PA Bar common mistakes
PA Bar · Understand the traps and how to avoid them.
On MBE-style Civil Procedure questions, the candidate analyzes personal jurisdiction under the 'minimum contacts plus fair play and substantial justice' formula without first identifying whether the case is in federal court and whether the applicable rule is Rule 4(k)(1)(A) (borrowing the forum state's long-arm reach) or Rule 4(k)(1)(B)/(C) or a federal long-arm statute, and never checks the 14th Amendment versus 5th Amendment source of the limit.
Bar prep drills the International Shoe fairness factors as an abstract test, so candidates reflexively recite contacts and fairness even when the real question is whether the federal court has a rule-based grant of authority at all, or whether a federal statute authorizes nationwide service. The two-step structure (rule authorization, then constitutional limit) gets collapsed into one step, and the answer choice that is 'constitutionally fine but not authorized by Rule 4(k)' looks correct.
What to do instead
Before any jurisdiction analysis in a federal question, write two lines at the top of your scratch paper: (1) 'Rule 4(k) authority?' and (2) 'Constitutional limit: which amendment?' Then answer in that order. Memorize the four Rule 4(k) grants (4(k)(1)(A) state borrowing; 4(k)(1)(B) 100-mile bulge for parties joined under Rule 14 or 19; 4(k)(1)(C) when a federal statute so provides; 4(k)(2) federal-question alien defendant with no state court of general jurisdiction). If the facts say 'served within the state' or 'waived service,' stop and ask whether the issue is really venue, transfer under 28 U.S.C. §1404, or forum non conveniens instead.
The candidate treats every constitutional challenge as a single 'strict scrutiny' question, applying strict scrutiny to commercial speech, time/place/manner regulations, and content-neutral conduct laws, and never states the threshold classification (content-based vs. content-neutral, fundamental right vs. economic regulation, suspect vs. quasi-suspect class) before selecting a tier.
First-year constitutional law teaching emphasizes strict scrutiny, and candidates memorize tiers as labels rather than as a classification exercise. Under time pressure, the tier that sounds most protective feels safest, and the answer choice that invalidates the law on strict scrutiny is attractive even when the law is a valid content-neutral regulation under intermediate scrutiny (e.g., a buffer zone around a clinic, an ordinance limiting signs by size).
What to do instead
For every Con Law question, write the classification first: 'Content-based? Yes/No,' 'Fundamental right? Yes/No,' 'Suspect class? Yes/No,' 'Commercial speech? Yes/No.' Then apply the corresponding test with the specific government interest and tailoring named in the facts. Practice the specific doctrinal tests that are commonly misapplied: Ward v. Rock Against Racism for time/place/manner (narrow tailoring, not least restrictive means), Central Hudson for commercial speech, and the undue burden standard for abortion regulations. If a law is content-neutral, strict scrutiny is almost always the wrong answer choice.
On Contracts questions involving the UCC, the candidate applies common-law mirror-image acceptance and the preexisting-duty rule to a sale of goods, or applies UCC 2-207 firm-offer and additional-terms rules to a services contract, without first classifying the contract as goods or services and identifying the merchant status of each party.
The MBE mixes goods and services facts, and candidates default to whichever rule they reviewed most recently. Merchant status is often stated indirectly ('a dealer in such goods,' 'a homeowner') and gets missed, which changes the 2-207(2) outcome and the firm-offer rule under 2-205. The resulting analysis is internally consistent but applied to the wrong body of law.
What to do instead
Make the first line of every Contracts answer: 'Goods or services? UCC Article 2 or common law?' and the second line: 'Merchant or non-merchant as to each party?' Then apply the correct acceptance rule: common-law mirror image and mailbox rule versus UCC 2-206 (reasonable manner of acceptance) and 2-207 (definite expression of acceptance plus additional or different terms). For 2-207, walk the three steps explicitly: (1) is the response a definite expression of acceptance? (2) between merchants, do the additional terms become part of the contract unless objected to, materially altered, or the offer limited acceptance? (3) different terms: state the majority and minority rules and pick the one the question's jurisdiction implies.
