Everything’s leading up to it.
It’s a burden on your shoulders throughout law school:
Passing the bar.
The moment you get the “you passed” message, you’ll want to do a victory dance—and go celebrate!
Yet earning that “pass” requires a thorough understanding of Torts (for both the essays + MBE). The MBE (Multistate Bar Examination) comprises 175 questions, and 25 of them are Torts MBE questions.
And of these, approximately 50% test negligence.
As for the other half, the exam drafters present you with:
- Intentional torts
- Strict liability
- Products liability
- Other torts, such as defamation, nuisance, etc.
To conquer this exam with the utmost confidence, you can get BarMD’s comprehensive MBE DNA program today.
Make sure that you commit the following MBE tips to memory, keep seeking out more strategies—and practice, practice, practice!
1. Don’t Assume Negligence Per Se
A common—and understandable—error bar-takers make:
When approaching a Torts question, they assume that the right answer to a question that features a statute (and a violation of that statute by the defendant) is liability, based on the principle of negligence per se.
But this is a rookie mistake.
Even if you come across a question where the defendant has violated a statute, don’t pick an answer choice that states they’ll be liable …unless you can answer a definite “YES” to all of the following questions:
- Is the plaintiff in the class of persons that the statute was enacted to protect?
- Did the plaintiff suffer the type of injury the statute was enacted to prevent?
- Was the violation the actual and proximate cause of the plaintiff’s injuries?
If you go through this checklist, you’ll probably find that, more often than not, negligence per se is NOT the right answer.
One more time, in other words:
Just because the question features a statute, don’t assume negligence per se.
2. Read These Particular MBE Torts Questions Extra-Carefully
Negligence defenses and products liability questions require an ultra-critical mindset. Look out for the following when reading a Torts fact pattern—it’ll serve you well.
Remember that you’re told to assume pure comparative negligence is the standard—unless you’re expressly told otherwise.
So, if the question mentions that another standard applies (e.g., contributory negligence), it’s for a reason, and the correct answer choice is likely to turn on that other standard.
If you’re not told otherwise, you should assume that the standard for a products liability question is strict products liability.
However, the bar examiners can be sneaky—sometimes, they mention that a different theory is being tested in the question itself.
For example: Plaintiff sues Defendant for negligent products liability.
And, on occasion, they bury the mention of the theory in the fact pattern.
Circle any reference to negligence or intent, and don’t lose sight of those when taking the MBE.
3. Do This Before Even Looking at the Answer Choices
When it comes to defamation, ask the following questions before taking a peek at the answer choices. This technique can help you save time on the MBE—and choose the right answer.
The correct answer to a defamation question often depends on selecting:
1. The correct state of mind (e.g., malice or negligence)
2. The correct type of damages (e.g., general damages or special damages)
If you encounter a defamation question, jot down:
1. The type of plaintiff. This will help ensure you pick out the right state of mind.
2. The type of defamation. This will help ensure you pick out the right type of damages.
Take this note before you survey the answer choices.
That way, you can swiftly eliminate any answer choices that don’t match.
4. Strict Liability? Be strict with it.
This one’s straightforward.
If the question does not feature:
- a wild animal
- an abnormally dangerous activity (be on the lookout for blasting and excavation activities)
- or a product
…then the right answer is not strict liability.
Don’t be fooled by suggestions that common carriers and/or innkeepers, parents, or employers are subject to strict liability—they’re not.
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