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AK Bar practice questions

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Question 1Multistate Bar Examination (MBE)

A homeowner signed a writing promising to pay a neighbor $5,000 "in consideration of the neighbor's past kindness in shoveling my walk last winter." The neighbor now sues for payment. What is the most likely result?

  1. The neighbor wins, because the writing is signed and unambiguous.
  2. The homeowner wins, because the amount exceeds the small-claims limit.
  3. The neighbor wins, because moral obligation always supports a promise.
  4. The homeowner wins, because past consideration is not valid consideration. Correct answer.

Explanation

Consideration must be bargained for; past acts already performed cannot be consideration for a later promise. A moral obligation alone does not make a gratuitous promise enforceable.

Question 2Multistate Bar Examination (MBE)

A store advertised a coat for $100. A customer walked in and said, "I accept your offer and will pay $100." The store refused to sell. In a breach of contract action, the customer will most likely:

  1. Recover damages, because the customer's acceptance formed a contract.
  2. Recover damages, because the advertisement was an offer.
  3. Lose, because the customer did not sign a writing.
  4. Lose, because an advertisement is generally an invitation to deal rather than an offer. Correct answer.

Explanation

Advertisements are ordinarily invitations to negotiate, not offers, unless they are definite and leave nothing open to negotiation. Without an offer, the customer's statement cannot create a contract.

Question 3Multistate Bar Examination (MBE)

A defendant intentionally swung a bat at a plaintiff standing nearby, intending only to frighten him. The bat missed, but the plaintiff suffered severe emotional distress requiring treatment. In a battery action, the defendant will most likely be:

  1. Liable, because transferred intent applies from assault to battery. Correct answer.
  2. Liable, because intent to cause apprehension satisfies battery intent.
  3. Not liable, because the defendant intended only to frighten.
  4. Not liable, because there was no physical contact.

Explanation

Intent to commit assault transfers to battery when a harmful or offensive contact results. The defendant intended apprehension of contact, and that intent supplies the intent for the resulting battery.

Question 4Multistate Bar Examination (MBE)

A landowner posted "NO TRESPASSING" signs and built a fence around his property. A hiker, ignoring the signs, crossed the land. The landowner may recover nominal damages because the landowner's interest protected by trespass is:

  1. The right to the reasonable value of the land's use.
  2. The right to use and enjoy the land free from interference.
  3. The right to exclusive possession of the land. Correct answer.
  4. The right to be free from unreasonable risk of harm.

Explanation

Trespass to land protects the possessor's right to exclusive possession. Nominal damages are available even without actual harm because the invasion itself is the wrong.

Question 5Multistate Bar Examination (MBE)

A driver sped through a red light and struck a pedestrian. The pedestrian had stepped into the crosswalk without looking. Under a pure comparative negligence rule, the pedestrian's recovery will be:

  1. Reduced only if the pedestrian's fault exceeded the driver's.
  2. Full, because the driver violated a statute.
  3. Reduced in proportion to the pedestrian's share of fault. Correct answer.
  4. Barred entirely because the pedestrian was negligent.

Explanation

Pure comparative negligence reduces a plaintiff's recovery by the plaintiff's percentage of fault regardless of how it compares to the defendant's. No total bar applies.

Question 6Multistate Bar Examination (MBE)

A homeowner kept a pet tiger in an unlocked cage in her yard. A delivery driver, lawfully on the premises, was mauled. In the driver's action against the homeowner, the driver must prove:

  1. Only that the homeowner kept a wild animal that caused harm. Correct answer.
  2. That the driver was unaware of the tiger's presence.
  3. That the homeowner failed to use reasonable care.
  4. That the homeowner knew the tiger was dangerous.

Explanation

Owners of wild animals are strictly liable for harm caused by the animal, regardless of care, to persons lawfully on the premises. No showing of the owner's knowledge or negligence is required.

