The Spine-chilling Tale of The Bar Examiner

Darkness falls upon the land. Blood-curdling screams are heard in the distance. Is it a werewolf attack? The zombie apocalypse? No, something far more sinister…The Bar Exam.

On this Halloween, I want to tell you the spine-chilling tale of The Bar Examiner. A great many law school graduates have fallen victim to this blood-thirsty fiend. Some have survived to tell the tale, while others have disappeared from the legal profession, never to be seen again.

Does The Bar Examiner possess supernatural powers? If by supernatural, you mean having the power to destroy your dreams of becoming a licensed attorney, then I’m afraid the answer is “yes”. While The Bar Examiner cannot damn you straight to the fires of hell, it can send you to purgatory where you would exist in an agonizing state of limbo between law school and the practice of law.

Does this monster get its evil powers direct from Satan? Well, not exactly. The Bar Examiner derives its authority from your state’s Office of Bar Admissions. How does it exercise such evil powers over innocent law school graduates? By giving you a score that does not reflect your true knowledge and ability on the essays and MPT (Multistate Performance Test).

Just like vampires and werewolves can turn you into one of their kind with a single bite, the attorneys who grade your bar exam answers can transform you into one of their own with a single stroke of their red pen. But, before they will bestow their powers upon you, they must deem you worthy enough to join their ranks. Therefore, you must prove that you can think and express yourself like a member of the legal profession.

To succeed, you must do the following:

  1. Answer essay questions in the time allotted. Just like a vampire racing back to his coffin before the coming sunrise, time is not on your side when you are taking the bar exam. Therefore, you must practice writing essay and MPT answers under timed conditions to be sure that you will succeed in writing complete answers under the tremendous time pressures of the actual exam.
  2. What will it take to appease The Bar Examiner? A human sacrifice? Your first-born child? No. To satisfy this monster you must organize your answer in a way that is pleasing to the grader and makes his or her job easier by responding to the issues in a logical order. Use complete sentences and paragraphs that are responsive to the call of the question. Respond to all parts of the question and avoid angering the grader by raising issues that are not responsive to the call of the question.
  3. Like a silver bullet or a stake through the heart, The Bar Examiner does have a weakness: the IRAC method. If you use it effectively to identify key issues, cite relevant RULES of black-letter law, analyze facts, and reason to a lawyer-like conclusion then IRAC will be your silver bullet. Use it to craft an answer that leaves The Bar Examiner no choice but to give you a passing score.
  4. On Halloween, zombies roam the earth in search of human brains. Similarly, bar exam graders are seeking evidence that you have a brain (and know how to use it). Therefore, they are not simply looking for the “right” answer. Instead they want an essay that demonstrates your ability to engage in legal thought and analysis. The value of your answer is not based upon the conclusion reached, but rather your understanding of the facts, recognition of the issues, use of applicable principles of law, and the reasoning by which you arrive at your conclusion.

If you follow my advice, you just might live to tell the tale of the day you crossed paths with The Bar Examiner!

Happy Halloween!

Seven Hurdles To Bar Exam Success (and how to overcome them)

I am going to let you in on a little secret: The bar exam isn’t fair.

That’s right. Despite what you may have been led to believe, the bar exam is not a fair test of your ability to practice law. If it were, then you would expect that a higher percentage of graduates from accredited law schools would pass the bar exam each time. Instead the exam is designed to intentionally weed out a certain percentage of law school graduates and keep them out of the legal profession.

That does not mean that you cannot beat the system. However, in order to do so, you need to become aware of the specific reasons why the bar exam is not a fair test of your ability to practice law and the ways that you can avoid these traps:

Hurdle #1: There is never enough time to prepare.
The typical bar review course starts just after graduation and ends just a few weeks before the bar exam. For most students, this is all of the time that they have to prepare for the bar exam. Even if you did nothing else but study during these two months, you would still feel as though you did not have enough time to prepare. The truth is that no matter how long you study, you will always be left feeling like you could have done more. That’s because the amount of information you must master is more than anyone could possibly absorb in that short amount of time; which leads to our next hurdle . . .

