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Stopping the Cycle of Failure in Bar Exams

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You may have taken the bar exam so often that you've given up hope of ever passing it. You may have tried different review courses, and workshops, even tried hypnosis, but you still haven't passed the bar after three attempts. Or, maybe you're still feeling the pain of having failed it on your first try. Whatever your situation, there is a discernible reason why you failed.
 
Stopping the Cycle of Failure in Bar Exams

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To end the cycle of failure or to stop one before it starts, you need to search your soul now to find out the reason(s) you allowed yourself to be diverted from your primary goal of passing the exam and from the work you knew you had to do to get there. If you do not choose to take the time now, you will eventually be forced to. The same ambivalence that was expressed through your failure this time will be there the next time you take the exam and the seeds of a future failure will have been sown and watered.

The “First Time” in a bar exam

The bar exam has often been compared to a rite of passage, where a young person must pass a test or make a showing of his/her worthiness to become a full-fledged member of the social group or religious order. The comparison, however, is misleading. True rites often involve long-term preparation, a pairing of the initiate with an elder, who will determine when the youngster is ready, and the investment of the entire community in the success of the undertaking. If the bar exam and its process had the structural supports found in true rites of passage, we would probably see fewer people failing it. The problem is that it does not.

If the ten weeks or so spent in preparation for the bar exam were enhancing the knowledge and honing the skills learned the last three years in law school, you could consider yourself to have had the long-term preparation typical of most passage rites. They do not. While your analytical abilities are needed for the bar, you have to apply and articulate them in new and different ways.

Some people need more than ten weeks to learn how to do this. Because there is no elder, teacher, sensei, or coach to let you know when you are ready, the only way some people find out that they were not is when they receive their notice of failure.

If the law schools, bar associations, examiners and the like had a stake in your individual success on the bar, the exam would again come closer to that of a true rite of passage. Most do not. It would seem that the only members of the legal community invested in your passing the bar exam are the review courses. But while some do care, their interest is largely financial and it comes at the end of your training which for some candidates is too late.

Rarely do law schools or bar association play an active part in preparing you for the bar exam. While there are exceptions, like CUNY and various local bar associations, when you graduate, you are pretty much on your own in opening the gates to the profession. Little or no assistance is provided by the gatekeepers.

Given this, you should not worry if you were ill-prepared for your first try. The fact that you got through it is a plus. Consider it a dry run. Now you know what it is like, what is expected and how you reacted to the pressures. You can use that knowledge to go right into the next exam. You can also take solace from the finding of the New York State Judicial Commission on Minorities which surveyed litigators on their bar exam experiences. One finding, which relied on responses of law school graduates from all over the United States and included test-takers over many years, was that the average number of bar pass efforts for all those surveyed, regardless of race, was two.

For the Above Average

People who have yet to pass the bar after two attempts tend to either get real serious about passing the next one or they withdraw emotionally and just go through the motions. Sometimes all it takes is the shock of two failures for those who get serious, to realize that their first one was no fluke. This can cause them to stop, assess and change their ways.

Jonah P.

Jonah was a very popular student, especially with the opposite sex. He liked the good life and was able to maintain it, even through law school, which he crammed his way through. He wasn’t surprised by his first bar exam failure, after all, he hadn’t studied at all for it. His second failure did surprise him because he thought that his "cram approach to bar passage" would get him over. It did not. Having missed this second time by only a few points, Jonah decided it was time to study. Not only did he really study the third time, he found a study-buddy and the two of them took practice exams under simulated conditions. He passed.

Another student needed a little outside help in getting serious.

Mark S. Mark was from a very prominent family of achievers. His mother was a high-ranking government official and his father was a law professor. His sister was a cardiologist and his younger brother was an accomplished violinist. While Mark did have to contend with pressure to achieve; he also liked the idea of "poor Mark." That status kept him the center of attention and it kept him out of the "real" world, where he would be forced to meet real demands, for the months of each year he studied for the bar exams. After some "straight" talk between me and Mark, he was able to change his ways to pass the next exam.

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That straight talk helped Mark to see how invested he was in his failure. It allowed him to divert attention from the family stars to himself. As he realized that he too could shine (in a constructive way), he let go of the behavior which caused him to fail and adopted the attitude and discipline needed to pass.

More self-reflection is needed for those students who choose merely to go through the motions of preparing for the bar exam, or for those who have stopped trying. The typical areas of self-reflection are often embodied in the following questions:
 
  1. Do you take the exam too seriously? You are consumed by the thought of failing the exam. You've become a drag to all around you because you do nothing but obsess over the exam and your inability to pass it. When you study, you do not pace yourself; so you find yourself studying for days and then sleeping for days. As the exam approaches, you do nothing but study every waking hour. You were so tired for one exam that you actually fell asleep right there as you read essay question number three (true story).
     
  2. Do you allow yourself to be distracted? You do anything not to study— you became obsessed with talk shows; adopted the counselor role in friend's marital problems; and became engaged (why you did this is another story).
     