Question 7Multistate Bar Examination (MBE)

A manufacturer sold a power saw without a guard. A user was injured and sues in strict products liability. The user must establish that the saw was defective and that the defect:

  1. Resulted from the manufacturer's failure to warn.
  2. Was the sole cause of the user's injury.
  3. Was known to the manufacturer at the time of sale.
  4. Existed when the product left the manufacturer's control. Correct answer.

Explanation

Strict products liability requires proof that the product was defective when it left the defendant's control and that the defect caused the harm. The plaintiff need not prove negligence or knowledge.

Question 8Multistate Bar Examination (MBE)

A tenant rented an apartment under a one-year lease. Midway through the term, the landlord sold the building. The new owner seeks to evict the tenant. The tenant's best defense is that:

  1. The lease was not recorded, so it is void against the buyer.
  2. The new owner assumed the lease by purchasing the building. Correct answer.
  3. The tenant paid rent in advance to the former landlord.
  4. A lease is a contract that binds only the original parties.

Explanation

A leasehold is an interest in land, and a purchaser of the reversion takes subject to the existing lease. The new owner stands in the landlord's shoes and cannot evict a tenant in good standing.

Question 9Multistate Bar Examination (MBE)

A grantor conveyed "to my brother for life, then to my brother's children." At the time of the conveyance, the brother had two children. The brother now has a third child. Who holds the remainder interest?

  1. The two children who were alive at the conveyance.
  2. All of the brother's children, including the one born later. Correct answer.
  3. The brother's estate.
  4. The grantor.

Explanation

A gift to a class such as "children" generally includes after-born members of the class unless the grantor clearly intended to close the class at an earlier time. The remainder is in the children as a class.

Question 10Multistate Bar Examination (MBE)

A buyer contracted to purchase a house, with closing set for June 1. On May 1, the seller sold the house to a third party. The buyer sues for breach. The buyer may seek:

  1. Rescission and return of the deposit only.
  2. Punitive damages for the seller's bad faith.
  3. Specific performance, because land is unique. Correct answer.
  4. Only nominal damages, because title never passed.

Explanation

Because each parcel of land is considered unique, specific performance is a standard remedy for breach of a land sale contract. The buyer may compel conveyance where the seller still can perform.

Question 11Multistate Bar Examination (MBE)

A person entered a bank, pointed a toy gun that looked real, and demanded money. The teller handed over cash, believing the gun was real. The person is charged with robbery. The prosecution must prove that the person:

  1. Intended to use force if necessary and took property by threat. Correct answer.
  2. Planned the robbery more than a day in advance.
  3. Actually possessed a dangerous weapon.
  4. Caused the teller physical harm.

Explanation

Robbery requires a taking of property from the person or presence of another by force or threat of force with intent to permanently deprive. A toy gun that appears real can constitute a threat of immediate force.

Question 12Multistate Bar Examination (MBE)

A defendant was charged with burglary. The prosecution proved that he broke into a closed store at 2 a.m. and stole cash. To convict for common-law burglary, the prosecution must also prove that the defendant:

  1. Used force against a person inside.
  2. Was armed with a deadly weapon.
  3. Intended to commit a felony at the time of entry. Correct answer.
  4. Knew the store was unoccupied.

Explanation

Common-law burglary requires a breaking and entering of a dwelling of another at night with intent to commit a felony therein. The intent must exist at the moment of entry.

Question 13Multistate Bar Examination (MBE)

A defendant was charged with murder. The evidence showed he acted in the heat of passion after discovering his spouse's infidelity. The jurisdiction follows the common law. The defendant's best argument is that:

  1. The killing was involuntary manslaughter because it was unintentional.
  2. The killing was justified as defense of others.
  3. The provocation was a complete defense to homicide.
  4. The provocation reduced the crime to voluntary manslaughter. Correct answer.

Explanation

Adequate provocation negates malice and reduces an intentional killing from murder to voluntary manslaughter. The provocation must be such that a reasonable person would lose self-control.

