MA Bar common mistakes
MA Bar · Understand the traps and how to avoid them.
On essay questions, writing a general discussion of the doctrinal rule (e.g., all of personal jurisdiction, all of the hearsay exceptions) instead of applying it to the specific facts and reaching a conclusion for each party.
Candidates memorize black-letter law outlines and, under time pressure, reproduce them because that feels productive and safe; they also fear committing to a conclusion that might be wrong. Massachusetts essays are graded on issue spotting tied to facts and reasoned conclusions, so rule-dumping earns little credit and burns the clock.
What to do instead
Before writing, spend 60–90 seconds outlining: list each party, each claim, and the one or two elements in genuine dispute. Then write in the form 'Rule (one sentence) → because [specific fact] → therefore [conclusion for this party].' Ban yourself from stating any rule you do not immediately apply to a fact. Practice by rewriting old outlines into fact-anchored paragraphs and timing 30-minute drills.
Treating every constitutional question as a generic balancing test, without first classifying the right, the state action, and the correct level of scrutiny (or the correct specific test, such as the Dormant Commerce Clause or the Contracts Clause).
Bar prep compresses constitutional law into slogans, so candidates default to 'reasonable and rationally related' or vague 'balancing' language, and they skip threshold questions like whether there is state action at all or whether the challenged law is facially neutral but discriminatory in effect.
What to do instead
Use a fixed analytical checklist on every con law answer: (1) Is there state action? (2) What right or classification is involved? (3) Which test applies - rational basis, intermediate, strict, undue burden, procedural due process (Mathews v. Eldridge factors), or a specific clause test? (4) Apply each factor to the facts. (5) State who wins. Drill the checklist until it is automatic, and always name the test explicitly in the answer.
Missing the Statute of Frauds or a UCC gap-filler issue in a contracts fact pattern because the question seems to be about breach or remedies, and failing to state which terms are missing and which default rule supplies them.
Candidates read the call of the question narrowly and answer only what is asked, overlooking threshold enforceability issues. They also conflate common-law and UCC rules, applying the perfect tender rule to a services contract or the mirror image rule to a sale of goods.
What to do instead
On every contracts essay, run a three-step screen before anything else: (1) Is this goods (UCC) or services/land/common law? (2) Is there a writing requirement, and does an exception (specially manufactured goods, admission, part performance, payment and acceptance) apply? (3) What terms are missing, and which gap-filler (reasonable price, reasonable time, course of dealing/performance, usage of trade) fills them? Write the answer in that order.
Analyzing a criminal law question only under the completed offense, ignoring inchoate liability, accomplice liability, and the felony-murder or misdemeanor-manslaughter rules, and failing to apply the correct mens rea to each element.
Fact patterns are written so that the obvious crime is incomplete or the defendant is a secondary party; candidates stop at 'attempted murder' without asking whether attempt merged, whether the accomplice had the required intent, or whether the underlying felony is independent of the killing.
What to do instead
For each defendant, list every possible offense and every possible mode of liability (principal, accomplice, conspirator, attempt, solicitation) in a grid. For each, state the mens rea required and the fact that satisfies or defeats it. Always check merger (attempt merges into completed crime; conspiracy does not), the felony-murder limitations (inherently dangerous felony, res gestae, death during commission), and the defense of abandonment or withdrawal.
In evidence questions, identifying a hearsay statement and then failing to test it against the correct exception, or forgetting that a statement offered to show effect on the listener or for impeachment is not hearsay at all.
Candidates treat 'hearsay' as a single label and jump to a favorite exception (usually excited utterance or present sense impression) without checking the exception's elements. They also forget the non-hearsay categories and the Confrontation Clause overlay in criminal cases.