  3. Does "something" always happen? Your "significant other" wanted more attention; your brother got arrested; your in-laws came to visit; your child was hospitalized; and your dog got sick after eating your lecture notes.
     
  4. Do you really want to be a lawyer? You had to maintain the family tradition—Papa/mama, grandpa too, were all lawyers; you are the first professional in the family; you really wanted to be a journalist, but they don't make "real" money, or a doctor, but it takes too long and you're not good at math. This last question holds special meaning for the chronic repeater.
Ellen A.

Ellen came to see me right after learning that she had failed the bar exam for a fourth time. At our meeting, I found her to be a very bright, articulate, organized woman, who was a paralegal in a major law firm.

After talking about the exam for a while, Ellen de-scribed her family to me, calling them "working class." She stated that she lived with her father and brother, her mother having died years ago. In response to my probing about whether they supported her career goal, Ellen admitted that they would subtly and, sometimes, not so subtly, remind her that she was not smart enough to be a lawyer and that her failure of the exam was positive proof of that "fact."

Before Ellen began her study for the next exam, we looked at the question, "Do / really want to be a lawyer?” The answer to this question is just as important for students whose families and friends expect them to become lawyers as it is for students, like Ellen, whose families expect them to fail or who talk about failure in a misguided attempt to protect a family member against future disappointment. Either way, the student must also address the question: "How many people will I take into the exam room with me?"

These are such crucial questions because you have to want the prize to be gained at the end the process—to be a member of the Bar. Otherwise, it is not worth the time and effort you must put into getting it. If you really don't want it, and for whatever reasons, can't come right out and say it, your test scores will say it for you. If this is you, stop the cycle by getting off. Your law degree and the legal education which you have received will hold you in good stead as you search for whatever it is you really want to do.

If this is not you, find out what it is that is keeping you from keeping your eyes on the prize. In Ellen's case, she took both her father and brother into the exam with her. She had accepted their frustration and fears, added them to her own doubts and produced the result which validated their collective expectation—failure. It was only when Ellen decided that the goal of practicing law was both attainable by her and was, indeed, her first priority, that she was able to muster the resolve to pass the exam. She was able to put her own doubts in the context of a life of achievement and to set up a mechanism to prevent her family's low expectations from bringing her down.

For others, it might just be that they have yet to swallow "the spinach." Remember the old Popeye cartoon. When he had had enough of Blutto's bullying, he would pop open a can of spinach and say, "That's all I cans stand. I can't stands no morer You have to get to the point where you're sick and tired of being sick and tired. You're tired of the "poor me " treatment; of the whispers; of the inertia in your career; and of the time and money you've devoted to the rite of passing the bar. Some people get to this point sooner than others; but, if you are still failing the exam, you must eventually get there in order to pass. Reaching that point will mean that you will do whatever it takes to pass. You will get out of that dysfunctional relationship. Send your children to sleep away camp. Quit that dead-end job. Stop that compulsive behavior. To pass, we all must eat the spinach.

After years of taking and failing the bar exam, it becomes harder and harder to motivate oneself to take it yet another time. Students naturally become depressed (some, in the clinical sense) and fearful. Depressed because nothing seems to work and fearful that the goal of passing will continue to elude them. If you are anything like me, you know the course your depression takes. For me, it is like a downward spiral. If I let it, I will keep going down, down, down. I start to feel sorry for myself. I let my appearance go. I call friends to come to my "pity me" party and listen to those "somebody done somebody wrong" songs. I can keep this up to the point where I don't want to get out of bed.

But I do. I just make myself do it. Since I know how I can get, I know that I can stop it. I pick a goal, any goal and do it. Eventually, I get back on track. I start by taking baby steps, doing little things which will garner little successes and more confidence. I get my nails done. I make lists of things to do and cross them off after I've done them. I begin to surround myself again with affirming people. I call my sister Veronica who refuses to come to my pity-me parties. She'll give me an inspirational talk that I'll hate to hear but will desperately need to get motivated. I force myself into one of my routines—usually exercising. From those actions, I allow my attitude to go from "I can't" to "lean" from "I won't" to "/ will" and the spiral turns upward. Find someone like Veronica for yourself. He/she may be in your family, at your temple, at a hotline number. Find that person and reach out whenever you need help eating the spinach.

If perfectionism is your problem, before you begin exam preparation again, make sure that you have sufficiently mourned the loss of that part of your ego which had never failed anything before. Accept your mortality, your humanity, your imperfection. Don't try to keep your failure a secret! Since we all fail at something at some time in our lives, you are not alone; and like most of us, you will live. In fact, the way we live offers evidence of what we have learned from failure. For some, it is quite a relief. Being perfect is not easy. Now everyone will know that you cannot be everything to everybody and you can begin breathing and living your life more fully. For perfectionists, failure can be a beginning.

So, What If You Fail?