Question 14Multistate Bar Examination (MBE)

A defendant was charged with larceny of a bicycle. He took the bicycle intending to use it for a day and return it. Under the common law, the defendant is:

  1. Guilty of larceny, because he took the bicycle without consent.
  2. Guilty of embezzlement, because he later formed intent.
  3. Guilty of robbery, because he used the bicycle.
  4. Not guilty of larceny, because he lacked intent to permanently deprive. Correct answer.

Explanation

Larceny requires the intent to permanently deprive the owner of the property at the time of taking. Intent to borrow temporarily negates the required intent.

Question 15Multistate Bar Examination (MBE)

A witness testified at trial that the defendant told her, "I robbed the bank." The defendant objects on hearsay grounds. The statement is:

  1. Admissible as a statement against interest only if the declarant is unavailable.
  2. Inadmissible, because it is hearsay not within any exception.
  3. Inadmissible, because it was not made under oath.
  4. Admissible as an opposing party's statement. Correct answer.

Explanation

A statement made by a party opponent offered against that party is not hearsay under the Federal Rules. The defendant's own admission may be offered against him regardless of availability.

Question 16Multistate Bar Examination (MBE)

At trial, the plaintiff offers a certified copy of a public record showing the defendant's conviction for fraud. The defendant objects. The record is:

  1. Admissible to prove the fact of conviction under the public records exception. Correct answer.
  2. Admissible only if the convicting judge testifies.
  3. Inadmissible because it is testimonial.
  4. Inadmissible because convictions are always excluded in civil cases.

Explanation

Certified public records, including records of convictions, fall within the public records exception to the hearsay rule. They may be used to prove the fact of conviction.

Question 17Multistate Bar Examination (MBE)

A prosecutor seeks to introduce evidence that the defendant previously committed a similar crime to show he acted in conformity therewith. Under the Federal Rules, such evidence is:

  1. Admissible only in civil cases.
  2. Admissible if the prior crime is similar enough.
  3. Inadmissible for any purpose whatsoever.
  4. Inadmissible to prove conduct in conformity, though admissible for other purposes such as motive or identity. Correct answer.

Explanation

Character evidence offered to prove conduct in conformity is generally barred, but evidence of prior acts may be admitted for a permissible purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

Question 18Multistate Bar Examination (MBE)

An attorney is representing a client in a contract dispute. The attorney learns that the opposing party is unrepresented and contacts that party directly to discuss settlement. The attorney's conduct is:

  1. Proper, because settlement discussions are encouraged.
  2. Improper, because settlement offers must be in writing.
  3. Improper, because a lawyer may not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer. Correct answer.
  4. Proper, if the attorney identifies himself as a lawyer.

Explanation

Under the Model Rules, a lawyer may not communicate about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter, absent consent. The rule protects the client-lawyer relationship.

Question 19Multistate Bar Examination (MBE)

A client tells her attorney, "I plan to rob the bank on Main Street tomorrow." The attorney advises the client not to do it. The attorney may disclose the client's statement if:

  1. The statement was made in the presence of a third party.
  2. The client has not paid the retainer.
  3. The attorney wishes to withdraw from the representation.
  4. The client refuses to follow the advice and the lawyer reasonably believes disclosure is necessary to prevent the crime. Correct answer.

Explanation

Model Rule 1.6 permits disclosure of confidential information to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm, and other rules permit disclosure to prevent certain crimes.

Question 20Multistate Bar Examination (MBE)

A plaintiff sued a defendant in federal court based on diversity of citizenship. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The amount in controversy is $100,000. The defendant moves to dismiss for lack of subject-matter jurisdiction. The motion should be:

  1. Denied, because state courts have exclusive jurisdiction.
  2. Granted, because the plaintiff's claim does not involve a federal question.
  3. Granted, because the amount is too low.
  4. Denied, because diversity jurisdiction exists. Correct answer.

Explanation

Federal diversity jurisdiction requires complete diversity of citizenship and an amount in controversy exceeding $75,000. Both requirements are met here.

