Passing the Bar
Professor Vernellia Randall

Recognizing Distracters and Foils

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The entire section is based on Michael Josepheson, Evaluation and Grading in Law School, AALS Section on Teaching (1984).

 

Introduction
bullet Wrong options are called distracters or foils
bullet Distracter is something which compellingly and confusingly attracts in the wrong direction.
bullet Foil is something which services to set off another thing to advantage or disadvantage by contrasting with it.
bullet Game is played this way:
bullet Test knowledge and reasoning
bullet can't be obvious
bullet cant' use tricky devices or puzzling language
bullet uses distracters and foils
bullet All the options are given a look of superficial plausibility. Must read carefully.

 

Incomplete definitions and arguments
bulletNo: Murder is the unjustified killing of a human being. 
bulletYes: Murder is the unjustified killing of a human being with malice or forethought. 
bullet Don't complete the definition or argument in your mind and conclude that it is correct.

 

Deal with the facts
bullet Assume nothing in addition to what has been established or given
bulletProsecutor proves that John shot Mary and that Mary died an hour later. Is John guilty of Murder? 
bulletNo: Must also prove that John's bullet caused Mary's death

 

Don't ignore facts!
bulletAssume that you have been taught that an intoxicated person is not capable of driving her car in a reasonable manner. The root say that after Mary drank two quarts of whiskey, she was driving her car in a reasonable manner when she collided with Paul. Was Mary Negligent! 
bulletNo: Negligence is unreasonable conduct, since you were told that she was driving her car in a reasonable manner, you must conclude that she was not negligent. 

 

Common errors
bullet Wrong options are often based on common errors made by law students:
bullet Misunderstanding about the significance of legal expressions
bullet Plaintiff goes to sleep in the middle of the road and is struck by defendant who sees her in time but fails to take reasonable steps to avoid striking her.
bullet Defendant wins because plaintiff had the "last clear chance"
bullet No: Doctrine of "Last Clear Chance" Applies only to plaintiff

 

Overlooking the obvious
bullet Sometime the option is so obviously correct that there is no rational excuse for missing it.

 

Plausible Creations
bullet ignore meaningless garbage: Post Hoc Ergo Propter Hoc
bullet after which, therefore because of which
bullet name given to the error in reasoning
bullet It always rains after I wash my car, so washing my car makes it rain.
bullet Double talk
bullet a plaintiff could not be the holder of a certain easement because "an incorporeal hereditament lies only in grant"
bullet Doctrine or Rule never heard of = probably incorrect

 

Unfamiliar phrases
bullet may use familiar concepts in non traditional words
bullet Instead of saying: "John owed Mary a duty of reasonable care only if he created a foreseeable risk to her.
bullet May say: John had no obligation to Mary unless it appeared that John's conduct would injure her.
bulletRemember substance is more important than form.

 

 
 

 

Same Level:
Overview of Multiple Choice Questions ] [ Recognizing Distracters and Foils ] Play the Right Role! ] Strategies and Tactics ] Analyzing  Multiple Choice Questions ] Analyzing Responses ] How Options Can Be Wrong ] How to Guess Intelligently ] Taking the Multple Choice Test ] Varieties in the Form of the Question ] Varieties in the Nature of the Question ]
Child Level
Parent Level:
How to Take Multiple Choice ] Right Result - Right Reason ] Monitoring MBE Exam Score ] MBE Practice Sheet ]


Always Under Construction
Last Updated:
Saturday, May 17, 2003

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Vernellia Randall. All Rights Reserved