3 Realistic MBE Questions You Should Be Able to Answer

If you’re looking for real MBE questions to prepare for the Bar, we’ve written about our favorite practice resources, including questions straight from the NCBE. But if you’ve already reviewed these and are looking for more great brainteasers, we have three realistic MBE questions for you to work through today.

While these are not MBE questions from the actual exam, these samples can help you become more comfortable with the real MBE questions you’ll see on test day. Good luck!

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Question 1

A man and a woman worked at a store that paid their employees a low hourly wage, plus commissions. Commissions are a very big part of what makes this job worthwhile, since they can increase a salesperson’s income exponentially.

After a particularly frustrating month of low sales, both employees had become irritable at work. They faced pressure from the owner to “step up their game,” or they might find themselves looking for employment elsewhere.

As irritation grew to desperation, they started bickering. One day, the man got incensed when the woman interrupted one of his customer interactions and took over, thereby ending up with a very healthy commission. After the customer left, he went right up to the female employee, pointed his finger at her nose, and said, “If you ever do that again, you are gonna suffer much more pain than just a lost commission!”

The female employee was shocked and frightened by this outburst, but chalked it up to temporary tensions. However, over the next several weeks, the male employee became more and more agitated. He repeatedly shouted at her when no one else was in the store, and approached her with his finger in her face while warning her to “back off” and let him make the sales. She became frightened to go to work, and ended up filing a lawsuit in civil court for assault.

Has the male employee committed an actionable assault?

1. Yes. The male employee pointed his finger in her face, which is threatening in and of itself. He repeated threatening remarks. The female employee had no idea if or when the male employee would follow through on his threats; it could happen at any time. All of this caused her anxiety and apprehension of physical harm.

2. Yes. The male employee made verbal threats to the female employee. These threats caused her to be apprehensive, and therefore he is guilty of committing an assault.

3. No. These kinds of arguments are common in the workplace, particularly when commissions are on the line. The male employee never touched or struck the female employee. Therefore, her apprehension was unfounded and there is no cause of action.

4. No. Any anxiety that the female employee experienced as a result of his threat was not the result of an imminent threat. Therefore, the element of imminence is not met, and the action would be dismissed.

Question 2

Two businesses were in litigation. The first business (the plaintiff) had contracted the second (the defendant) to reconstruct part of the plantiff’s office.

At trial, the plaintiff introduced evidence of specific needs they had shared with the defendant, including the blueprints that had been drawn up and agreed upon by both parties. The plaintiff claims that the construction plans were not followed properly, and that is the basis of the lawsuit.

At trial, the defendant attempts to enter into evidence a series of interdepartmental emails and letters that support their defense. These emails were written after the lawsuit was filed, some as recently as a week prior to trial.

Will the judge allow this evidence to be admitted?

1. Yes, these records are hearsay – however, they fall under the business records exception to the hearsay rule. As long as the plaintiff is the keeper of such records and can authenticate them, they are admissible.

2. Yes, these records are admissible under the recorded recollection exception to the hearsay rule.

3. No. The records were not kept in the ordinary course of business. They were written after the lawsuit was filed, and as a direct result of the lawsuit being filed. They do not properly fall under the business records exception.

4. No. These documents do not fall under any exception to the hearsay rule.

Question 3

A contractor was in the market for a new backhoe, which is a machine designed to assist in excavating a construction site. He went to a dealer in used, but entirely refurbished, construction equipment. The contractor explained that he needed a machine that would stand up to daily heavy loads, up to 1,000 pounds at a time.

The dealer showed a model to the contractor, and assured him that it would stand up to at least that amount of workload. Based on these assurances, the contractor purchased the backhoe. In the paperwork for the sale there were no warranties, and no warranty exclusions.

For about two months, the backhoe held up just fine. Then, one day, in the middle of excavating a site and full of a load of dirt, the arm on the vehicle broke. Not only did it stop working, but the arm actually disengaged from the body of the backhoe. The contractor sued the dealer, claiming a breach of implied warranties. The court held a bench trial.

Based on the U.C.C., which is the most likely decision of the judge?

