LSB Bar Exam Core common mistakes
LSB Bar Exam Core · Understand the traps and how to avoid them.
On a personal-jurisdiction question, analyzing only minimum contacts and never addressing whether the exercise of jurisdiction would be fair and reasonable, or treating the state long-arm statute and the due-process inquiry as a single step.
Bar outlines often list the 'contacts' prong first and most prominently, so candidates under time pressure stop once they find purposeful availment and never reach the fairness factors or the statutory basis for jurisdiction.
What to do instead
Use a fixed two-track checklist for every jurisdiction question: (1) statutory authorization under the long-arm provision, and (2) constitutional minimum contacts plus fairness (burden on defendant, forum state's interest, plaintiff's interest, efficiency, shared substantive interests). Write one sentence on each prong before concluding, even when contacts clearly exist.
On a subject-matter-jurisdiction question, conflating diversity jurisdiction with federal-question jurisdiction and forgetting that diversity requires complete diversity on both sides of the controversy and an amount in controversy exceeding $75,000 that is not merely speculative.
Candidates memorize the two categories as labels without rehearsing the elements under each, and the examiners deliberately include a same-state party or a claim for an indeterminate amount to test exactly this.
What to do instead
For every federal-court question, write the elements out: complete diversity (no plaintiff shares state citizenship with any defendant, measured at filing), amount in controversy exceeding $75,000 in good faith, and for federal question, a federal issue appearing on the face of a well-pleaded complaint. Then check supplemental jurisdiction separately.
On an Erie or choice-of-law question, applying federal common law to a substantive issue or applying state law to a clearly procedural matter without stating the outcome-determinative test and the federal-policy counterweight.
The Erie doctrine is taught as a slogan ('substance versus procedure'), and candidates never practice classifying a concrete issue such as a statute of limitations, a burden of proof, or a damages cap.
What to do instead
Memorize the operational test: if a federal rule or statute directly conflicts, it governs if valid; otherwise, ask whether ignoring state law would be outcome-determinative and whether it would encourage forum shopping or create inequitable administration of the laws. Practice classifying five recurring issues in advance.
On a standing question, analyzing only injury in fact and skipping causation and redressability, or confusing standing with prudential doctrines such as third-party standing and the political-question doctrine.
Injury in fact is the most vivid element and gets all the attention, while causation and redressability are abstract and are often assumed rather than argued.
What to do instead
Use the three-element litany every time (injury in fact, fairly traceable causation, likely redressable by a favorable ruling), then add a separate sentence on whether a prudential limitation applies. For taxpayer and citizen standing, state the general rule of no standing and the narrow exception.
On a First Amendment question, applying strict scrutiny reflexively to any speech regulation without first classifying the forum (traditional public, designated public, nonpublic) and the type of speech (content-based, content-neutral time-place-manner, commercial, obscene, incitement).
Candidates remember 'strict scrutiny' as the headline rule and never drill the forum-classification step, which determines the applicable standard before scrutiny is even reached.
What to do instead
Write a three-step template: (1) identify the forum and its standard, (2) classify the regulation as content-based or content-neutral, (3) apply the corresponding test with its specific elements (narrow tailoring and compelling interest versus intermediate scrutiny with ample alternatives). Practice on a permit scheme and a buffer zone.
On an offer-and-acceptance question, treating preliminary negotiations, price quotations, or advertisements as offers without analyzing whether the terms are sufficiently definite and whether the offeror manifested a present intent to be bound.
The fact patterns are written to look like offers, and candidates answer from the surface language rather than from the doctrinal test for definiteness and commitment.
What to do instead
Before labeling anything an offer, state the two-part test: present intent to be bound and definite terms (parties, subject matter, quantity, price, time). Then apply the specific presumptions: advertisements are generally invitations, price quotes are generally invitations, and a promise to keep an offer open requires consideration or a signed writing under the UCC firm-offer rule.
On a UCC sale-of-goods question, applying common-law mirror-image acceptance rules and the perfect-tender rule instead of the UCC's battle-of-the-forms provision and the rule that a seasonable expression of acceptance operates as an acceptance even with different or additional terms.
Most candidates learn contract law through common-law doctrine first, and under time pressure the common-law default is retrieved instead of the goods-specific rule.
