Workshop on Creating NCBE-Style

Workshop on Creating NCBE-Style

Multiple Choice Questions

CALI Conference

ASU School of Law

June 16, 2017

Scott J. Burnham

Curley Professor of Law (ret.)

Gonzaga University School of Law

These materials may be edited and distributed on a non-commercial basis as long as attribution is given to me or to Susan M. Case and Beth Donahue for the One-Page Guide to Writing Multiple-Choice Questions.

Outcomes.

After participating in the workshop, participants will be able to:

Explain to students how to approach multiple choice questions
Draft effective multiple choice questions
Provide students with questions similar in format to those they will find on the MBE
Assess whether their question was effective

Overview

Advantages of multiple choice questions:

The assessor spends time preparing the exam, not grading it.

The assessor maintains consistent grading standards across the tested population.

The assessor tests a wide variety of material.

The assessor is not distracted by writing ability.

The assessor can use the same questions multiple times.

Multiple choice questions can test both knowledge and legal reasoning.

Multiple choice questions have been proven to be reliable measures of performance.

Disadvantages of multiple choice questions:

Multiple choice questions do not measure in-depth knowledge.

Multiple choice questions do not measure high-level reasoning, such as choosing among competing policies.

Assessors are less likely to provide feedback.

It can be difficult to diagnose a student’s strengths and weaknesses from their performance. E.g., do they have trouble issue spotting? Stating appropriate rules? Analyzing a problem? Distinguishing important from unimportant facts?

Answering Multiple Choice Questions – Advice for Students

Scott J. Burnham, Curley Professor of Law, Gonzaga University School of Law (ret.)

I. Introduction

A. The parts of a multiple choice question are:

Facts (or stem)

Question (or lead-in)

Options

Key (the right answer)

Distractors (the wrong answers)

B. As with any exam, follow instructions.

Is there only one right answer?

Is there a deduction for wrong answers?

Read the question carefully. E.g., a question asks:

Which of the following is not within the Article 2 definition of goods?

II. Question types

A. Recall of rules or information. For example:

What is the highest appellate court in New York called?

A. Superior Court

B. Supreme Court

C. Appellate Division

D. Court of Appeals

B. Recognition of materials from the class. For example:

The holding of Neri v. Retail Marine Corp. is:

A. A down payment may be retained as liquidated damages.

B. A seller may recover as damages the difference between the contract price and the resale price.

C. Lost profits may be awarded as a remedy.

D. A seller may not recover consequential damages.

C. Analytical Questions

1. Employ IRAC: Issue, Rule, Analysis or Application, Conclusion.

E.g.: Which of the following transactions is governed by Article 2 of the UCC?

A. Brown’s sale of his home to Black.

B. ABC Corp.’s employment of Brown.

C. Brown’s sale of her automobile to Black.

D. ABC’s rental of a car from Avis.

Issue: What is the scope of Article 2?

Rule: Article 2 applies to the sale of goods (sub-rule: goods are defined as movables)

Application: Identify the option that involves the sale of goods

Conclusion: C

2. Facts.

Use the facts you are given

Don’t supply facts that aren’t there

Be reasonable. For example, the facts state:

A seller agrees to sell her car to a buyer for $5000. The contract provides that ....

You might want to argue that the facts do not say that the buyer agreed to buy the car. However, the fact that the facts say there was a contract fairly implies this additional fact.

3. Issue-spotting.

Use the table of contents of the course material as an outline and checklist for the areas from which issues will be drawn.

Ask yourself why the author included certain facts in the question. It was probably to raise a certain issue.

For example, a question begins with these facts:

Trying to sell his Rembrandt painting, a rich individual made a telephone call to a museum. During the call, the museum agreed to buy the painting for $5,000,000 ....

You should pause when you see the fact that this transaction occurred during a telephone call. Why did the author say that? Probably because the issue is going to involve the enforceability of an oral agreement.

4. Employ the relevant rule.

Know the rule that is relevant to the fact situation.

Know when the exceptions apply. For example:

A law student and her classmate entered into an oral contract for the sale of a car for $5,000. The student sent her classmate a letter that contained the essential details of the transaction. The classmate then denied that there was an enforceable agreement.

Is the agreement enforceable against the classmate?