Question 21Multistate Bar Examination (MBE)

A defendant who resides in State A is sued in federal court in State B. The defendant is served with process while temporarily visiting State B. The defendant has no other contacts with State B. Under the Due Process Clause, personal jurisdiction over the defendant is:

  1. Proper, because the defendant is a citizen of another state.
  2. Proper, because service was made within the forum.
  3. Improper, because transient presence alone does not satisfy minimum contacts. Correct answer.
  4. Improper, because the defendant did not consent.

Explanation

In the modern approach, personal jurisdiction requires minimum contacts with the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Mere transient presence, without more, is generally insufficient.

Question 22Multistate Bar Examination (MBE)

A plaintiff filed a complaint in federal court. The defendant failed to respond within the required time. The plaintiff may seek:

  1. Dismissal with prejudice.
  2. Summary judgment by default.
  3. An order compelling arbitration.
  4. A default judgment under Rule 55. Correct answer.

Explanation

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, the plaintiff may apply for entry of default and then for a default judgment under Rule 55.

Question 23Multistate Bar Examination (MBE)

A plaintiff sued a defendant for negligence arising from an auto accident. The defendant wishes to call a witness who will testify that the plaintiff told her, "I ran the red light." The plaintiff objects. The statement is:

  1. Admissible as an opposing party's statement. Correct answer.
  2. Admissible only if the witness is unavailable.
  3. Inadmissible because it is opinion testimony.
  4. Inadmissible because it is hearsay.

Explanation

A statement made by a party and offered against that party is not hearsay under Rule 801(d)(2). The plaintiff's own admission about running the red light may be offered against her.

Question 24Multistate Bar Examination (MBE)

A consumer signed a contract with a fitness club containing a clause requiring all disputes to be resolved by binding arbitration. The consumer later sued in court. The fitness club moves to compel arbitration. The court will most likely:

  1. Grant the motion if the clause is valid and covers the dispute. Correct answer.
  2. Deny the motion because the consumer did not initial the clause.
  3. Deny the motion because arbitration clauses are unconscionable per se.
  4. Grant the motion only if the amount in controversy exceeds $75,000.

Explanation

The Federal Arbitration Act reflects a strong policy favoring enforcement of valid arbitration agreements. A court will compel arbitration where a valid agreement exists and the dispute falls within its scope.

Question 25Multistate Bar Examination (MBE)

A testator executed a will leaving all property to his two children equally. He later married and had a third child. Under the doctrine of pretermitted heir statutes, the third child may:

  1. Take a share as if the testator had died intestate, unless the omission was intentional. Correct answer.
  2. Take nothing, because the will is valid and unrevoked.
  3. Take only if the will is formally revoked.
  4. Take the entire estate, because the will predates the child's birth.

Explanation

Pretermitted heir statutes protect children born after the execution of a will who are not provided for. Such a child typically takes an intestate share unless the omission was intentional.

Question 26Multistate Bar Examination (MBE)

A landowner granted a neighbor an easement 'for access to the lake' across the landowner's property. The easement was properly recorded. The landowner later sold the property to a buyer who knew of the easement. The neighbor continued to use the path to reach the lake. The buyer now seeks to block the neighbor's use. Which of the following is the neighbor's best argument?

  1. The neighbor has a license that is revocable at will by the buyer.
  2. The easement is an express easement that runs with the land and binds the buyer. Correct answer.
  3. The neighbor has acquired a prescriptive easement by using the path.
  4. The neighbor has an easement by necessity because the path is the only access to the lake.

Explanation

An express easement that is properly recorded and that the buyer takes with notice binds subsequent owners because it runs with the land. The neighbor's best argument is that the recorded express easement is enforceable against the buyer.

Question 27Multistate Bar Examination (MBE)

A property owner conveyed a parcel 'to Alice for life, then to Alice's heirs.' Alice is alive and has one child. Under the modern rule, what interest do Alice's heirs have?

  1. They have a contingent remainder because they are not yet determined.
  2. They have no interest because the remainder violates the Rule Against Perpetuities.
  3. They have a vested remainder in fee simple. Correct answer.
  4. They have a reversionary interest held by the grantor.