Hurdle #2: There is too much material to master thoroughly.
While you are required to master a wide range of legal knowledge for the bar exam, the truth is that you cannot possibly know everything. Fortunately, the percentage of correct answers needed to pass allows for a reasonable number of wrong answers. Your goal is not to completely master any of the bar exam subjects but rather to demonstrate a working knowledge about a broad range of issues. Rather than spending too much time preparing for issues that are unlikely to appear on the exam, your best strategy is focus your efforts on the issues most likely to appear, such as the big picture issues and the issues tested most frequently.

Hurdle #3: Issues are randomly tested – it’s the luck of the draw.
There is a randomness to the whole bar exam process, as the issues tested change from exam to exam. Since you cannot possibly know everything, you are hoping that the issues tested on your particular exam coincide with the things you know. If you make sure that you know at least a little bit about every issue in your bar review materials, then it is less likely that you will find yourself with nothing to say in response to a fact pattern. Therefore, instead of worrying about what you don’t know, show the graders what you do know and you may still come away with enough points to pass, which is what it’s all about.

Hurdle #4: Bar exam grading is subjective, not objective.
When I review essay answers with students after the bar exam, I am always surprised by the wide range of scores received. If graders were adhering to a strict set of guidelines, you would expect to see more consistent scoring. However, what I find in reality is that some bar exam graders appear to be sticklers for organization, spelling, punctuation, grammar, handwriting, etc. and deduct points for such stylistic errors, whereas others will not. Since the scores do not always reflect the knowledge the applicant has demonstrated, it is clear that there is a subjective element to the grading process. The best way to avoid losing points on an essay where you knew the law is to practice writing essay answers that are easy to understand and pleasing to the grader. Make sure that your writing style is not getting in the way of what you are trying to say.

Hurdle #5: Bar exam tests things you never learned in law school.
Even if you took all of the subjects tested on your bar exam, there would still be specific issues on the bar exam that you never learned about in law school. In recent years, the bar examiners have tested on issues that tend not to be covered in detail in a typical law school course. Chances are that you will encounter some unfamiliar issues on the bar exam. The good news is that your bar review course is going to be familiar with these trends and will cover these issues.

Hurdle #6: MPT takes longer than 90 minutes to complete.
The Multistate Professional Responsibility Exam (MPT) is an open universe test where you are given not only the facts but also the correct law to apply. If you had unlimited time to complete the tasks, it would be too easy. Instead the bar examiners give you a strict time limit of 90 minutes per question in order to determine whether you can read, analyze, and write under pressure. Too many students fail to prepare for the MPT thinking that the skills they have acquired while clerking for a law firm or from legal writing classes in law school are the skills that will carry them through the MPT. While the bar examiners claim that the MPT tests your ability to practice law, the truth is that the MPT only tests one skill: your ability to take the MPT. The only way to improve your MPT performance is to simply practice, practice, practice. The more you practice the MPT under timed conditions, the better you will be at taking the MPT under the 90 minutes. It’s not simply about whether or not you can answer the MPT questions. Rather it is about whether you can complete them within the 90 minutes allotted.

Hurdle #7: There are no correct answers on the MBE
Unlike other multiple choice exams you have taken in the past, the multiple choice test on the bar exam does not ask you to merely identify the “correct” answer. Instead you are asked to select the “best” answer choice from among the four flawed answer choices provided. This requires a careful process of elimination in which you weigh each answer choice against the others to find the least wrong answer from among the four imperfect options presented to you. With practice you can learn how to eliminate the obviously wrong answer choices and increase the odds that you will choose the best answer.

While many worthy bar applicants have had promising legal careers cut short by the bar exam, the good news is that the percentage of students who will pass on their first try is greater than the percentage who will not. So while the bar exam may not be a fair test of your ability to practice law, the ability to pass the bar exam is something you are certainly capable of mastering.