1. The plaintiff loses. Oral statements are not binding in such a situation. Since there were no written warranties, there were no warranties at all in this case, particularly because it was a used vehicle. Buyer beware!

2. The plaintiff loses. The implied warranty of merchantability does not apply to used vehicles because their performance can never be guaranteed.

3. The plaintiff wins. The seller here made an express warranty of merchantability when he assured the plaintiff/buyer that the vehicle would live up to the necessary workloads. He breached it, therefore judgment will be in favor of the plaintiff.

4. The plaintiff wins. In this case, there was both an implied warranty of merchantability and an implied warranty of fitness for a particular purpose. Both were breached.

Answers

Question 1: #1 is Correct

Yes. The male employee pointed his finger in her face, which is threatening in and of itself. He repeated threatening remarks. The female employee had no idea if or when the male employee would follow through on his threats; it could happen at any time. All of this caused her anxiety and apprehension of physical harm.

The definition of assault, as a civil cause of action, is an action or movement made with the intent to cause either:

    Apprehension of harmful physical contact, or
    Actual harmful or offensive contact.

In this example, the female employee was clearly put in apprehension of harmful physical contact. The male had made an action – moving towards her and pointing his finger directly at her face – that was clearly hostile. Then, he backed up this physical movement with verbal threats to her well-being. There is a civil cause of action based on these factors.

Now, any attorney would likely inform the woman that she didn’t stand much of a chance at collecting on any damages awarded, because the male employee was likely not very wealthy. So even if she “won” a judgment in court, the chances of her collecting are pretty slim, so it might not be worth it. However, legally, she does have a cause of action.

Question 2: #3 is Correct

No. The records were not kept in the ordinary course of business. They were written after the lawsuit was filed, and as a direct result of the lawsuit being filed. They do not properly fall under the business records exception.

These emails were not a proper exception to the hearsay rule pursuant to Rule 803 of the Federal Rules of Evidence. Rule 803(6) makes records of regularly conducted activity of a business admissible. This is due to the fact that, since the records are routinely kept, they are reliable.

There are a couple of problems with these so-called business records. First, they were made after the lawsuit was filed, and not close enough in time to the incident in question. Therefore, it is highly likely that they were made in anticipation of trial and for that reason alone. That makes them much less reliable, and does not qualify as a business records exception to the hearsay rule.

This question is also a good example of how the Bar Examiners may put two seemingly correct answers into the mix, and you must choose the most correct. #4 is also seemingly correct. However, it is less correct. Stating that the records do not fall under any exception to the hearsay rule is not exactly accurate. Due to the nature of the correspondence in question, the business records exception to the hearsay rule would naturally arise. It is obvious that the defendant would claim that exception during discourse on the admissibility of the evidence, and the judge would have to take that into consideration before ruling. Therefore, #3 is more accurate and therefore, more correct than #4. This is the type of question that may trip you up, so be careful to always choose the best answer when two seemingly correct answers are presented.

Question 3: #4 is Correct

The plaintiff wins. In this case, there was both an implied warranty of merchantability and an implied warranty of fitness for a particular purpose. Both were breached.

This case involves two warranties:

  • The first arises from section 2-314 of the U.C.C. provides that a warranty of merchantability is implied in a contract of sale (unless excluded or modified) “if the seller is a merchant with respect to goods of that kind.” To be merchantable, the goods “must be at least such as . . . are fit for the ordinary purposes for which such goods are used. . . .”
  • The second warranty arises under sec. 2-315 of the U.C.C., which provides that “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

The buyer explicitly told the seller what he was going to use the equipment for, and that it would have to stand up under such use. The seller was fully aware that his assurances that the equipment would endure such heavy use was a primary reason for the purchase. Therefore, an implied warranty of fitness for a particular purpose applies. The U.C.C. does not exclude used items in either of the implied warranty sections at issue.

So, how did you do on these practice questions?

The more you practice, the more comfortable you’ll be with the real MBE questions that come up on the Bar Exam. You can continue your practice by looking at our 4 MBE Sample Questions, 4 Common Uniform Bar Exam Questions, and 3 Bar Exam Questions to Study.

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