Techniques for Passing the Bar Exam

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There are techniques to answering bar exam questions. After having read more than my share of essay, MBE and multiple-choice questions and answers, I have gleaned certain patterns, tendencies and characteristics of successful exam-taking techniques. One such technique is the ability to unlearn law school exam habits.

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Let's look at the last few years of your life. While in law school, you experienced a unique teaching modality—the Socratic method. You utilized a unique learning aid—the case book method. You more or less conquered a unique testing method—the hypothetical fact pattern. Before you can practice law, however, you are now told that you must pass an exam which is significantly different from those to which you have grown accustomed. Much of the bar exam is now standardized.

You now need to know the correct or best answer for almost half of it. You need to forget the Socratic method and instead, listen for hours as a lecturer spoon feeds you the law. And, you must give up the case book approach for ready-made, detailed outlines of law and facts which, in some instances, can be reduced to a mnemonic formula for easy recall. If you can successfully make this transition, you are almost home. Below are listed a number of ways to get there.

Reading, Writing, and Outlining: Upon receiving the exam itself and reading an essay question, your pen should be down. While reading it once, to get a panoramic view of the area (i.e., it is a contracts question, not criminal law), your pen is still down. If you see other students ferociously writing while your pen is down, you are not concentrating and you are losing time. As you read the bottom-line question, e.g., "What are the rights of the parties?," your pen should still be down.

During your second reading of the question, underline key words which raise an issue relative to the question. Note any applicable legal term or provision in the margin. Read the bottom-line question again and, this time, start your outline of the answer.

You may think that you should not take time to outline. Think again. It is the most efficient use of your time. The examiner is testing your analytical ability not verbosity and your answer must reveal how you resolve all issues. Because you know the law cold, and you have completed so many practice essays that you know the format well, you do not waste time groping for the right way to present your answer. You know the answers and your outline will aid your presentation of it.

There may come a time when you draw a blank or are asked to address an area of law that you did not study thoroughly.
The worst thing you can do on exam day is to beat yourself up for not having done the work you should have done to answer a question, for which you now discover you are unprepared. You don't have time for that. Instead, this is the time for all the discipline you can muster. Go on to the questions you can answer. Save enough time to return to the one you skipped and reread it. Now concentrate harder. Something is bound to "click" and you will be able to respond. Maintain your discipline by outlining. HINT: If you are close to running out of time, and cannot complete a response, include your outline as part of the answer to maximize your chance to receive some credit.

Fear of Writing: Many people hesitate when expected to write their analysis because they believe they do not write well. Nobody is going after a Pulitzer Prize for the "Best Bar Exam Essay Answer." Write in complete sentences which make sense, contain the key legal words and phrases, and which show that you know what you are talking about. Consider Lenny H.

Lenny H. Lenny wrote well, yet he was very self-conscious about his writing. He did not like to read his own writing, let alone to have others read it. Because of this self-consciousness, he felt that his writing had to be perfect To maintain "perfection/'Lenny would take an inordinate amount of time composing his thoughts and phrases. To avoid this ordeal, he tended to avoid writing whenever possible, including writing out practice essay answers. Instead, he would just read the question and, at best, jot down a "quick and dirty" outline of his answer.

I remind students like Lenny of studies that show that many people do not write often, or well, and do not always put their thoughts together in a series of sentences that form logical paragraphs. I remind students that while law school requires that they know how to write, few prizes are given for the best writing.

That grim fact is rightly reviewed as an educational disaster most of the time. But it is also an essential reminder that bar exams are not a showcase for literary perfectionism. To answer bar exam questions, students must know the law, spot the issues and formulate responsive answers. To avoid getting stuck, remember this advice; "Whenever you can shorten a sentence, do. And one always can. The best sentence? The shortest." Give your fear of writing a vacation. Don't let it keep you from passing the bar exam.

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Fear of reading your writing: Suppose you wrote "X is not a holder in due course" instead of "X is a holder in due course." Catch such errors while you can correct them. Reread your essay answers and make sure that you schedule your time accordingly (between 5 and 7 minutes correction time per essay). If you haven't learned to edit yourself until now, this may be your last chance. Reread your answer to insure that your writing is legible and coherent. Look for misstatements, errors or omissions. This will be your last chance to do so.