On Criminal Procedure questions, the candidate analyzes a Fourth Amendment search or seizure without identifying the actor (public police versus private party), the location (home, automobile, person, open fields, curtilage), and the applicable warrant exception, and then jumps to the exclusionary rule without addressing standing, the good-faith exception, or inevitable discovery.
Candidates memorize the warrant exceptions as a list and try to match facts to a label, but the exam tests the sequence: state action, reasonable expectation of privacy, warrant or exception, scope of the search, and remedy. The remedy step is often skipped, so an answer that says 'evidence suppressed' wins even when the good-faith exception or lack of standing defeats suppression.
What to do instead
Use a fixed five-step checklist on scratch paper for every Fourth Amendment question: (1) government action? (2) search or seizure (reasonable expectation of privacy or physical intrusion)? (3) warrant? (4) exception and its scope (search incident to arrest, automobile, inventory, consent, exigency, plain view, stop-and-frisk under Terry)? (5) remedy: standing, exclusion, good faith, inevitable discovery, attenuation, independent source. Write the step number next to each answer choice you eliminate. If the question involves a statement rather than physical evidence, switch to the Fifth Amendment checklist (custody plus interrogation, Miranda waiver, voluntariness, Sixth Amendment right to counsel at critical stages).
On Evidence questions, the candidate states a hearsay exception by name ('excited utterance,' 'business records,' 'present sense impression') without reciting the elements, and fails to address the non-hearsay categories (prior inconsistent statements under oath, prior consistent statements, identifications, opposing party statements, verbal acts) before reaching the exceptions.
The hearsay chapter is long, and candidates memorize labels under time pressure. The MBE deliberately offers facts that satisfy the label's vibe but fail an element (e.g., a statement made hours after the event is not an excited utterance; a record made for litigation is not a business record). Candidates also skip the threshold question of whether the statement is offered for its truth at all.
What to do instead
For every hearsay question, write four lines: (1) 'Offered for truth?' (2) 'If not, non-hearsay category?' (3) 'If yes, which exception and what are its elements?' (4) 'Confrontation issue if criminal and testimonial?' Then recite the elements aloud in your head before choosing. Drill the element lists for the most-tested exceptions: present sense impression (contemporaneous or immediately after), excited utterance (startling event, under stress), then-existing mental/physical condition (not memory or belief to prove the fact remembered), medical diagnosis/treatment (for diagnosis or treatment), business records (regular practice, made at or near the time, by someone with knowledge, custodian foundation), public records, ancient documents, learned treatises, and residual. Separately memorize the non-hearsay categories, because they are frequently the correct answer.
On Real Property questions, the candidate records the correct future interest label but misidentifies who holds it and when it becomes possessory, and in landlord-tenant and recording questions, fails to run the recording statute analysis (race, notice, race-notice) against the actual sequence of conveyances and notice types.
Future interests are taught as vocabulary, so candidates match labels to facts without tracing the chain of title or the grantor's retained interest. In recording questions, candidates skip the step of identifying the jurisdiction's statute type and instead apply a generic 'first to record wins' rule, which is wrong in notice and race-notice jurisdictions and wrong when the later purchaser had inquiry notice.
What to do instead
For future interests, draw the grant as a timeline: grantor's estate, grantee's estate, and the retained or created future interest, with the holder named explicitly (grantor versus third party). Recite the pairs: fee simple subject to condition subsequent plus right of entry; fee simple subject to executory limitation plus shifting executory interest; fee simple determinable plus possibility of reverter. For recording, write the statute type first, then list the competing interests in chronological order with the date of delivery, the date of recording, and the notice status (actual, inquiry, record) of each purchaser. Apply the statute mechanically to the sequence rather than to the labels.
On Torts questions, the candidate concludes 'negligence' after establishing duty and breach without completing the causation and damages elements, and in products liability and defamation questions, fails to identify the applicable theory (negligence, strict liability, warranty, or intentional tort) and the required showing for each.
Candidates treat duty and breach as the whole analysis because those elements generate the most fact patterns. Causation (actual plus proximate, with intervening causes and foreseeability) and damages are often the discriminating element in the answer choices. In products liability, the theories have different requirements (defect type, seller versus manufacturer, economic loss), and candidates blend them.