The envelope is thin. A thick envelope is supposed to mean that you passed because they send all the papers needed to complete the admissions process along with your notification letter. Yours, however, is thin. You open the letter and you see a computerized printout with your scores and a cryptic message that you failed.

Now you cry. You deserve it. Hit the pillow, yell at the walls and allow yourself a full measure of the " if onlys" If only I had studied harder. If only I had not gone to those parties. If only I didn't have to work. If only my sister had not gotten sick! If only I hadn 't taken two exams. There are as many if onlys as there are people who fail the exam.

So, go through your list of them. When you finish, move quickly to review your exam. It is important to review your exam, no matter how painful. You will never know what you may find unless you review. One of my students discovered that a grader had not marked an entire essay because of the student's handwriting. He successfully appealed that "oversight." A review of your answer will give you valuable feedback on the way in which you responded to the pressure of the exam, as well as identifying your weak subject areas and possible poor exam techniques. Some jurisdictions will provide you with a copy of your answers. New York recently adopted this practice. Others may require that you go to preset locations. Check your state's practice. Avail yourself of any opportunity provided.

Always have someone else review your answers along with you. You need an objective assessment of what you did right and what you did wrong. If you review alone, you will compare your answers with the model ones and, like most people, see little or no difference. Someone less invested in the process should review it with you. Some jurisdictions will require that any person accompanying a candidate to a review session be admitted in that state and have no affiliation with a bar review course. A colleague will sometimes go with you. If not, some bar associations may find someone for you. If you can afford it, it is worth the investment to retain an attorney who reviews exams, usually as a side job. These services are listed in legal periodicals, or can be located through the bar review courses.

Your notification letter will tell you how and whether you may review the exam. When you do engage in this review, take your time. Review each and every question, and model answers provided to you by the examiners. Note the patterns of the questions and the patterns of the model answers. They generally do not change. Take as many notes as you possibly can and incorporate as much as you can in your study routine.

To Appeal or Not To Appeal

Depending upon availability, you must decide whether to appeal. Your score generally has to be within a range to be considered. The trend now seems to be automatic appeals. Check your jurisdiction. In some jurisdictions, appeals may involve risk as the end result can be that you lose points. Moreover, as most successful appeals occur where only a point or two was needed to pass, you should not view the appeal of an exam with greater disparities with much, if any, optimism.
If you decide to appeal, your papers should present clear and convincing arguments supporting your assertion of error in law or grading, and why you should receive additional points. Be concise and persuasive, not windy and argumentative. The tone of your appeal may count as much as the substance.

The Next Exam

Once you have decided to take the exam again, the next question is when? Given the schedule of exams in many states, you cannot wait for the results of an appeal before you have to begin studying for the next exam. Many people try to avoid the winter exam because it typically has a significantly lower pass rate than the summer exam. If your job depends upon your admission, the decision is made for you. You must take the next exam. If you can wait to take the exam with the higher pass rate, you may fare better from the extra time, as long as you do what's necessary to avoid getting stale.

Good planning is even more important on subsequent attempts than it was on the first one. You are more likely to be working full time. Scheduling and organizing, therefore, become even more crucial.

Should you take a bar review course again? Generally, not, especially if money will be tight during this period. Some courses allow students who are sitting again for the exam to repeat their course for little or no charge. Do so if you have the time and money, if for no other reason than it provides an external structure that some people need.

If you cannot afford the course again, don't worry about it. If your notes are not good, get a friend's notes and books. There is often an underground of people who seem to have everything you might ever want to use to study for the bar exam. Find them. Each local school has one such graduate. A little investigative work will reap great benefits. These people tend to have old and new notes, outlines, old bar exams and MBEs, and sometimes, predictions of exam questions to come. Just make sure that the law has not changed before relying on old materials.

When you are ready to begin studying again, take out your notes from your review of the exam. Gear your study to those areas that indicate weakness and emphasize those areas in your study routine. You must not neglect the other areas, because no matter how strong you were in them, unless reviewed, they may show up as weaknesses on the next exam. Thus, if you received a low score on the MBE, take as many practice questions daily as you have to until you reach a passing score. You must also simulate the conditions under which you will take the MBE, i.e., two full sessions of one hundred questions each.

I recently met a law school classmate of mine who was almost delirious at having passed the bar after trying six times. I asked him what made the difference. His response was simple: "I got tired of failing. I joined AA." He ate the spinach. Many people who pass on their next attempt after multiple failures will tell you that they changed their study habits, their approach to the exam, and aspects of their lives. For one student, it was doing more essays; for another it was moving out of his mother's home; and for still another it was after adopting a child. For you, it might not require drastic changes, or dramatic personal decisions, but then again, it just might. The key to success, however, is the commitment to do whatever it takes.

With your bar exam materials in hand, an awareness of what went wrong the last time, a schedule which reflects the activities which must be completed and a renewed commitment to doing whatever it takes, you too will be ready to pass the exam the next time. Remember: "It ain't over 'til you win."

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