Yes, we have no "red herrings": The facts provided in a bar exam question are either relevant to your ultimate answers or raise an issue to be addressed. Contrast this with law school exams, where some professors present "interesting" facts which, in the final analysis, hold little relevance to the issues presented. If you have not used most of the facts provided in a bar exam question, reread your answer. You might have missed an issue.

Conversely, rarely are there missing facts, but, if there are, it is for a reason. Often students write, "the question did not say whether the gun was licensed." Of course not! By omitting one or another fact, the bar exam tests your ability to make an assumption and proceed to a conclusion.

The safe assumption to make is always the one that leads on to a difficult result, a new analytic problem that requires discussion. If you need a fact to complete your analysis, assume it, but assume that fact which will raise an issue. For example, if you assume a licensed gun, no issue is raised. Assume an unlicensed gun and you have an illegal possession charge to discuss.

Once is enough: Most bar exam essays have more than one part You could be asked, "Were the numbered rulings correct?" "What rights, if any, does B have against S?," or "What are the rights and interests of H, S, D and F?". If you state the same answer on more than one part, e.g., H's rights are the same as D's, one of your answers is incomplete. No two parties will have identical rights. You need to reach into your memory banks to discern a legal nuance which will shade one of the parties' rights. If that fails, reread the fact pattern; another issue is lurking.

Assume nothing; take no prisoners: Assume that the person who grades your exam knows nothing. The bar exam is your time to display your legal acumen and knowledge. Define all legal terms, provisions and operations of law. Leave no gaps. There is no "trier of fact" who will resolve the issues you leave open. Students have a tendency to analyze an issue up to the point where they must draw a conclusion and then avoid stating that conclusion. Instead, they say it's up to the jury or judge. This is especially prevalent in criminal law or torts questions. You must state what a "trier of fact" or the charging party (e.g., prosecutor or plaintiff) would likely do based on the facts presented and the law which you then supply.

The "kitchen sink"..., in context: You must provide the definitions of legal terms, provisions and operations of law, in the context of the issues presented. If you feel compelled to tell the grader about the development of the law (because that's all you remember), resist it. Start with an issue. For example, in the context of a question dealing with merchants and an offer and an acceptance, neither of which contains the price term, you might begin your answer with a discussion of whether that missing term is fatal to the formation of the contract as between these parties.

You now make a choice based on your legal knowledge: either it is or it is not. By simply framing the issue and stating a possible answer you may have garnered points; whereas a full-blown discussion of general principles of offers and acceptances and the common law "mirror image" rule, for example, would have probably resulted in none.

Key word in context: Bar exam graders look for key words in context. Where you know the legal term (e.g., gift causa mortis), use it. It makes it easier for the grader and provides greater insurance that you will receive credit.

Do make it easy for the graders: Don't make them struggle to read your essay. Grading is a part-time job for people with other full time jobs. Watch your handwriting. Dot your "i's" and "j's", don't use little circles. Do not cross out too much. Be neat!

Socrates is mortal.... Suppose you are asked, "What are A's causes of action"? If you simply list them and give nothing more, you are jumping to conclusions. You have not given the grader the information which allows him/her to test your conclusion. In essence, you have not analyzed the issues. To maximize credit, you must identify the facts which give rise to the issue, which you will then analyze and use as a basis for your conclusion. Consequently, you cannot just say "Socrates is mortal." You must also state, "All men are mortal. Socrates is a man. Therefore, Socrates is mortal."

In applying this to a bar-like question, torts, for example, you don't want to leave your answer with the single statement that A has a cause of action for products liability, negligence and breach of implied warranty. You also want to demonstrate that proposition by stating, "why." For example, for products liability, the product had a defect and the defect caused the injury. The manufacturer's conduct fell below the standard of care (for negligence) and the product failed to perform as promised even though it was properly used (for breach of implied warranty).

The flip side: Whenever you discuss obligations, interests, charges or rights, discuss defenses and counter-defenses. For example, A can be charged with conspiracy. His defense might be that he renounced. Prosecutors would counter his defense by noting that his renunciation is ineffective because he failed to notify authorities. There are at least two sides to every case. Present them in your answer.

When in Rome .... When answering the essays, give the law of the jurisdiction administering the exam. Do not tell a New York grader what the law is in New Jersey. (A peril of studying simultaneously for two exams) If you have an urge to compare and contrast what is done in other jurisdictions, resist it. You left that technique behind in law school.

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