnore some things you already know about ob9ective tests- don8t waste your time
searching for lapses in test construction.
2. ,on8t guess until you8ve eliminated all the definitely wrong responses.
3. &actors that should influence your guess-
a. Look at the facts and ask yourself# so what: $he issue that 9umps out is likely to be
the issue that the correct response addresses.
b. *eware of ,istractors# foils# seducers.
c. *eware of certainties- always# never# cannot must.
d. *eware of responses that rely on relationships between people.
e. *eware of focusing on results.
f. *e wary of answer choices from unrelated sub9ects or unstudied theories.
g. f two answers are opposites % one is probably true.
h. Look for a common issue# if you are asked to argue both ways.
i. Remember the rules of minority 9urisdictions.
5
9. ,on8t get bogged down on things you don8t know.
I5. #O. TO T&6E MULTI"LE C#OICE TE%T
". *e prepared physically and mentally. (Prepare well# get enough rest# eat well# etc.)
*. $iming- &igure how much time you have per question and stick to a schedule.
0. &or e!ample# on the M*6 (Multi%State *ar) you need to finish 0D questions per half
hour to complete the e!am.
1. n my e!ams# allot 5 minutes per question. Some will take you much less time# some
will take you a little longer.
+. Write in the e!am book the issues# key facts# etc.
,. ,on8t skip questions.
6. "nswer questions in an episodic fashion (individually). ,on8t let one question
influence the ne!t.
&. Maintain your concentration.
5. '&RIETIE% IN !ORM O! MULTI"LE C#OICE ITEM%
". Hery wide variety of forms for multiple choice items
*. Most significant form types
0. Simple fact pattern
1. +omple! fact pattern
2. $wo tier options
3. 4verlapping options
5. +omple! two tier options
C. 'uestion Series
D. +ommon option series
+. Illust(ation 712 %imple !act "atte(n
>ohn was fired from his 9ob. $oo proud to apply for unemployment benefits# he used his
savings to feed his family. When one of his children became ill# he did not seek medical
attention for the child at a state clinic because he did not want to accept what he
regarded as charity. 6ventually# weakened by malnutrition# the child died as a result of
the illness. >ohn has committed-
(") murder
(*) involuntary manslaughter
(+) voluntary manslaughter
(,) no form of criminal homicide
,. Illust(ation 782 Complex !act "atte(n
@omer and Purcell entered into a valid# enforceable written contract by which @omer
agreed to sell and Purcell agreed to purchase *lackacre# which was @omer8s residence.
4ne of the contract provisions was that after the closing @omer had the right to remain
in residence at *lackacre for up to 27 days before delivering possession to Purcell. $he
closing took place as scheduled. $itle passed to Purcell and @omer remained in
possession. Within a few days after the closing# the new house ne!t door which was
being constructed for @omer was burned to the ground# and at the end of the 27%day
period @omer refused to move out of *lackacre. instead# @omer tendered to Purcell a
monthly rental payment in e!cess of the fair rental value of *lackacre. Purcell re9ected
the proposal and that day brought an appropriate action to gain immediate possession
of *lackacre. $he contract was silent as to the consequences of @omer8s failure to give
up possession within the 27%day period# and the 9urisdiction in which *lackacre is
located has no statute dealing directly with this situation# although the landlord%tenant
law of the 9urisdiction requires a landlord to give a tenant 27 days notice before a tenant
may be evicted. Purcell did not give @omer any such 27%day statutory notice. Purcell8s
best legal argument in support of his action to gain immediate possession is that @omer
is a-
(") trespasser ab initio
(*) licensee
(+) tenant at sufferance
(,) tenant from month to month
6. Illust(ation 792 T)o Tie( Options
4n March 0# Ieller orally agreed to sell his land# @omestead# to *yer for J3C#777 to
6
be paid on March 20. *yer orally agreed to pay J15#777 of the purchase price to 'uincy
in satisfaction of a debt which Ieller said he had promised to pay 'uincy. 4n March 07#
*yer dictated the agreement to his secretary but omitted all reference to the payment of
the J15#777 to 'uincy. n typing the agreement# the secretary mistakenly typed in
J35#777 rather than J3C#777 as the purchase price. ?either *uyer nor Ieller carefully
read the writing before signing it on March 05. ?either noticed the error in price and
neither raised any question concerning omission of the payment to 'uincy. 25. n an
action by 'uincy against *yer for J15#777# which of the following is (are) correct:
. *yer could successfully raise the Statute of &rauds as a defense because the *yer%
Ieller agreement was to answer for the debt of another.
