My life is no longer governed by the cycles of the bar exam, either as taker or tutor, so I didn't realize until today that I should really post this. I still occasionally tutor on the California Performance Exam -- this year, just for one old friend moving to CA -- but the exam (which begins tomorrow for most, Wednesday for some) sort of snuck up on me. I'll try to be more diligent to post this earlier in July in the future.
My only regret about tutoring is that it favors those with the funds to buy extra help; this is unfair, but that's capitalism for you. So I hope to balance my karmic account with some advice here for the final sprint, especially for those who haven't been able to afford Bar/Bri and PMBR training (or their equivalents) and who are so freaked out right now that they're actually spending part of the day before the exam reading Daily Kos.
Applicants, you've had a miserable summer. I hope that this makes it a little more tolerable here at the end -- and might even help you pass.
(This diary, a revision of one posted in July 2009, is Copyright 2011 by the author.)
1. So you are thinking of NOT taking the Bar Exam!
No, I can't read your mind, but I've known enough Applicants over the years to know that if you're scheduled to take this bar exam this week, the temptation may become great for you simply not to take it. This lets you avoid pain, avoid failure. Resist the temptation.
The best way to guarantee that you will not pass the Bar Exam is not to take it. Taking and failing the Bar Exam is not a generally available public act; in the states I'm familiar with, they publish a list of those who passed, not of those who tried and failed. (You're already on the list of those who applied; you've paid your money.) If people know that you took the test and failed, you can chalk it up to a migraine or some other face-saving excuse, as if it's anyone else's business. But if you don't take the test, you don't get the primary, bottom-line, benefit of doing so: the real-world, real-time experience of confronting the unknown.
Even if you don't pass the test this time, getting a feel for the environment of the test, its pacing, and your own emotional and physiological reactions to it is vital for passing the test on some future administration . You are paying for, if nothing else, information about what the test feels like and how you feel taking it. Do not pass up that chance. At worst, you can tell yourself at the outset that you know you aren't going to pass and just want to go through the motions -- no high emotional stakes for you. And if you pass anyway, it's gravy! Every year I have to talk someone down off the ledge of withdrawing from the exam; if you've had that thought, stop it now.
2. Know thyself
There are a thousand different ways to prepare for the Bar Exam and a thousand different strategies for taking it. Ideally, when you do practice tests (and of course you should), you are exploring different ways of approaching them, as if you were testing out different sorts of openings in chess.
You should know whether you are the type of person who (non-Applicants, please tune out here) is better off reading the File first or the Library first in a Performance test, or one of the rare birds like me who commits the cardinal sin of flipping back and forth between them. (Blogging, by the way, is great practice for typing the exam; when I'm reading the Library and know that a citation from a case is likely to be useful, I type it right into my laptop at the time and figure out where to use it later.)
You should know ahead of time whether you're someone who should mark guesses darkly on the MBE (multiple choice) and then erase them if you have time, or someone who can make a light mark to keep from getting your answer sheet off track and have time to go back and either fill it in or change it. You should know how good of a guesser you are. Can you narrow it down correctly to two choices out of four? Spend a little more time on those than the ones that you can narrow down to three -- or four. (Or to none. Those are the worst. Pick the one that seems least absurd and move on. Remember that words sometimes have multiple possible meanings, though.)
You should know, if you're using a laptop, if you're the type who can take notes or even an initial outline onto the laptop and develop them into an essay without leaving stray words on the page, or if you need to draft an outline and notes on paper first. No matter what anyone tells you, there is no right way to do it, but there is probably a right way for you.
3. Think of the graders! "BAG CURES SNIT"
The smartest thing you will hear in Bar/Bri is that you have to recognize that you are not writing an essay for the ages or a law journal, but you are writing for someone who is going to have maybe four minutes to read through your essay and pick out the "berries" that add to your score. Your task, as much as anything else, is to make it easy for them.
One critical thing you can do to make it easy on them is to start with the conclusion on each point you make. Make it a simple declarative sentence, something hard to miss. If no one has already told you to use lots of headings to highlight your conclusions, let me be the first.
Your essay answers should be glib and (except for some necessary professional-looking pleasantries in the Performance Test) somewhat telegraphic, always matter-of-fact. There are more issues that you could get points for in an essay exam than you can possible address in the time allotted; you need to make sure that you (a) don't miss any of the major ones and (b) collect enough of the minor ones that will appear on the grader's checklist.
