MEE common mistakes
MEE · Understand the traps and how to avoid them.
On a sale-of-goods problem, applies common-law formation rules: says the buyer's acknowledgment with different terms was a counteroffer, or that no contract formed because the acceptance did not mirror the offer.
Common-law formation is studied first and the purchase-order, shipment, and invoice vocabulary of Article 2 facts reads like a classic offer-and-acceptance fight, so the candidate never pauses to characterize the transaction.
What to do instead
Spend one sentence up front: 'This is a sale of goods, so UCC Article 2 governs formation and §2-207 displaces the mirror-image rule.' Then run 2-207(1) (a definite expression of acceptance or a written confirmation, seasonably sent, operates as an acceptance even with additional or different terms), 2-207(2) (merchant versus non-merchant, material alteration, objection), and 2-207(3) if the writings conflict.
Writes that the court 'lacks jurisdiction over the defendant' as though a personal-jurisdiction or venue defect were as incurable as a subject-matter defect, and never notes that the defendant's failure to object forfeited the point.
The word 'jurisdiction' in 'personal jurisdiction' plus the memorized minimum-contacts test crowd out the procedural consequences of not objecting; waiver rules are read once in prep and rarely practiced on facts.
What to do instead
Open with a two-line waiver check: subject-matter jurisdiction is never waivable and may be raised by the court at any time; lack of personal jurisdiction, improper venue, and insufficient process or service are waived unless raised in a Rule 12 motion or in the answer under Rule 12(h)(1). Only then analyze purposeful availment, relatedness, and fair play for a defendant who preserved the objection.
Names the scrutiny tier and then substitutes a conclusion for the test, writing 'the statute is narrowly tailored to a compelling interest' without saying what the interest is or why a less restrictive alternative would not work.
The tiers are the memorable part of the doctrine, and under roughly 30 minutes of writing time the candidate treats the label as the answer, not realizing the points are in element-by-element application to the named facts.
What to do instead
Write three labeled sentences every time: the classification and the tier it triggers, with the triggering reason (suspect class, fundamental right, gender, or ordinary economic regulation); the government interest described concretely from the facts; and a means-end application naming a specific less restrictive alternative or a concrete over- or under-inclusiveness problem. Close with a one-sentence result.
Labels a statement 'hearsay' or 'not hearsay' in a single sentence, without identifying the declarant, the exact words, the purpose of the offer, and the rule number that admits or excludes it.
The conclusion feels like the analysis, and candidates evaluate the statement in the abstract instead of against the purpose for which the proponent offers it; the exceptions were memorized as a list rather than a checklist.
What to do instead
Use a fixed template: identify the declarant and the statement; ask whether it is offered for its truth (effect on the listener, verbal act, impeachment, or circumstantial non-truth use ends the inquiry); if for its truth, check the 801(d) exemptions; if hearsay, name the exception and prove each element on the facts, for example that 803(1) requires the statement to describe the event and be made during or immediately after it, with no time for reflection.
Resolves a competing-deeds problem by announcing who should win without naming the jurisdiction's recording statute, fixing the chronological order of conveyances, or testing the later grantee for value, good faith, and all three kinds of notice.
Recording acts are memorized as three definitions rather than as a mechanical sequence, the facts bury the statutory language in narrative detail, and 'recording' and 'notice' get conflated when time is short.
What to do instead
Run the same five steps every time: identify the statute from the language given (race, notice, or race-notice); list the deeds in chronological order; for each later grantee test BFP status (value, good faith, and actual, inquiry, and record notice); apply the statute's requirement (record first, no notice, or both); and apply the shelter rule to anyone taking from a protected BFP, noting wild deeds and estoppel by deed if they appear.
Finds proximate cause automatically once but-for cause is shown, writing 'the breach caused the injury, so the defendant is liable,' without identifying the risk that made the conduct negligent or asking whether this harm and this plaintiff fall within it.
Causation is treated as one box to tick, and the harm-within-the-risk inquiry has no memorized phrase attached to it, so unusual-harm facts such as intervening crimes, rescues, or eggshell plaintiffs go undiscussed.
What to do instead
State cause in two steps: but-for or substantial-factor cause, then the scope-of-risk sentence ('the risk that made D's conduct negligent was X; this harm is, or is not, within X'). Then address intervening versus superseding causes, the rescue doctrine, and the eggshell-plaintiff rule separately, and state whether comparative negligence reduces or bars recovery in the given jurisdiction.
Calls an agent's authority 'apparent' whenever the agent seemed to have power, without identifying a manifestation by the principal to the third party or the third party's reliance, and without separating express, implied, apparent, and inherent authority or testing ratification.
All four authority categories are defined in similar language and collapse into a general 'looked authorized' intuition; the facts usually quote the agent's own assurances, which do not create apparent authority.
What to do instead
Write four labeled checks: express (actual words), implied (incidental to the task or established by course of dealing), apparent (a manifestation by the principal to this third party plus reasonable reliance by the third party), and inherent (the position customarily carries the power). Treat ratification separately. If the principal's own conduct never reached the third party, the answer is inherent authority or no authority, not apparent authority.
Analyzes a police encounter without first classifying it, so a weapons frisk supported by reasonable suspicion is evaluated under probable cause, or a full arrest is upheld on reasonable suspicion alone.
The facts describe what the officers did, not what the encounter legally was, and candidates jump straight into search-and-seizure analysis with the wrong standard loaded.
What to do instead
Begin with a classification sentence: consensual encounter (no justification), investigative stop (reasonable suspicion of criminal activity), frisk (reasonable suspicion the person is armed and dangerous), or arrest (probable cause). Test the elements against the stated facts, then treat any search separately, identifying the warrant requirement or a named exception (consent, plain view, exigency, automobile, search incident to arrest, inventory) and stating the exclusionary consequence.
Admits 'he has a violent temper' because it is relevant, or bars it outright, without naming the 404(a) bar on propensity use, identifying a 404(b) permitted purpose, or noting the civil/criminal asymmetry and the 405 method of proof.
Relevance and character are studied as separate chapters and never merged into one analysis, so the candidate stops either at 'it is relevant' or at 'character evidence is inadmissible.'
What to do instead
Ask in order: is it offered to prove conduct in conformity with character (then 404(a) bars it unless a criminal-case exception applies)? If offered for another purpose, name it (motive, intent, identity, absence of mistake, common plan) and run the 403 balance, plus the prosecutor's pretrial notice duty in criminal cases. Then state the permissible method, 405(a) reputation or opinion on direct and specific instances on cross, or 405(b) where character is an element.
Finds federal jurisdiction over a state claim joined to a diversity case simply by invoking 'the same case or controversy,' overlooking the §1367(b) carve-out for claims by plaintiffs against parties joined under Rules 14, 19, 20, or 24, and overlooking the timing rule for measuring citizenship and the amount in controversy.
The §1367(a) grant is the sentence everyone remembers; the (b) exception, the (c) discretionary factors, and the timing rule are treated as footnote material and cut first when time runs short.
What to do instead
Write the three-part test: (a) is the claim part of the same Article III case or controversy; (b) if jurisdiction rests solely on §1332, does the claim fall inside the (b) carve-out, which removes supplemental jurisdiction over claims by plaintiffs against Rule 14, 19, 20, or 24 joined parties; (c) should the court decline under §1367(c)? Then state that citizenship and the amount in controversy are measured as of filing, and analyze any Rule 20 joinder of a nondiverse plaintiff before reaching the merits.