. *yer could successfully raise the Statute of &rauds as a defense because the *yer%
Ieller agreement was for the sale of an interest in land.
(") only
(*) only
(+) *oth and
(,) ?either nor
&. Illust(ation 7:2 O+e(lapping Options
,efendant was tried for robbery. Hictim and Worth were the only witnesses called to
testify. Hictim testified that ,efendant threatened her with a knife# grabbed her purse#
and ran off with it. Worth testified that he saw ,efendant grab Hictim8s purse and run
way with it but that he neither saw a knife nor heard any threats. 4n this evidence the
9ury could properly return a verdict of guilty of-
(") robbery only
(*) larceny only
(+) either robbery or larceny
(,) both robbery and larceny
;. Illust(ation 7;2 Complex T)o Tie( Options
n a lawsuit by ?orma against @arriet to recover JD57 as a brokerage fee# which of the
following arguments would effective support @arriet8s position:
. @arriet made no promise to pay such a fee.
. 6ven if it be assumed arguendo that @arriet made a promise to pay such a fee# there
was no bargained%for consideration for the promise.
. $here was no effective offer and acceptance between ?orma and @arriet.
(") and only
(*) and only
(+) and only
(,) # # and
@. Illust(ation 7<2 $uestion %e(ies
'uestions 52%55 are based on the following fact situation.
@arry met *ill# who was known to him to be a burglar# in a bar. @arry told *ill that he
needed money. @e promised to pay *ill J577 if *ill would go to @arry8s house the
following night and take some silverware. @arry e!plained to *ill that# although the
silverware was legally his# his wife would ob9ect to his selling it.
@arry pointed out his home# one of a group of similar tract houses. @e drew a floor plan
of the house that showed the location of the silverware. @arry said that his wife usually
took several sleeping pills before retiring# and that he would make sure that she took
them the ne!t night. @e promised to leave a window unlocked.
6verything went according to the plan e!cept that *ill# deceived by the similarity of the
tract houses# went to the wrong house. @e found a window unlocked# climbed in and
found silver where @arry had indicated. @e took the silver to the cocktail lounge where
the payoff was to take place. "t that point the police arrested the two men.
52. f @arry were charged with burglary# his best argument for acquittal would be that-
(") there was no breaking
(*) he consented to the entry
(+) no overt act was committed by him
(,) there was no intent to commit a felony
53. *ill8s best argument for acquittal of burglary is that he-
(") acted under a mistake of law
(*) had the consent of the owner
(+) reasonably thought he was in @arry8s house
(,) found the window unlocked
7
. Illust(ation 7=2 Common Option %e(ies
'uestion 20 and 21 each describe an offense. Select from the choices ("%,) the most
serious offense of which the defendant could be properly convicted.
(") involuntary manslaughter
(*) voluntary manslaughter
(+) murder
(,) none of the above
20. ,efendant# an avid fan of his home town football team# shot at the leg of a star
player for a rival team# intending to in9ure his leg enough to hospitali<e for a few weeks#
but not to kill him. $he victim died of loss of blood.
21. ,efendant# a worker in a metal working shop# had long been teasing Hincent# a
young colleague# by calling him insulting names and ridiculing him. 4ne day Hincent
responded to the teasing by picking up a metal bar and attacking ,efendant. ,efendant
could have escaped from the shop. @e parried the blow with his left arm# and with his
right hand struck Hincent a blow on his 9aw from which the young man died.
5I. '&RIETIE% IN N&TURE O! T#E $UE%TION
$here are four ma9or varieties of multiple choice items when classified by the nature and
thrust of the call of the question.