Think of each question as a field of berries, where you get the best score for picking the most berries. The first thing you want to know how to do is to pick the low-hanging fruit. There are some truly big and juicy berries that you may have to struggle for, and you can't ignore them, but at least get the easy stuff to improve your score. Similarly, there is some high-placed, hard-to-reach fruit that you can spend all of your time going after if you let yourself, which takes away time from your main task. If there's something that you notice but can't figure out, mention it -- the equivalent of giving a branch of the berry bush a perfunctory shake to see if anything falls off -- so that you might get partial credit, but don't linger there unless you have time left at the end.
The Bar Exam is itself in its entirety a "practical exam." They want to know: can you budget your time? Can you determine your priorities? Can you follow instructions? Can you focus on what matters? Don't spent ten minutes on a vile multiple choice question that has the same point value as its friendlier neighbors. Don't chase an issue worth a single point or two down the rabbit hole while there is so much other game afoot. Keep in mind how your exam is going to be scored: by a bored and agitated person with a checklist who is not going to be impressed with the depth of your analysis even if you're the reincarnation of Oliver Wendell Holmes. Write accordingly. Say enough to collect the berry and move on.
You can do your best to ensure that you are collecting the low-hanging fruit and making things easy on the grader by learning this acronym, BAG CURES SNIT, which you can remember by imagining a large paper bag being put over the head of a frenzied Bar Exam Applicant to make them calm down. (I note that this is adapted from an excellent Bar/Bri lecture, although I don't recall the instructor's name):
Absent Contrary Agreement,
Grandma, to Whom I’m Writing in Simple Language,
Given These Conditions Precedent,
Under This Specific Applicable Law,
The General Rule,
And the Exceptions,
Apply to All Parties Separately,
According to Their Distinct Statuses;
No Exceptions May Apply,
But It Should Be Noted, However, That
One May Recover Under More Than One Theory.
B is for "Because": start your sentences with this magic word. This will force you into identifying the relevant facts and law that lead you to a conclusion. "Because you will start sentences with 'Because,' it will be easy for the grader to follow your logic." This is the most important tip in this section.
A is for "Absent Contrary Agreement": remember that in contractual cases, people can generally agree to set up their own alternatives to default rules. (There are exceptions, and you should know them.)
G is for "Grandma": this is to whom your essay is addressed. Grandma is no dummy, but she is unsophiticated in the law. (Your Grandma may vary.) She won't follow acronyms easily, she needs the facts and law laid out simply and succinctly. Intricate argument is wasted on her.
C is for "Conditions Precedent": remember to discuss what has to happen before a legal obligation comes into effect.
U is for "Under this Specific Applicable Law": get into the habit of noting the law that applies to your case. Sometimes this will be hard; other times it's low-hanging fruit.
R is for the "Rule" that you are invoking, and
E is for the "Exceptions" to that Rule, which may be worth a point or two.
The first S reminds you to address each party "Separately" and ...
... the second S reminds you to do so according to their "Statuses" (such as Infant, Married Person, State Actor, Bona Fide Purchaser for Value).
N is for "No exceptions to the rule apply," which, when true, is worth noting.
I is for "It Should Be Noted, However, That," which is your key term to hedging your bets. Where you can take a stand, do so -- even if it's somewhat arbitrary. Then you can note the legitimate objects and counterarguments with the preface "It should be noted, however, that opposing counsel will say ..." and grab the points that will apply if your answer is not the favored ones. Go where the berries are! This is the second most important tip in this section.
T is for "Theories," of which several separate ones may allow recovery.
I've taken the Bar Exam successfully three times in three states, and each time the first thing I did when I opened my essay book was to write BAG CURES SNIT at the top of the page to remind me of these precepts. If you forget what some of the initials stand for, that's OK; what matters more is what of them you remember to invoke.
4. The Performance Test is your friend
When I tutor, I usually focus on the Performance Test (MPT, or here in California the CPT), because I think that it offers the best chance to get a drop on your competition. No, the Bar Exam is not "curved," but even things supposedly graded on an absolute scale often develop a bit of a "curve" in practice. If you can hold your own on the essays and MBE (if you aren't in Washington State), the Performance Test -- 26% of the test grade in California, less elsewhere -- may be where you can make up ground on everyone else.
People generally ignore the Performance Test because it doesn't seem easy to study for and it doesn't involve the substantive law that you're trying to cram into your head for the MBE and topical essays. This is wrong-headed; you can improve your score here. Furthermore, after a while you reach a point of diminishing returns with the MBE and essays, where you're just shoveling more information into your head to make up for its continuing to leak out. You need some of that in the closing weeks, but by and large you're only talking about a marginal effect on your grade. (I always tell people that I don't study the Rule Against Perpetuities at all beyond reviewing my class notes for maybe a half hour a month out. They can write a multiple choice problem so nasty that it will take up many minutes of your time to get it right. Guessing and moving on is easier.) Learning how to write a good Performance Test essay, though, can move you from the back of the pack to the middle or the middle to near the front.