What to do instead
Use a decision tree every time: (1) Is it an out-of-court statement? (2) Offered for its truth? If no, state the non-hearsay purpose (effect on listener, verbal act, impeachment, circumstantial evidence of state of mind). (3) If yes, name the exception and recite its elements, then match facts to each element. (4) If the declarant is unavailable and the case is criminal, check the Confrontation Clause (testimonial statement, prior opportunity to cross-examine). Write the tree out in practice until it takes under a minute.
Conflating recording acts, notice, and priority in real property questions, and failing to determine whether a later purchaser is a BFP and which recording statute (race, notice, race-notice) governs.
Candidates memorize the three statute types but do not apply them step by step, and they forget to check whether the jurisdiction is a title or lien theory state, whether the mortgage was recorded, and whether the buyer had inquiry or record notice.
What to do instead
For every priority question, build a timeline: each conveyance, its date, whether consideration was paid, whether the grantee had actual, inquiry, or record notice, and the recording date. Then state the statute type and apply it mechanically. For mortgages, separately identify title versus lien theory and the effect on the debtor's right to possession and redemption.
In torts, skipping the element-by-element duty analysis (especially for omissions, landowner duties, and pure economic loss) and jumping straight to comparative negligence or damages.
Candidates know the negligence formula and assume duty is always present; they miss special duty rules (trespasser, licensee, invitee; affirmative duty to rescue; special relationships) and the distinction between misfeasance and nonfeasance.
What to do instead
Write the elements in order - duty, breach, causation (actual and proximate), damages - and for duty, always ask: what is the relationship between the parties, and which specific duty rule applies? State the standard of care (reasonable person, professional, child, landowner category) explicitly. Then address defenses and apportionment. Do not discuss damages until duty, breach, and causation are each analyzed.
Treating agency, partnership, corporation, and LLC questions as interchangeable, applying the wrong entity's default rules (e.g., partnership liability to a corporation's shareholders or LLC member liability to a general partnership's joint and several liability).
The rules overlap in outline form, and candidates under time pressure use whichever entity rule they remember first. They also forget that agency authority (actual, apparent, inherent) determines whether the principal is bound, independent of the entity question.
What to do instead
Before writing, name the entity and the governing default rule set in one sentence. Then analyze authority in three layers: actual (express or implied), apparent, and ratification. For liability, distinguish contract (principal bound by authorized acts) from tort (respondeat superior, scope of employment) and from owner liability (piercing the veil, member-managed LLC, general partner joint and several liability). Practice with a one-page comparison chart of the four entity types.
In trusts and estates, misclassifying future interests (remainder versus executory interest, vested versus contingent, indefeasibly vested) and failing to apply the Rule Against Perpetuities to the correct interest.
The vocabulary is technical and similar-sounding, and candidates learn definitions without practicing classification on new grants. They also apply the RAP to vested interests or to interests that are already certain to vest.
What to do instead
For every grant, draw the interest tree: grantor, life tenant, remaindermen, and any executory interests, labeling each as present or future and vested or contingent. Then ask: which interest could vest too remotely? Apply the RAP only to contingent remainders and executory interests, using the 'lives in being plus 21 years' test, and state whether the interest is void or saved by a wait-and-see or cy pres statute if the jurisdiction has one.
On Massachusetts-specific questions, applying general common-law or MBE rules where Massachusetts has a distinct rule (e.g., the Massachusetts Rules of Civil Procedure, the Massachusetts Probate and Family Court, equitable distribution versus the Massachusetts approach to marital property, or state-specific evidentiary and procedural rules) without flagging the state rule.
Candidates prepare primarily from national outlines and assume the MBE rule controls. Massachusetts essays and the state portion test state-specific doctrine, and the differences are exactly what graders look for.
What to do instead
Maintain a one-page 'Massachusetts differences' sheet organized by domain (civil procedure, family law, evidence, trusts and estates, real property) and review it weekly. On any essay where a state-specific rule may apply, write the general rule, then explicitly state the Massachusetts rule and which governs. Practice with Massachusetts-style fact patterns that require you to identify the state rule before applying it.