$here are tems that call for-
0. the one correct answer.
1. the one incorrect answer.
2. the best answer (relative to the other options only). and
3. the worst answer (relative to the other options only).
". 4ne +orrect "nswer
0. 4nly one of the options is correct.
1. it is absolutely correct.
2. the remaining options are incorrect.
3. 6ach option can be read as a single item in a trueEfalse cluster
a. with the added factor that the student knows that only one option is true while the
other options are false.
5. Student may derive the correct answer either-
a. by knowing it when he sees it or
b. by the process of elimination (i.e.# systematically eliminating incorrect or false
options).
C. 4ne +orrect "nswer- llustration
Which of the following statements is most accurate:
(") Payment of ,aniel of the J077 was a condition precedent to Paul8s duty of
performance.
(*) $he performances of Paul and ,aniel under the contract were concurrently
conditional.
(+) Payment by ,aniel of the J077 was a condition subsequent to Paul8s duty of
performance.
(,) Performance by Paul under the contract was a condition precedent to ,aniel8s duty
of payment of the J077.
D. Illust(ation 8
n a collision case# Plaintiff offers in evidence a photograph showing the scene of the
accident while the cars were still in place. " proper foundation must include# as a
minimum# testimony by which of the following:
(") $he photographer
(*) " person who was present at the time the photograph was taken.
(+) " person who observed the cars while they were still in place.
(,) " person in whose custody the photograph has been since it was developed.
*. 4ne ncorrect "nswer Hariety
0. " variation of the single correct answer.
1. $he negative form of the question which asks the student to pick out the one
falseEincorrect statement from a set of options.
2. $he remaining options# the ,istractors# are correct statements.
3. $he student can still use the process of elimination but this time# heEshe eliminates
the true statements.
5. 4ne ncorrect "nswer Hariety- Illust(ation
8
Which of the following crimes is L6"S$ likely to result in a felony murder conviction if
the victim dies during the perpetration of the crime:
(") rape
(*) robbery
(+) larceny
(,) kidnaping
C. Illust(ation 8
Which of the following statements regarding the legal effect of ,aniel8s illness is L6"S$
accurate:
(") ,aniel8s illness and the related development e!cused Paul from his obligation to
deliver the cards on or before ,ecember 05#
(*) Prompt notice by ,aniel to Paul of ,aniel8s recovery from illness was an implied
condition of Paul8s duty under the circumstances.
(+) Paul was under a duty of immediate performance of his promise to deliver the cards#
as of ,ecember 05# by reason of the e!press language of the contract and despite the
illness of ,aniel and the related developments.
(,) ,aniel8s conduct after his illness constituted a waiver of the necessity of Paul8s
performing on or before ,ecember 05.
+. 4ne *est "nswer
0. most fle!ible and effective variety of multiple choice items
1. permits more subtle gradations of correctEincorrectness by simply asking the student
to select the option which *6S$ responds to the interrogatory.
2. calls for relative 9udgments
3. does not require the e!aminer to draft options which are absolutely trueEcorrect and
falseEincorrect
5. "llows a wide variety of question types which can focus on various tasks and
competencies such as-
a. *est# more likely or most probable results
b. *est reasoning supporting a stated result.
c. *est argument supporting a stated position or a particular party.
d. *est defense.
e. applicable concept%%the concept# (e.g.# crime# cause of action# doctrine) which best
applies to a fact pattern or describes a stated result.
f. Most helpful facts%%the fact or facts which will M4S$ help a particular party or the
success of a particular argumentEposition.
g. *est of M4S$ 6&&6+$H6 tactic or approach.
C. *est Result Illust(ation
Roofer entered into a written contract with 4rissa to repair the roof of 4rissa8s home# the
repairs to be done Ain a workmanlike manner.A Roofer completed the repairs and took all
of his equipment away# with the e!ception of a 17%foot e!tension ladder# which was left
against the side of the house. @e intended to come back and get the ladder the ne!t
morning. "t that time# 4rissa and her family were away on a trip. ,uring the night# a
thief# using the ladder to gain access to an upstairs window# entered the house and
stole some valuable 9ewels. 4rissa has asserted a claim against Roofer for damages for
the loss of the 9ewels.
n her claim against Roofer# 4rissa will
(") prevail# because by leaving the ladder Roofer became a trespasser on 4rissa8s
property.