The most critical thing to know about the Performance Test is that you have to pay attention to the specific task you are being given. Staying on task is an important part of professional performance; it's part of what they're testing. Bear in mind how much of the grade the two or three parts (usually) of your assignment are worth. If it's a 20%-80% split, then adjust your time and effort accordingly. This is not the place to spout out all of your ancillary knowledge of substantive law. Pretend that the assignment is real, that your supervisor is busy and wants either the bottom line or the crux of the conflict boiled down to the bones, and get to the point.
In literature, they have a concept of the "unreliable narrator". Your performance test may have one. If something strikes you as fishy, explore it, because it probably is. Don't -- as you would not do in practice! -- assume that just because someone says something, it's true, or that just because there are clear rules, those rules were followed. Even your supervising partner may be woefully wrong about some assumption, or may be asking a question that misses the point that becomes clear when you read the Code or the cases. So long as it's relevant to the task at hand, be ready to politely explain what's actually important -- just like in real life.
If you've had any test prep training at all, you already know this, but if not, let me be the first to tell you: the footnotes of the cases are often where they hide the critical points or distinctions that will be the key to solving the mystery.
I've seen cases that were entirely unimportant except for one small paragraph at the end; I've seen others that are critical to answering a question all the way down the line. One skill they're testing for is the ability to distill the important holdings out of cases, which is why I usually read enough of the File first so that I can get a sense of what aspects of the cases I should care about. Long cases are generally, in my opinion, a trap -- they invite you to waste your time. Look to the holdings -- and remember that there may be several claims addressed in a single case, so that you can't just take the "bottom line" (affirmed, vacated, reversed) as demonstrating whether it is a "good" or "bad" case for your view.
Remember: the holding doesn't determine whether a case is good or bad for your client! One common trick is to use a case that is similar to, but distinguishable from, your situation -- and it is the fact that it is distinguishable turns out to be what is important! A case that looks helpful might not, on reasonably close examination, apply to your facts; ditto with a case that looks hurtful.
Sometimes they will throw a type of task at you from out of left field. Rather than composing a memo, as seems to be the most common question, you might be asked to compose deposition questions or a broader discovery strategy, propose legislation, draft a will or trust from a model, etc. (I vaguely remember a legislation question; I don't think I've seen a will/trust drafting question, but it wouldn't shock me.) Don't freak out at this; if you saw such a question, it would not turn on your prior substantive knowledge of wills and trusts. I would turn on your ability to (1) keep your task in mind, (2) identify relevant facts, (3) identify relevant laws, (4) combine them appropriately, and (5) express yourself clearly. You should do enough Performance Test examples -- and at least skim through the files of the ones you don't write -- so that you're familiar with the range of questions that might be asked.
There's lots more to say here, but this is enough for one diary. The main mistake I think people make with the performance test is to think that it involves skills that can't be honed. It's not true; I've helped people hone them.
5. Fake It to Make It
It can't be stressed enough that there is no penalty for guessing on the multiple choice and that no points are deducted for being substantively wrong on the essays. (If you're egregiously wrong, it may color the grader's view of the rest of your answer, but you can get around that, so long as you see both sides of the issue, by using the "It should be noted" (or some people say "If this is determined to be incorrect") gambit to show that they see the arguments on both sides.
Your enemies are time-wasting, confusion and failure to follow instructions. At some point, you will come to realize that you're never going to narrow many of the multiple choice problems down to one clear answer. (What I tell students is that I could generally narrow down the possible correct answers to either "two" or "none.") You have to get comfortable with this. If you have a series of multiple choice questions that you can narrow down to two answers, then the odds are that, over so many questions, you'll get half of them right. Be comfortable with that. Similarly, this is not the time to try to squirt ink in the water as if you were trying to bamboozle someone in argument. This is the time to say what you think, right or wrong, hedge where you can, and move on. You can be wrong about a lot and sill pass the bar. And of course, don't spend any time doing things that aren't your task! Did they tell you to recap all of the facts on the performance exam? No? Then don't do it!
Remember that most everyone else is in pretty much the same boat as you: no less miserable, no more prepared. Most of the first-time test-takers will pass. (If you become a serial test-failer, that raises different issues no addressed here.)
The Bar Exam is not just a test, it's a meta-test. It's not just a matter of "do you have the knowledge that you (supposedly) need to practice law?" but "faced with an enormous and fraught task, will you stand up to it, dig your heels in, and make progress -- or will you rip yourself to pieces emotionally?" Pass the meta-test -- remain calm, focused, interested, and as kind to yourself as you can manage, and the test will be much easier.
Good luck! Fake it to make it! Your comments, complaints, and howls of pain are welcome below.