Explanation

Under the modern rule, a grant 'to A for life, then to A's heirs' creates a remainder in A's heirs that is vested in a class subject to open, and the heirs are determined at A's death. The interest does not violate the Rule Against Perpetuities because it must vest, if at all, at A's death.

Question 28Multistate Bar Examination (MBE)

A landowner and a buyer signed a written contract for the sale of a house for $300,000. The contract described the property and was signed by both parties but did not state a closing date. The buyer later refused to proceed. The landowner sues for specific performance. What is the landowner's best argument?

  1. The contract is enforceable only if the buyer admits the agreement in court.
  2. The contract is unenforceable because it lacks a closing date, which is a material term.
  3. The contract is unenforceable because the buyer did not pay any consideration.
  4. The contract is enforceable because it is in writing and signed by the party to be charged, and a reasonable time for closing will be implied. Correct answer.

Explanation

Under the Statute of Frauds, a contract for the sale of land must be in writing and signed by the party to be charged. A closing date is not essential; if omitted, a reasonable time is implied. Therefore, the contract is enforceable and specific performance may be available.

Question 29Multistate Bar Examination (MBE)

A tenant signed a two-year lease for an apartment. After one year, the tenant moved out without notifying the landlord and stopped paying rent. The landlord did not re-enter or attempt to re-let the premises for three months, then found a new tenant. In an action for rent, what is the landlord's likely recovery?

  1. The landlord can recover nothing because the tenant's abandonment terminated the lease.
  2. The landlord can recover rent for the remainder of the term because the tenant abandoned the lease.
  3. The landlord can recover damages for the period the apartment remained vacant, but has a duty to mitigate by attempting to re-let. Correct answer.
  4. The landlord can recover only the rent accrued before the abandonment.

Explanation

Under the modern rule, a landlord has a duty to mitigate damages upon a tenant's abandonment by making reasonable efforts to re-let the premises. The landlord may recover rent for the period the premises remain vacant due to the tenant's breach, but cannot sit idly by.

Question 30Multistate Bar Examination (MBE)

A defendant was charged with battery after pushing a stranger during an argument. The defendant claims he acted in self-defense. Which of the following facts, if true, would best support the defendant's claim?

  1. The stranger had previously insulted the defendant's family.
  2. The stranger had raised his fist and stepped toward the defendant before the push. Correct answer.
  3. The defendant was the first to raise his voice in the argument.
  4. The defendant was larger and stronger than the stranger.

Explanation

Self-defense requires a reasonable belief that force is necessary to protect against an imminent use of unlawful force. The stranger's raised fist and step forward would create a reasonable belief of imminent harm, supporting the defense.

Question 31Multistate Bar Examination (MBE)

A defendant was charged with larceny for taking a wallet from a victim's pocket. The defendant intended to return the wallet after using the victim's credit card. Under the common law, which element of larceny is most likely to be at issue?

  1. Asportation
  2. Trespassory taking
  3. Intent to permanently deprive Correct answer.
  4. Personal property of another

Explanation

Larceny requires the intent to permanently deprive the owner of the property. If the defendant intended to return the wallet after temporary use, the intent to permanently deprive may be lacking, though using the credit card could constitute a separate offense.

Question 32Multistate Bar Examination (MBE)

A defendant was charged with arson for burning down a house. The prosecution proved that the defendant set fire to the house, which was owned by the defendant's landlord, and that the house was insured. The defendant claimed the fire was accidental. Which of the following is the most likely reason the prosecution charged arson rather than malicious burning?

  1. Arson requires that the property be that of another.
  2. Arson requires the burning of a dwelling house, and the structure was a house. Correct answer.
  3. Arson requires that the fire cause personal injury.
  4. Arson requires proof of intent to defraud an insurer.

Explanation

At common law, arson is the malicious burning of a dwelling house of another. The structure being a house satisfies the dwelling requirement, which distinguishes arson from other burning offenses.

Question 33Multistate Bar Examination (MBE)

A defendant was charged with receiving stolen property. The prosecution proved that the defendant received a television that had been stolen and that the defendant knew it was stolen. The defendant claims he did not know the television was stolen. Which of the following is the most likely outcome?