(*) prevail# because by leaving the ladder Roofer created the risk that a person might
unlawfully enter the house.
(+) not prevail# because the act of the thief was a superseding cause.
(,) not prevail# because 4rissa8s claim is limited to damages for breach of contract.
D. *est Reasoning Supporting a Stated Position-
$ess occupied an apartment in a building owned by Len. She paid rent of J015 in
advance each month. ,uring the second month of occupancy# $ess organi<ed the
tenants in the building as a tenants8 association and the association made demands of
Len concerning certain repairs and improvements the tenants wanted. When $ess
tendered rent for the third month# Len notified her that rent for the fourth and
subsequent months would be J177 per month. $ess protested and pointed uKout that all
other tenants paid rent of J015 per month. $hereupon# Len gave the required statutory
notice that the tenancy was being terminated at the end of the third month. *y an
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appropriate proceeding# $ess contests Len8s right to terminate. f $ess succeeds# it will
be because
(") a periodic tenancy was created by implication.
(*) the doctrine prohibiting retaliatory eviction is part of the law of the 9urisdiction.
(+) the J177 rent demanded violates the agreement implied by the rate charged to other
tenants.
(,) the law implies a term of one year in the absence of any e!press agreement.
,. *est "rgument Supporting a Stated Position or Particular Party
a. Illustration
Professor Merrill# in a lecture in her psychology course at a private university# described
an e!periment in which a group of college students in a neighboring city rushed out and
washed cars stopped at traffic lights during the rush hour. She described how people
reacted differently%%with shock# 9oy# and surprise. "t the conclusion of her report# she
said# AGou understand# of course# that you are not to undertake this or any other
e!periment unless you first clear with me.A &our of Merrill8s students decided to try the
same e!periment but not clear with Merrill.
4ne sub9ect of their e!periment# +arr# said# A was shocked. $here were two people on
each side of the car. "t first thought negatively. thought they were going to attack me
and thought of driving away. $hen quieted down and decided there were too many
dirty cars in the city anyway.A
+haritable immunity has been abolished in the 9urisdiction.
f +arr asserts a claim against the students who washed his car# his best theory is
(") assault.
(*) negligence.
(+) invasion of privacy.
(,) false imprisonment.
b. Illustration
Which of the following would be most important in deciding an action by 'uincy
against *yer for J15#777:
(") Whether the *yer%Ieller agreement was completely integrated.
(*) Whether *yer was negligent in not having carefully read the written agreement.
(+) Whether Ieller was negligent in not having carefully read the written agreement.
(,) Whether 'uincy was a party to the contract.
c. Illustration
" state accredits both public and private schools# licenses their teachers# and supplies
te!tbooks on secular sub9ects to all such schools. +ountry Schoolhouse# a private
school that offers elementary and secondary education in the state# denies admission to
all non% +aucasians. n the suit to en9oin as unconstitutional and continued racially
e!clusionary admissions policy of the +ountry Schoolhouse# which of the following is
the strongest argument AGAINS the school!
(") *ecause education is a public function# the +ountry Schoolhouse may not
discriminate on racial grounds.
(*) $he state is so involved in school regulation and support that the equal protection
clause of the &ourteenth "mendment is applicable to the school.
(+) $he state is constitutionally obligated to climate segregation in all public and private
educational institutions within the state.
(,) "ny school with teachers who are licensed by the state is forbidden to discriminate
on racial grounds.
0. *est ,efense
a. Illustration
,e!ter# a physician# and +aroline# his patient# had se!ual intercourse in his office.
+aroline is a married woman and if charged with the crime of adultery# her best defense
would be which of the following:
(") She promptly reported the incident to her husband# who condoned her conduct.
(*) ,e!ter induced her to believe that a natural cure through se!ual intercourse was
best for her condition.