The issue is whether an oral contract is enforceable. Rules applicable to this issue include:

a. Contracts for the sale of goods are governed by the UCC.

b. Oral contracts under the UCC are not enforceable if the price is $500 or more.

c. Oral contracts are enforceable against a party who has signed a sufficient writing.

d. The confirmation exception -- if one party sends a written confirmation to the other party, the receiving party is bound.

e. The confirmation exception applies only to a contract between merchants.

5. Apply the rule to the facts.

a. The options for the above question might be:

A. Yes, because the agreement is not within the statute of frauds.

B. Yes, because the letter satisfies the confirmation exception.

C. No, because the statute of frauds requires a writing signed by both parties.

D. No, because the confirmation exception only applies between merchants.

Applying these rules, A must be wrong because of rules (a) and (b) – the agreement is for the sale of goods and it is for over $500 so it is within the statute of frauds.

B seems correct under rule (d), but not under rule (e) – the exception only applies between merchants and these parties are not merchants.

C is wrong because of rule(c) – the statute does not require a writing signed by both parties, but only by the party against whom enforcement is sought.

D is correct. The facts indicate that the agreement is within the statute of frauds. Therefore, it is not enforceable unless there is a writing signed by the classmate. The facts indicate there is not. There is an exception when a confirmation is sent to that party, but that exception only applies between merchants, and the facts indicate that these parties are not merchants. Therefore, the agreement is not enforceable against the classmate.

b. Sometimes the options contain just a conclusion, but other times they contain both a conclusion and analysis, such as the reason for the conclusion. For example:

A contract between a buyer and a seller of goods is silent on the recovery of consequential damages and silent on attorney’s fees incurred in the event of breach. On the seller’s default, the buyer incurs consequential damages that were reasonably foreseeable by the seller in the amount of $1,000 and the buyer incurs reasonable attorney’s fees of $2,000. Which of the following may the buyer recover?

A. Neither the consequential damages nor the attorney’s fees, because neither is permitted by the relevant law.

B. The consequential damages only, because the relevant law permits consequential damages, but permits attorney’s fees only if provided for by statute or by agreement.

C. The attorney’s fees only, because the relevant statute permits attorney’s fees, but permits consequential damages only if provided for by agreement.

D. Both the consequential damages and the attorney’s fees, because both are permitted by the relevant law.

The question is essentially testing three things:

1) what is the UCC rule on whether a buyer can recover consequential damages, and

2) what is the UCC rule on whether a buyer can recover attorney’s fees, and

3) can these rules be changed by agreement?

The same facts and lead-in might be followed by these options:

A. 0.

B. $1,000.

C. $2,000.

D. $3,000.

c. To answer some questions, you have to select the right answer and also the reason it is right. For example:

Mary, who is 16, bought a car from an adult for $5,000 in order to commute to school in her rural community. The price was fair and Mary fully understood the contract. Under the majority rule, can Mary return the car and get her money back?

A. Yes, because the contract is voidable because she is a minor.

B. Yes, because the contract is void because she is a minor.

C. No, because the price was fair.

D. No, because the car was a necessity for her.

III. “Tricky” questions

To distinguish among the options that seem close, you might employ some of the following techniques:

• Ask what body of law is applicable. One option might be right under the common law, and another under the UCC.

• Review the facts to determine whether you are being tested on a factual distinction. One option might be correct when the contract is oral, another when the contract is written. Or one option might be correct when the seller is a merchant, another when the seller is a non-merchant.

• Make sure you are applying the right rule. Rule A might lead you to one option, while Rule B might lead you to another.

• Check whether you are being tested on the exception to a rule. The rule might lead you to one option, while the exception might lead you to another.

• If the facts of two questions are similar, the assessor is probably trying to get you to spot a distinction. Review your answer to the earlier question.

• Be skeptical of options that are stated in terms of absolutes like always or never.

IV. Time management

Figure out at the beginning how much time you have per question and keep an eye on the time.

Skip questions you are getting bogged down on. Come back to them. But don’t leave blanks.

Is your first impulse right? Don’t over-analyze.

V. Conclusion

Prepare for multiple choice tests as you would for any other.

Make sure you have a grasp of the rules.

Use IRAC.

Multiple Choice Question Drafting Example

Content.

Assume you want a question that will test understanding of the rule on recovery of consequential damages for breach of contract.

The item written as a recall or recognition item:

A plaintiff in a breach of contract claim can recover

A. those damages that naturally and proximately flow from the breach.

B. those damages that the defendant knew at the time of contracting would likely result from the breach.

C. those damages that a reasonable person in the place of the defendant would have known at the time of contracting would likely result from the breach.