  1. The defendant will be acquitted because the television was not in his possession.
  2. The defendant will be convicted because knowledge can be inferred from the circumstances. Correct answer.
  3. The defendant will be acquitted because the prosecution must prove actual knowledge.
  4. The defendant will be convicted because receiving stolen property is a strict liability offense.

Explanation

Knowledge that property is stolen is an essential element of receiving stolen property, but it may be proved by circumstantial evidence. If the circumstances would lead a reasonable person to believe the property was stolen, the jury may infer knowledge.

Question 34Multistate Bar Examination (MBE)

A defendant was charged with murder. At trial, the defendant seeks to introduce evidence that the victim had a reputation for violence. The defendant claims he acted in self-defense. Is the evidence admissible?

  1. Yes, because the victim's violent reputation is relevant to the defendant's state of mind and the reasonableness of his belief in the need for self-defense. Correct answer.
  2. No, because reputation evidence is always inadmissible to prove conduct.
  3. No, because the defendant must show specific acts of violence by the victim.
  4. Yes, because it proves the victim was the initial aggressor.

Explanation

When self-defense is raised, evidence of the victim's violent reputation is admissible to show the defendant's state of mind and the reasonableness of his belief that force was necessary. The evidence is relevant to the defendant's perception at the time.

Question 35Multistate Bar Examination (MBE)

A plaintiff sued a defendant for negligence. At trial, the plaintiff calls a witness to testify that the defendant said, 'I ran the red light.' The defendant objects on hearsay grounds. The statement is:

  1. Inadmissible because it is hearsay not within any exception.
  2. Admissible only if the defendant is unavailable.
  3. Inadmissible because it is a statement against interest.
  4. Admissible as an admission by a party-opponent. Correct answer.

Explanation

A statement made by a party-opponent is nonhearsay and admissible when offered against that party. The defendant's statement that he ran the red light is an admission and can be used against him.

Question 36Multistate Bar Examination (MBE)

A defendant is on trial for robbery. The prosecution offers evidence that the defendant was convicted of theft five years earlier. The defendant objects. The evidence is most likely:

  1. Admissible only if the defendant testifies.
  2. Admissible to show the defendant's propensity to commit robbery.
  3. Inadmissible because prior convictions are never admissible.
  4. Admissible to impeach the defendant's character for truthfulness if the theft involved dishonesty. Correct answer.

Explanation

Under the Federal Rules of Evidence, prior convictions for crimes involving dishonesty or false statement are admissible to impeach a witness's character for truthfulness, subject to the court's discretion under Rule 403. Theft can qualify if it involved dishonesty.

Question 37Multistate Bar Examination (MBE)

An attorney is representing a client in a lawsuit. The attorney learns that the opposing party is represented by counsel. The attorney wishes to communicate directly with the opposing party to discuss a settlement. Under the Model Rules of Professional Conduct, the attorney may:

  1. Communicate directly because the opposing party is not the attorney's client.
  2. Not communicate with the opposing party without the consent of that party's counsel. Correct answer.
  3. Communicate directly because settlement discussions are not adversarial.
  4. Communicate directly if the attorney discloses the communication to opposing counsel afterward.

Explanation

Model Rule 4.2 prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless the other lawyer consents. This rule protects the client-lawyer relationship.

Question 38Multistate Bar Examination (MBE)

A client tells her attorney that she intends to commit perjury at her upcoming trial. The attorney advises the client not to do so but the client insists. Under the Model Rules, what is the attorney's best course of action?

  1. Do nothing because the attorney-client privilege prevents any action.
  2. Allow the client to testify falsely because the attorney must advocate zealously.
  3. Seek to withdraw from the representation if the client persists in the fraud. Correct answer.
  4. Disclose the client's intention to the court immediately.

Explanation

Under Model Rule 1.16(a)(1), a lawyer must withdraw if the representation will result in a violation of the rules or law. If the client insists on committing perjury, the lawyer must seek to withdraw, and may disclose confidential information to the extent necessary to comply with the rules.