The MPT – What does it really test?

The Multistate Performance Test (MPT) is the most misunderstood part of the bar exam. However I do not blame students for failing to appreciate what the MPT is all about. They are only relying upon what they are told.

According to the National Conference of Bar Examiners’ MPT Information Booklet, “The MPT is designed to test an applicant’s ability to use fundamental lawyering skills in a realistic situation. Each test evaluates an applicant’s ability to complete a task that a beginning lawyer should be able to accomplish.” So, the bar examiners would have you believe that the MPT simulates a typical day in the life of a newly hired legal associate.

Let’s be honest. How often do you think a first year law associate at a firm is approached by his or her boss and handed a memo asking the associate to draft a document he or she has never before drafted, which must be completed in only 90 minutes? Furthermore, the attorney has never heard of or met the client and must rely solely upon the factual information contained in a small file. Plus the attorney cannot do any legal research but must instead rely solely upon the legal sources contained in another folder, all of which are totally unfamiliar to the attorney. Oh, and did I mention that the attorney will be punished if he or she uses any prior legal knowledge in the preparation of this document?

Unfortunately, too many bar applicants buy into this fiction that the MPT simulates your ability to practice law. If that were true, then bar applicants who clerked for law firms during law school or who practiced law in other jurisdictions would have no trouble scoring high on the MPT with little or no outside preparation. However, my experience as a bar review instructor has shown me otherwise.

The truth is that the MPT really only tests one thing . . . your ability to take an MPT. The sooner you recognize this fact, the sooner you can devise an effective game plan for conquering the MPT.

Unfortunately, many students decide that they do not need to prepare for the MPT because they believe that they already possess the skills that the bar examiners claim to be testing. These students are shocked to find that their legal writing skills do not translate to success on the MPT. This is mainly due to the fact that the MPT is an artificial exercise.  In real life, you usually have more than 90 minutes to familiarize yourself with a case and to research the relevant facts and law. You can also take more time to draft the document and revise it as necessary.

If the bar examiners gave unlimited time to complete each MPT, most students would eventually figure out what to do. Unfortunately, your time on the MPT is limited. It turns out that 90 minutes is never enough time to do justice to these MPT questions. However, since that is all the time that you or anyone else ever gets on an MPT question, you must learn to complete a passable answer in that amount of time. This is a skill that must be practiced.

In your practice sessions, try to break down the MPT exercise into a series of tasks and then try to get a sense of your timing for each task. In other words, how long does it take you to read and understand the task memo? How long does it take to extract the relevant facts from the file? How long does it take you to figure out the relevant legal principles in the library? How long does it take you to organize and outline your answer? How long does it take you to draft your answer? If you find that you are exceeding the 90 minute time limit on your practice MPTs, then figure out which part of the process is slowing you down and work on ways to speed that up. As you do more practice MPTs, you should be able to improve your speed in each area as you develop a better appreciation for what you need to do. You will be able to more quickly complete each of the above tasks without any reduction in the quality of your answers.

Spend no more than the allotted time (90 minutes) doing a practice MPT question. When you are done, be sure to allocate at least as much time for reviewing your MPT answer as you spent doing the MPT question (another 90 minutes). Therefore, you should allocate a total of three hours to a practice MPT question to allow enough time to complete the answer and review it.

Make your mistakes on the practice tests not on the real exam. Your first few attempts at taking an MPT will probably not go well.  Do not get discouraged. If you take each opportunity to practice and improve you will find that not only will you be able to complete each question in less time but your answer will more closely resemble what the Drafters’ Point Sheet (the answer key provided by the National Conference of Bar Examiners) describes as the ideal answer.

So heed my MPT advice and pretty soon you could be a real law firm associate working on a real legal assignment. Hopefully, your real boss gives you more than 90 minutes to complete it!