Evidence MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Evidence MBE questions. You will see 25 scored Evidence MBE questions on the Multistate Bar Exam.
Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Evidence MBE Tip of the Day
MBE Tip of the Day Instructions:
Do your best to answer this Evidence MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? Next, what is the rule and analysis? Finally, what is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Show the MBE Question...
Evidence MBE Question
A woman sued a man for physical damages based on a federal statutory claim. The incident occurred within State A but the woman brought suit in federal court. State A recognizes all of the privileges recognized at common law.
At trial, the man called the woman’s treating physician to testify as to statements made in confidence to him by the woman in furtherance of medical treatment. The woman objects and claims that the physician-patient privilege applies to her statements.
Which law should the court apply to the claim of privilege?
(A) The state law and the court should therefore recognize the claim of privilege.
(B) The federal law and the court should therefore recognize the claim of privilege.
(C) The state law and the court should therefore reject the claim of privilege.
(D) The federal law and the court should therefore reject the claim of privilege.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show the Answer to the MBE Question...
Answer to the Evidence MBE Question
Legal Issue: What law applies? Will the court recognize the privilege?
Legal Rule and Analysis: In this case, federal law will apply because the plaintiff is bringing a federal claim in federal court. (The state privilege would be recognized if this was a diversity case in federal court because the federal court would apply state law on privileges. However, this case is not.) Unlike common law, the federal court does not recognize the physician-patient privilege.
Conclusion: Federal law will apply and the privilege will not be recognized.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. (D) is the correct answer. For these reasons, (A), (B), and (C) are incorrect.
Evidence MBE Tip: Some of these MBE questions and brief and to the point. If you know the law, you should be able to answer the question in less than a minute (and you can spend your extra time on a longer MBE question!) Sometimes the best way to improve timing is to learn the law better.
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: Remember that a federal court will apply state law on privileges in diversity cases but it applies federal law in federal cases. Federal courts do not recognize the physician-patient privilege.
MBE Tip: Some of these MBE questions are brief and to the point. If you know the law, you should be able to answer the question in less than a minute (and you can spend your extra time on a longer MBE question!) Sometimes the best way to improve timing is to learn the law better.
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
Looking for additional MBE help?
If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.
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