Question 39Multistate Bar Examination (MBE)

A plaintiff sued a defendant in federal court based on diversity of citizenship. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The amount in controversy is $100,000. The plaintiff later moved to add a claim against a third-party defendant who is a citizen of State A. The third-party defendant objects to jurisdiction. What is the most likely result?

  1. The court must dismiss the claim because it destroys diversity jurisdiction.
  2. The court may exercise supplemental jurisdiction over the claim against the third-party defendant because it arises from the same case or controversy. Correct answer.
  3. The court must dismiss the entire action because complete diversity is lacking.
  4. The court may exercise jurisdiction only if the amount in controversy exceeds $75,000 for the third-party claim.

Explanation

Under 28 U.S.C. § 1367, a federal court may exercise supplemental jurisdiction over claims that are part of the same case or controversy as the claim within its original jurisdiction. The addition of a non-diverse party does not necessarily destroy diversity if the claim is supplemental and the original jurisdiction is proper.

Question 40Multistate Bar Examination (MBE)

A defendant who resides in State A is sued in federal court in State B. The defendant is served with process while temporarily in State B. The defendant challenges personal jurisdiction. What is the most likely result?

  1. The court lacks personal jurisdiction because the defendant was only temporarily in the state.
  2. The court has personal jurisdiction only if the defendant consented to service.
  3. The court lacks personal jurisdiction because the defendant is not a citizen of State B.
  4. The court has personal jurisdiction because the defendant was served while physically present in the state. Correct answer.

Explanation

Under traditional due process principles, a state may exercise personal jurisdiction over a nonresident who is served with process while physically present in the state, regardless of the length of stay. This is known as transient jurisdiction.

Question 41Multistate Bar Examination (MBE)

A plaintiff filed a complaint in federal court. The defendant failed to respond within the required time. The plaintiff moves for default judgment. The court may:

  1. Enter default judgment if the plaintiff's claim is for a sum certain and the defendant has been defaulted. Correct answer.
  2. Deny default judgment because the defendant has a right to a jury trial.
  3. Enter default judgment without a hearing in all cases.
  4. Enter default judgment only if the defendant consents.

Explanation

Under Federal Rule of Civil Procedure 55, when a party fails to plead or otherwise defend, the clerk may enter default. If the claim is for a sum certain, the clerk may enter judgment; otherwise, the plaintiff must apply to the court, which may hold a hearing.

Question 42Multistate Bar Examination (MBE)

A plaintiff sued a defendant for negligence arising from an auto accident. The defendant wishes to call a witness who will testify that the plaintiff told her, 'I was not paying attention and ran the red light.' The plaintiff objects on hearsay grounds. The statement is:

  1. Admissible as an admission by a party-opponent. Correct answer.
  2. Admissible only if the plaintiff is unavailable.
  3. Inadmissible because it is hearsay.
  4. Inadmissible because it is a statement against interest.

Explanation

A statement made by a party-opponent is nonhearsay and admissible when offered against that party. The plaintiff's statement that she ran the red light is an admission and can be used against her.

Question 43Multistate Bar Examination (MBE)

A consumer signed a contract with a fitness club containing a clause requiring all disputes to be resolved by binding arbitration. The consumer later sued the fitness club in court for injuries sustained at the club. The fitness club moves to compel arbitration. What is the most likely result?

  1. The court will compel arbitration only if the consumer agrees.
  2. The court will deny arbitration because the claim involves personal injury.
  3. The court will compel arbitration because the Federal Arbitration Act favors enforcement of arbitration agreements. Correct answer.
  4. The court will deny arbitration because the clause is unconscionable.

Explanation

The Federal Arbitration Act provides that arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Personal injury claims are generally arbitrable unless the contract is invalid.

Question 44Multistate Bar Examination (MBE)

A testator executed a will leaving all property to his two children equally. He later married and had a third child. Under the common law, what is the effect of the subsequent marriage and birth on the will?