(+) ,e!ter induced her to believe that she was pregnant# that childbirth would be
dangerous to her life# and that he could abort the pregnancy by se!ual intercourse.
(,) ,e!ter induced her to believe he was using a medical instrument.
b. Illustration
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While negligently driving his father8s uninsured automobile# 15%year%old "rthur crashed
into an automobile driven by *etty. *oth "rthur and *etty were in9ured. +harles# "rthur8s
father# erroneously believing that he was liable because he owned the automobile# said
to *etty- A will see to it that you are reimbursed for any losses you incur as a result of
the accident.A +harles also called Physician and told him to take care of *etty# and that
he# +harles# would pay the bill. "rthur# having no assets# died as a result of his in9uries.
,odge# one of "rthur8s creditors# wrote to +harles stating that "rthur owed him a
clothing bill of J177 and that he was going to file a claim against "rthur8s estate. +harles
replied- Af you don8t file a claim against "rthur8s estate# will pay what he owed you.A
n an action by *etty against +harles for wages lost while she was incapacitated as a
result of the accident# which of the following would be +harles8s best defense:
(") Lack of consideration
(*) Mistake of fact as to basic assumption
(+) Statute of &rauds
(,) ndefiniteness of +harles8s promise
1. "pplicable +oncept
a. Illustration
$he strongest constitutional basis for the enactment of a federal statute requiring
colleges and universities receiving federal funds to offer student aid solely on the basis
of need is the
(") police power
(*) war and defense power
(+) power to ta! and spend for the general welfare
(,) power to enforce the privileges and immunities clause of the &ourteenth "mendment
b. Illustration
f 6mployee was cutting a sheet of plywood# and while he was doing so# the saw blade
flew to pieces and severely cut 6mployee8s arm# and if 6mployee asserts a claim
against Storekeeper# the theory on which 6mployee is most likely to prevail is
(") strict liability in tort
(*) e!press warranty
(+) negligence# relying on res ipsa loquitur
(,) negligence# relying on the sale of an inherently dangerous product
c. Illustration
Suppose that before closing# the house on the property had been totally destroyed by
fire. n determining the rights of Sue and Peg# the court would most likely consider the
doctrine of equitable
(") marshaling
(*) sequestration
(+) subrogation
(,) conversion
d. Illustration
" state statute divides murder into degrees. &irst degree murder is defined as murder
with premeditation and deliberation or a homicide in the commission of arson# rape#
robbery# burglary or kidnaping. Second degree murder is all other murder at common
law. n which of the following situations in ,efendant most likely to be guilty of first
degree murder:
(") mmediately after being insulted by Robert# ,efendant takes a knife and stabs and
kills Robert.
(*) "ngered over having been struck by Sam# ,efendant buys rat poison and puts it in
Sam8s coffee. Sam drinks the coffee and dies as a result.
(+) ntending to in9ure &red# ,efendant lies in wait and# as &red comes by# ,efendant
strikes him with a broom handle. "s a result of the blow# &red dies.
(,) ,efendant# highly into!icated# discovers a revolver on a table. @e picks it up# points
it at "lice# and pulls the trigger. $he gun discharges# and "lice is killed.
2. Most helpful facts
a. Illustration
Professor >ames said to Mary ,igit# president of the F%L Secretarial Service# ASince you
folks have done good typing work for me in the past# promise to bring you the
manuscript for my new book.A AWhen:A asked Mary ,igit. A&irst chapter ne!t Monday#A
replied the Professor. AWouldn8t that be nice#A said Mary ,igit. $he following Monday
>ames# foregoing the services of another secretarial service brought chapter one to the
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F%L office but Mary ,igit refused to take it# saying they were all booked up for three
weeks. Which of the following facts or inferences would be most helpful in an action by
against F%L:
(") AWhenA and AWouldn8t that be niceA implied a promise to type the manuscript.
(*) >ames relied on Mary ,igit8s statement by bringing the manuscript to F%L.
(+) F%L had done good work for >ames in the past.
(,) >ames had foregone the services of another secretarial service.
b. Illustration
Philip was a 07%year%old boy. Macco was a company that sold new and used machinery.
