MBE common mistakes
MBE · Understand the traps and how to avoid them.
Raising a lack of personal jurisdiction, improper venue, or insufficient service of process in a second pre-answer motion or in an amended answer after filing a first Rule 12 motion that addressed only failure to state a claim.
Candidates learn the Rule 12(b) defenses as a list and treat them as freely reorderable, overlooking the consolidation and waiver rule that forces certain defenses into the first response.
What to do instead
Before analyzing any Rule 12 motion, list the 12(b)(2)-(5) defenses and confirm whether each was raised in the first motion or answer; if not, state that it is waived under Rule 12(h)(1) and do not reach the merits.
Striking down a content-neutral permit ordinance, a commercial-speech disclosure rule, or a time-place-manner restriction by reflexively applying strict scrutiny because 'speech is involved.'
Candidates memorize strict scrutiny as the default for First Amendment questions and skip the threshold classification of the regulation.
What to do instead
Classify the regulation first: content-based vs. content-neutral, commercial vs. noncommercial, unprotected category, or public forum; then select strict, intermediate, or rational-basis review and say explicitly why the chosen tier applies.
Analyzing a private university's disciplinary expulsion, a private employer's termination, or a private association's membership decision under procedural due process or equal protection without identifying any government actor or entanglement.
Constitutional-law fact patterns often mention 'due process' language, prompting candidates to apply the doctrine before checking the state-action prerequisite.
What to do instead
Run a state-action screen at the start of every due-process or equal-protection question: identify a public function, close entanglement, government coercion, or a statute authorizing the private conduct; if none exists, conclude no constitutional claim.
Treating a merchant's signed written offer to buy or sell goods as revocable because the other party gave no consideration, rather than applying the UCC firm-offer rule.
Candidates default to common-law option analysis and forget that Article 2 displaces the consideration requirement for merchant firm offers.
What to do instead
Identify whether the contract is for goods and whether the offeror is a merchant; if a signed writing gives assurances that the offer will be held open, state that it is irrevocable for the stated time or a reasonable time, subject to the three-month cap.
Calling a party's failure to satisfy a condition precedent a breach of contract and awarding expectation damages, instead of asking whether the condition excused the other party's duty to perform.
Conditions and promises look alike in contract language, and candidates conflate 'duty to perform' with 'event that triggers a duty.'
What to do instead
Classify each term as a promise, a condition, or both; if it is a condition, analyze excuse, waiver, and forfeiture before any breach analysis, and only then ask whether damages or restitution is the appropriate remedy.
Labeling as larceny a defendant who lawfully possessed property and only later formed the intent to keep it, or labeling as embezzlement a defendant who never had lawful possession.
Theft offenses are distinguished by the timing of intent and the nature of custody versus possession, and candidates use the labels interchangeably.
What to do instead
Build a timeline: when did the defendant obtain the property, was possession lawful, and when was intent formed? Use that sequence to select larceny, embezzlement, false pretenses, or robbery.
Moving directly to suppress evidence from an unlawful search without first determining whether the defendant had a reasonable expectation of privacy in the place searched or the item seized.
Candidates treat 'unlawful search' as the whole analysis and skip the threshold standing inquiry.
What to do instead
Start every suppression question with standing: identify the defendant's possessory or privacy interest; if standing fails, deny suppression without reaching the warrant or exception analysis.
Excluding an out-of-court statement as hearsay when it is offered to show effect on the listener, as a verbal act, or as a prior inconsistent statement under oath at a prior proceeding.
Candidates apply a single definition of hearsay and do not ask what the statement is being offered to prove.
What to do instead
State the purpose of the offer before ruling: if it is relevant independent of truth, it is non-hearsay; if it is a prior statement under oath, analyze Rule 801(d)(1)(A) and whether the declarant testifies.
Awarding priority to the first grantee to record without identifying whether the jurisdiction uses race, notice, or race-notice recording and without applying the shelter rule.
Candidates assume a race-notice statute or rely on 'first to record' as a universal rule.
What to do instead
Identify the recording act type from the facts, then test the later purchaser's notice and good faith; if the later purchaser loses, check whether a subsequent transferee can take shelter.
Finding a bystander liable for failing to rescue or warn without identifying a special relationship, a duty undertaken voluntarily, or creation of the peril.
Candidates assume a general duty of reasonable care applies to all foreseeable harm and forget the no-duty-to-rescue default.
What to do instead
Begin the negligence analysis with duty: state the general no-duty rule, then list the recognized exceptions and apply only those supported by the facts before moving to breach.