How Torts Plays Tricks With You on the MBE

Torts is one of the most straightforward MBE subjects. There are few, if any, convoluted issues. There are no real Con Law-like schemata that take a while to wrap your head around. But that doesn't mean it's an easy subject.

Torts questions on the MBE often make up some of the trickiest MBE questions. The bar examiners expect you to understand the law of Torts, given its relative simplicity. So they make up for it with especially tricky questions and answer choices. Here is what to look out for.

Intentional torts where there's no intent

Oftentimes, the intent element of intentional torts is taken for granted. If there's a volitional act, surely intent must be involved. You'll almost certainly see a question or two where all elements of a given intentional tort appear to be satisfied... except intent. 

This sounds easy in practice, but the way these questions can come up make them especially tricky. The MBE tests intentional torts a lot - so always make sure to check that the intent element has been satisfied.

Broad, sweeping answer statements

Another thing to look out for in the MBE Torts questions is answer choices that sound right as to the question presented, but that are too broad to apply to other fact patterns. This happens on other subjects beyond Torts as well, but it's especially apparent on Torts.

So what are we talking about here? One example is answer choices that contain broad or sweeping legal statements. Answer choices on the MBE usually concern either the facts or law at issue. But when they concern law alone, they are usually only right if they are specific. If you see an answer choice that says something like "Yes, because a plaintiff always has the burden...." be careful. 

Similarly, watch out for legal statements that sound right as to the specific question at hand, but not as to a different hypothetical set of facts.

Torts mixed with Civ Pro or Property

Torts questions often mix in a lot with Civ Pro and Property. You'll be reading a fact pattern, thinking you're dealing with a Property issue, and all of a sudden you realize it's a Torts question. The good news is that most of the time, it's the other way around - it starts reading as a Torts question and becomes Civ Pro or Property (just one reason those subjects are considered tougher). But Torts can do this to you as well, so be aware.

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