  1. The will remains valid as written.
  2. The will is revoked entirely.
  3. The will is valid only if the new spouse consents.
  4. The will is revoked by operation of law as to the new spouse and child. Correct answer.

Explanation

Under the common law, a subsequent marriage and the birth of a child revoke a will by operation of law, unless the will makes provision for the new spouse and child. The revocation is partial, affecting only the omitted heirs.

Question 45Multistate Bar Examination (MBE)

A grantor conveyed a parcel 'to my brother for life, then to my brother's children.' At the time of the conveyance, the brother had no children. The brother later had a child. What interest does the child have?

  1. A contingent remainder because the child was not in existence at the time of the conveyance. Correct answer.
  2. A reversionary interest.
  3. A vested remainder subject to open.
  4. No interest because the child was not alive at the conveyance.

Explanation

A remainder to the children of a living person creates a contingent remainder because the children are not yet determined and may never be born. The child born later has a contingent remainder that may vest upon the brother's death.

Question 46Multistate Bar Examination (MBE)

A defendant was charged with burglary. The prosecution proved that he broke into a closed store at 2 a.m. and stole cash. To obtain a conviction for burglary, the prosecution must also prove:

  1. That the defendant actually committed a felony after entry.
  2. That the defendant intended to commit a felony at the time of entry. Correct answer.
  3. That the store was a dwelling.
  4. That the defendant used force to enter.

Explanation

Burglary at common law requires a breaking and entering of a dwelling at night with the intent to commit a felony therein. The intent must exist at the time of entry; actual commission is not required.

Question 47Multistate Bar Examination (MBE)

A defendant was charged with murder. The evidence showed he acted in the heat of passion after discovering his spouse's infidelity. The defendant requests a jury instruction on voluntary manslaughter. The court should:

  1. Deny the instruction because infidelity is never adequate provocation.
  2. Give the instruction only if the defendant testifies.
  3. Deny the instruction because the defendant acted with malice aforethought.
  4. Give the instruction because the evidence supports a finding of adequate provocation. Correct answer.

Explanation

Voluntary manslaughter requires a killing committed in the heat of passion upon adequate provocation. Discovering a spouse's infidelity has traditionally been considered adequate provocation, so the defendant is entitled to the instruction if the evidence supports it.

Question 48Multistate Bar Examination (MBE)

A person entered a bank, pointed a toy gun that looked real, and demanded money. The teller handed over cash, believing the gun was real. The person is charged with robbery. What is the most likely result?

  1. Conviction, because the toy gun was used to create fear and the teller believed it was real. Correct answer.
  2. Acquittal, because the teller was not actually afraid.
  3. Conviction, because the person intended to commit a felony.
  4. Acquittal, because the gun was not real.

Explanation

Robbery requires a taking by force or intimidation. The use of a toy gun that appears real can constitute intimidation if the victim reasonably believes it is real. The person's intent to take by intimidation supports a robbery conviction.

Question 49Multistate Bar Examination (MBE)

A witness testified at trial that the defendant told her, 'I robbed the bank.' The defendant objects on hearsay grounds. The statement is:

  1. Admissible as an admission by a party-opponent. Correct answer.
  2. Inadmissible because it is a statement against interest.
  3. Admissible only if the defendant is unavailable.
  4. Inadmissible because it is hearsay.

Explanation

A statement made by a party-opponent is nonhearsay and admissible when offered against that party. The defendant's statement that he robbed the bank is an admission and can be used against him.

Question 50Multistate Bar Examination (MBE)

A prosecutor seeks to introduce evidence that the defendant previously committed a similar crime to show he acted in conformity with that character. The evidence is most likely:

  1. Inadmissible because it is propensity evidence. Correct answer.
  2. Inadmissible because it is hearsay.
  3. Admissible only if the prior crime resulted in a conviction.
  4. Admissible because it shows a pattern of behavior.

Explanation

Under Federal Rule of Evidence 404(b), evidence of a prior crime is not admissible to prove the character of a person in order to show action in conformity therewith. Such propensity evidence is generally excluded.