What to do instead
Use a five-element checklist for every negligence question: duty (standard of care and any special relationship), breach, actual cause ('but for'), proximate cause (foreseeability, intervening cause, eggshell plaintiff), and damages (actual harm, emotional distress limits). Write each element on scratch paper and mark it satisfied or not before selecting. For products liability, first name the theory and then the required showing: strict liability (defect in manufacture, design, or warning; seller in the business of selling; foreseeable use), negligence (breach of reasonable care), and warranty (UCC implied warranty, privity and notice rules). For defamation, list the elements and then the constitutional layer: public official or figure plus actual malice, private figure plus negligence for actual damages, and the matter of public concern rules.
On Pennsylvania-specific essay questions, the candidate answers with general common-law or federal rules and never cites or applies the Pennsylvania rule, such as Pennsylvania's comparative negligence statute (51 P.S. §7102), the Pennsylvania Rules of Civil Procedure on service and venue, the Pennsylvania Rules of Evidence, or Pennsylvania's professional responsibility rules where they differ from the ABA Model Rules.
Most preparation time goes to the MBE, and the Pennsylvania essay is treated as a place to reuse MBE doctrine. Candidates do not build a separate Pennsylvania outline, so they miss the state-specific rule that the grader is looking for, and they lose the points allocated to the Pennsylvania distinction even when the general analysis is sound.
What to do instead
Build a one-page Pennsylvania 'differences' sheet for each PA essay subject and review it weekly. Include at minimum: PA comparative negligence (modified, with the 51% bar and the joint and several liability rules for certain defendants), PA Rules of Civil Procedure on commencement, service, and venue, PA Rules of Evidence departures from the Federal Rules, PA professional responsibility (including PA-specific confidentiality and advertising rules), PA family law (equitable distribution factors, support guidelines, custody factors under 23 Pa.C.S. §5328), PA estates and trusts (intestacy, elective share, probate procedures), and PA business organizations (entity formation and filing under Title 15). In the essay, state the Pennsylvania rule explicitly and then apply it; do not simply cite the general rule.
The candidate writes essays as a stream of consciousness, burying the conclusion and the rule statement in narrative, and never uses headings that track the call of the question, so the grader cannot find the elements and the candidate runs out of time before reaching the last issue.
Candidates practice issue spotting but not issue organization, and under exam pressure they write in the order thoughts arrive. The result is a long answer that covers the first issue thoroughly and the last issue not at all, which is a scoring disaster because essays are graded across all issues in the call.
What to do instead
Before writing, spend two to three minutes outlining with one heading per issue in the call of the question, and allocate time proportionally across the issues. Use a fixed paragraph structure: (1) issue heading, (2) rule statement with the elements, (3) application to the specific facts, (4) conclusion. Write the conclusion sentence first in each paragraph if you tend to bury it. Practice with timed essays and a visible clock, and enforce a hard stop on each issue so the last issue gets answered. If time is short, write the rule and a one-sentence application for the remaining issues rather than leaving them blank.
The candidate manages the exam as a single continuous sprint, answers MBE questions without a time budget per question, does not flag and return to uncertain questions, and never practices the performance test or the Pennsylvania essay under timed conditions, so pacing collapses in the afternoon session.
Candidates study content almost exclusively and treat timing as something that will work out on exam day. The MBE's 1.8 minutes per question and the essay's strict time limits are skills that require rehearsal. Without a flag-and-return habit, a candidate who gets stuck on question 12 loses five minutes and then rushes the rest, producing avoidable errors in domains they know well.
What to do instead
Rehearse the exam under real conditions at least four times before test day: full-length MBE blocks with a per-question cap (about 1.8 minutes, with a hard move-on rule at 2.5 minutes), timed Pennsylvania essays, and timed performance tests. Adopt a flag-and-return protocol: answer every question, flag uncertain ones, and return only after completing the block. Track your per-question average by domain so you know which domains to skip faster. On essay day, write the outline first and enforce issue-level time caps. Review each practice run for pacing errors separately from content errors, and fix the pacing habit before adding more content review.