D. compensatory damages but not consequential damages since contract damages are intended to compensate the plaintiff and not to punish the defendant.

What is the rule for recovery of consequential damages for breach of contract?

A. A plaintiff can recover those damages that naturally and proximately flow from the breach.

B. A plaintiff can recover those damages that the defendant knew at the time of contracting would likely result from the breach.

C. A plaintiff can recover those damages that a reasonable person in the place of the defendant would have known at the time of contracting would likely result from the breach.

D. A plaintiff in a contract claim cannot recover consequential damages since contract damages are intended to compensate and not to punish.

We will now write the item as an analytical question so that students must demonstrate their understanding of the rule through its application.

We will edit this question:

Elmer Fudd needs carrots for his carrot cake business, Fuddrocker’s Carrot Cakes. He contracts with Bugs Bunny to supply 1000 pounds of carrots on June 1 for a price of $1000. Before they sign the contract, Fudd tells Bunny that if the carrots are not delivered, he will have to close down his carrot cake business until he finds a supply of carrots.

Bugs had the carrots lying around, but he couldn’t resist the temptation and had a giant eat-a-thon during which he ate all the carrots. On June 1, Bunny did not deliver the carrots. Fudd screamed, “That cwazy wabbit!” He has to close down his business for 2 days until he finds replacement carrots for $1100 on June 3. During those two days, he loses profits of $200 he would have made from the sale of carrot cakes.

Elmer can recover from Bunny

A. $300.

B. $200, if a reasonable person would have known this loss would result.

C. $100.

D. None of the above.

The facts (stem).

Rules:

No extraneous facts.

No humor or silly names.

Use the past tense.

Eliminate the extraneous facts:

Bugs had the carrots lying around, but he couldn’t resist the temptation and had a giant eat-a-thon during which he ate all the carrots. On June 1, Bunny does not deliver the carrots. Fudd screamed, “That cwazy wabbit!” [He] has to close down his business for 2 days until he finds replacement carrots for $1100 on June 3. During those two days, he loses profits of $200 he would have made from the sale of carrot cakes.

Elmer Fudd needs carrots for his carrot cake business. He contracts with Bugs Bunny to supply 1000 pounds of carrots on June 1 for a price of $1000. Before they sign the contract, Fudd tells Bunny that if the carrots are not delivered, he will have to close down his carrot cake business until he finds a supply of carrots.

On June 1, Bunny does not deliver the carrots. [He] has to close down his business for 2 days until he finds replacement carrots for $1100 on June 3. During those two days, he loses profits of $200 he would have made from the sale of carrot cakes.

Eliminate the humor and silly names:

Elmer FuddA buyer needs carrots for his carrot cake business. He contracts with Bugs Bunnya seller to supply 1000 pounds of carrots on June 1 for a price of $1000. Before they sign the contract, Fuddthe buyer tells Bunnythe seller that if the carrots are not delivered, he will have to close down his carrot cake business until he finds a supply of carrots.

On June 1, Bunnythe seller does not deliver the carrots. HeThe buyer has to close down his business for 2 days until he finds replacement carrots for $1100 on June 3. During those two days, hethe buyer loses profits of $200 he would have made from the sale of carrot cakes.

A buyer needs carrots for his carrot cake business. He contracts with a seller to supply 1000 pounds of carrots on June 1 for a price of $1000. Before they sign the contract, the buyer tells the seller that if the carrots are not delivered, he will have to close down his carrot cake business until he finds a supply of carrots.

On June 1, the seller does not deliver the carrots. The buyer has to close down his business for 2 days until he finds replacement carrots for $1100 on June 3. During those two days, the buyer loses profits of $200 he would have made from the sale of carrot cakes.

Use the past tense:

A buyer needs ed carrots for his carrot cake business. He contractsed with a seller to supply 1000 pounds of carrots on June 1 for a price of $1000. Before they signed the contract, the buyer tellstold the seller that if the carrots arewere not delivered, he willwould have to close down his carrot cake business until he finds found a supply of carrots.

On June 1, the seller does did not deliver the carrots. The buyer hasd to close down his business for 2 days until he finds found replacement carrots for $1100 on June 3. During those two days, the buyer loses lost profits of $200 he would have made from the sale of carrot cakes.