What to do instead
At the top of every contracts answer, write one line: 'Goods or services?' If goods, run the UCC track: acceptance with additional terms is generally an acceptance, additional terms between merchants drop out if they materially alter the deal, and the perfect-tender rule is displaced by the UCC's opportunity to cure.
On a Fourth Amendment question, analyzing only whether a search occurred and skipping the warrant requirement, the exceptions, and the separate question of whether the exclusionary remedy applies.
The fact pattern foregrounds the police conduct, so candidates argue reasonableness and stop, never reaching the warrant or exception analysis or the good-faith and inevitable-discovery limitations.
What to do instead
Use a four-step sequence: (1) was there a search or seizure (reasonable expectation of privacy or physical restraint), (2) was there a warrant or a recognized exception (consent, search incident to arrest, automobile, plain view, exigency, inventory), (3) was the scope of the intrusion proportionate, (4) does exclusion apply or does a good-faith or attenuation exception defeat it.
On an evidence question, reciting a hearsay exception by name without stating its elements, and failing to separate the hearsay question from the separate confrontation question when the declarant is unavailable in a criminal case.
Exception names are easy to memorize and feel sufficient, and the Confrontation Clause is taught in a different course, so candidates never link the two.
What to do instead
For every out-of-court statement, write: (1) is it offered for its truth, (2) if so, which exception applies and what are its elements, (3) if the declarant is unavailable and the case is criminal, is the statement testimonial and did the defendant have a prior opportunity to cross-examine. Name the exception only after stating its elements.
On a real-property recording or priority question, determining who recorded first without first classifying the jurisdiction as race, notice, or race-notice, and without checking whether the later purchaser had actual, inquiry, or record notice.
Candidates memorize the three statutes as labels but never practice applying each to the same fact pattern, and notice is treated as a single undifferentiated idea.
What to do instead
Before ranking the parties, write the jurisdiction's statute type, then list each purchaser's notice status under all three heads (actual, inquiry, record). Rank by the statute's rule, not by chronology. Practice the same facts under all three statute types to see how the answer changes.
On a negligence question, stating the duty and the breach and then concluding liability without analyzing actual cause, proximate cause, and the available defenses.
Duty and breach are the vivid, fact-rich parts of the problem, while causation is abstract and defenses are often omitted entirely under time pressure.
What to do instead
Use a fixed four-element structure (duty, breach, causation, damages) with causation split into actual cause (but-for or substantial factor) and proximate cause (foreseeability and the intervening-cause analysis). Then add a separate paragraph on comparative fault, assumption of risk, or immunities where the facts raise them.
On a torts question involving an intentional tort or defamation, importing negligence standards such as the reasonable-person duty or actual harm, and forgetting the specific elements that distinguish the tort.
Negligence is the most heavily practiced tort and its vocabulary crowds out the intent, causation, and damages elements unique to battery, assault, false imprisonment, and defamation.
What to do instead
Before analyzing, name the tort and list its elements from memory (for battery: intent, harmful or offensive contact, causation; for defamation: defamatory statement, of and concerning the plaintiff, publication, damages or per se category, plus fault and falsity for public figures). Check each element explicitly against the facts.
On a business-associations question, applying corporate rules to a partnership or LLC, or analyzing a corporate officer's authority without distinguishing actual, apparent, and inherent authority.
Corporate law dominates the study materials, and candidates default to board-and-shareholder analysis even when the entity is a general partnership with joint and several liability.
What to do instead
First line of every answer: identify the entity form and its governing default rules. Then for any authority question, analyze actual authority (express and implied), apparent authority (manifestation by the principal and reliance by the third party), and inherent authority, and state which one the facts support.
On a professional-responsibility question, answering from personal ethics or general fairness rather than from the specific Model Rule, and failing to spot the conflict-of-interest or confidentiality issue embedded in the facts.
The scenarios feel like ordinary judgment calls, so candidates reason from intuition and never cite or apply a rule, and conflicts of interest are easy to overlook when the representation looks routine.
What to do instead
For every professional-responsibility question, name the governing rule before analyzing (for example, competence, confidentiality, conflicts, fees, or candor to the tribunal). Run a conflict check on every new client or matter and a confidentiality check on every disclosure, then state the required action and any exception such as informed consent or the crime-fraud exception.