Macco stored discarded machinery# pending sale for scrap# on a large vacant area it
owned. $his area was unfenced and was one%quarter mile from the housing
development where Philip lived. Macco knew that children frequently played in the area
and on the machinery. Philip8s parents had directed him not to play on the machinery
because it was dangerous. 4ne day Philip was playing on a press in Macco8s storage
area. $he press had several wheels# each geared to the other. Philip climbed on the
larger wheel# which was about five feet in diameter. Philip8s weight caused the wheel to
rotate# his foot was caught between two wheels that were set into motion# and he was
severely in9ured.
" claim for relief was asserted by Philip through a duly appointed guardian. Macco
denied liability and pleaded Philip8s contributory fault as a defense.
n determining whether Macco breached a duty to Philip# which of the following is the
most significant:
(") Whether the press on which Philip was in9ured was visible from a public way
(*) Whether the maintenance of the area for the storage of discarded machinery was a
private nuisance
(+) Whether the maintenance of the area for the storage of discard machinery was a
public nuisance
(,) Whether Macco could have eliminated the risk of harm without unduly interfering
with Macco8s normal operations.
3. Most 6ffective $actic of "pproach
a. Illustration
"ssume for the purpose of these questions that you are counsel to the state legislative
committee that is responsible for real estate laws in your state. $he committee wants
you to draft a statute governing the recording of deeds that fi!es priorities of title# as
reflected on the public record# as definitely as possible. Which of the following# divorced
from other policy considerations# would best accomplish this particular result:
(") 6liminate the requirement of witnesses to deeds.
(*) Make time of recording the controlling factor.
(+) Make irrebuttable the declarations in the deeds that valuable considerations was
paid.
(,) Make the protection of bona fide purchasers the controlling factor.
5. 4ne Worst "nswer
a. $his negative variety of the above form will require the student to select the
(0) W4RS$#
(1) L6"S$ LL6LGEprobable option or
(2) the option that ,46S ?4$ help# e!plain# or apply to the state problem.
b. 4ne Worst "nswer- Illustration
$he committee wants you to draft legislation to make all restrictions on land use
imposed by deeds (now or here%after recorded) unenforceable in the future so that
public land%use planning through <oning will have e!clusive control in matters of land
use. Which of the following is L6"S$ likely to be a consideration in the drafting of such
legislation:
(") +ompensation for property rights taken by public authority
(*) mpairment of contract
(+) Sovereign immunity
(,) Police power
c. Illustration
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Potts sued ,obbs on a produce liability claim. Louis testified for Potts. 4n cross%
e!amination# which of the following questions is the trial 9udge most likely to rule
improper.
(") Asn8t it a fact that you are Potts8 close friend:
(*) Asn8t it true that you are known in the community as ALouie the LushA because of
your addiction to alcohol:A
(+) A,idn8t you fail to report some income on your ta! return last year:A
(,) AWeren8t you convicted# seven years ago in this court# for obtaining money under
false pretenses:A
d. Illustration
" third state statute# enacted in 0MM7# makes criminal Athe utterance in any public place
of any blasphemy or sacrilege.A "ssume that there have been only a few recorded
prosecutions under the 0MM7 statute. ,oe is charged with violating its proscriptions. $he
charge is based wholly on the speech he delivered on the steps of the +linton State
+apitol. Which of the following constitutional defenses to this prosecution under the
0MM7 statute would be the L6"S$ likely to succeed:
(") $his statute is vague and# therefore# violates the due process clause of the
&ourteenth "mendment.
(*) $his statute is an establishment of religion and# therefore# violates the due process
clause of the &ourteenth "mendment.
(+) "pplication of this statute to ,oe denies him equal protection of the laws in violation
of the &ourteenth "mendment.
(,) "pplication of this statute to ,oe denies him freedom of speech in violation of the
&ourteenth "mendment.
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0. *ased on Michael >osephson# 6valuation and ;rading in Law School (0NM3) and
updates by Hernellia Randall and Rogelio Lasso.
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