“There Will Rarely, If Ever, Be One Correct Answer"

I previously discussed several tips offered by a state board of law examiners to assist bar examinees on the written portion of the bar exam. Today, I wanted to focus on one particular suggestion by the Tennessee Board of Law Examiners:

TBLE Suggestion No. 5: Bear in mind that the examination is not designed to test only your knowledge of particular subjects. The Bar Examination is a test of those qualities or abilities which are basic to any of the many roles lawyers may be called upon to play. Thus, there will rarely, if ever, be one correct answer. You are being tested on your ability to think and express yourself as a lawyer. Your answer should be a reflection of your ability to do just that. [emphasis added]

I want to emphasize the TBLE’s statement that “there will rarely, if ever, be one correct answer.”

And that’s not just the position of the examiners in Tennessee. Take the Georgie Board of Bar Admissions, for example, which provides a similar message to its examinees:

After recognizing the issues, the applicant must then apply the various legal principles which are relevant to the issues. The manner in which the applicant applies these legal principles may be handled differently by different applicants, reaching different results. However, if the applicant has gone about the application of legal principles in a logical and well organized manner, then the applicant should pass the question irrespective of what conclusions are reached. Applicants are well aware that many of the cases before the Supreme Court of the United States are decided on a 5-4 basis; therefore, four distinguished jurists did not have the "right answer." Thus, to reemphasize, the method by which the applicant arrives at the answer is of the greatest importance, the Examiner being less interested in where one ends up than how one got there. [emphasis added]

Therefore, it’s worth repeating that examiners aren’t solely concerned about your conclusions. Rather, they’re also interested in how you reached your conclusion. So even if you reached a conclusion that isn’t what the examiners anticipated, you can still earn a sufficient number of points on the essays as long as you articulate the reason why and how you reached the conclusion you reached—and this means having a well-developed analysis section based on law you identified in your rules section and legally significant facts you incorporated from the test question.

Don’t believe me? Then believe the National Conference of Bar Examiners.

The NCBE releases Analyses for each Multistate Essay Examination question it administers. The NCBE has posted analyses from 2013 to 2015 on its website and makes others available for purchase through its online store. Some state boards of law examiners also make the same analyses publicly available on their own websites, for free.

The NCBE’s Analyses are illustrative of the discussions that might appear in excellent answers to the questions. These Analyses are provided to those jurisdictions administering the MEE to assist their graders in grading the examination. As a result, they are good study and review tools for examinees, particularly in helping them identify narrow issues, understand the rules tested, and develop alternative explanations and counterarguments.

For several of the NCBE’s explanations to questions, the examiners specifically state that certain questions and issues can be examined either way, with a recommendation that examinees receive full credit regardless of the conclusion they reach.

So make sure your analysis is well-developed. And if you’re feeling uneasy about beginning your responses with an opening conclusion statement for fear of getting the conclusion wrong, know that there isn’t always one “correct” answer to a prompt.

The following is a sampling of questions and issues, along with the NCBE’s explanations, where the NCBE has indicated that examinees should receive full credit for well-developed responses regardless of how they ultimately resolved the issues.

(Examinees can purchase MEE questions and the corresponding Analyses from the last six bar exam administrations (36 questions), plus a collection of 215 MEEs covering each of the 14 subject areas, directly from the NCBE website.)

July 2022—Contracts and Sales (Parol evidence rule)

"NOTE: The issue of whether the written agreement is completely integrated is a close one could be argued either way. Accordingly, the strength of an examinee's analysis on this point is more important than the conclusion reached by the examinee ..." [emphasis added]

February 2022—Corporations (Director’s conflicting interest transaction)

"NOTE: Examinees who make a well-reasoned argument to the contrary should receive full credit." [emphasis added]

February 2022—Agency (Ratification)

"NOTE: Examinees may receive full credit for using either of the two contrary approaches." [emphasis added]

July 2021—Wills and Estates (Construction of state anti-lapse statute)

"NOTE: Because this question could be answered either way, it is important to grade this question based upon the quality of the explanation, not merely on the conclusion." [emphasis added]

February 2020—Real Property (Severance of joint tenancy by lease)

"NOTE: Examinees should receive full credit for adopting any one of these positions …" [emphasis added]

July 2018—Contracts and Sales (Revocation)

"NOTE: While the Restatement indicates that indirect revocation is a generally applicable principle (and provides illustrations to that effect), the Reporter's Note to Section 43 notes that existing cases all involved real estate transactions. Accordingly, it could be argued that the homeowner had not revoked his offer before it was accepted by the neighbor and a contract was therefore created by the acceptance." [emphasis added]

July 2018—Evidence (Habit evidence)

"The court may admit testimony by the roommate if it decides that the man’s constant texting is a habit. A court might rule either way." [emphasis added]

February 2018—Contracts and Sales (Applicable law—UCC v. common law)

"NOTE: Good arguments can be made for either conclusion. Credit should be given to understanding of the criterion (predominant purpose and thoughtful application of that criterion to the facts, regardless of which conclusion the examinee reaches." [emphasis added]

February 2016—Evidence (Confrontation Clause)

"The facts support reasonable arguments either way on this issue." [emphasis added]

July 2013—Federal Civil Procedure (Diversity jurisdiction)

"NOTE: Examinees who demonstrate an understanding of the complexity of this issue, and who use the key facts to develop a cogent argument, should receive full credit regardless of their conclusion on this point." [emphasis added]

February 2012—Federal Civil Procedure (motion for change of venue)

"Absent the forum-selection clause, the issue could be argued either way." [emphasis added]

July 2010—Federal Civil Procedure (diversity jurisdiction)

"NOTE: The issue can be fairly argued either way."" [emphasis added]

July 2008—Trusts (Construction of amendment)

"NOTE: To receive credit, the applicant should not simply draw a conclusion but should demonstrate recognition that this is an issue of construction dependent on the grantor’s intent and could go either way." [emphasis added]

February 2009—Evidence (Impeachment)

"NOTE: An applicant should receive full credit if the applicant recognizes the extrinsic evidence issue." [emphasis added]

February 2009—Torts (Proximate causation)

"NOTE: The applicant’s conclusion on the proximate cause issue is less important than his or her analysis. The applicant should receive full credit if he or she recognizes and discusses the applicable legal principles." [emphasis added]

February 2008—Family Law (Modification of future support obligation)

"NOTE: An applicant’s conclusion is less important than his or her understanding of the legal issues. An applicant should receive full credit if he or she discusses the relevant factors." [emphasis added]