Monday, December 17, 2012
Not taking the bar exam until summer but curious about what to expect? Thinking about ways to get a head start on your bar prep over the break? Want to have a better idea of what is required in your state when applying for the bar exam? Great! Advance planning is an essential ingredient in your bar exam preparation. Here are a few ways to get started without causing anxiety, taking too much time, or causing you to feel overwhelmed. In fact, these helpful ideas will help reduce the brewing stress that the bar exam produces and will help you feel more in control when you are studying for the bar exam this summer.
1. Plan financially for the bar exam. This could mean stocking away money every week reducing your current spending (forgo that extra latte, brown bag it, or take the bus instead of paying forparking), or creating a budget that incorporates your bar review expenses. Taking the bar exam can be an expensive endeavor. So even if we avoid the fiscal cliff, a substantial expense is still in your future. You should anticipate spending approximately $2000-$6000 for your bar preparation.
2. Make your hotel reservation. It may seem too early to call the hotel closest to the bar exam testing center, but it is not. Hotels book quickly and you want to have a choice as to where you stay when you take the most important exam of your life. Find out where your state bar will take place and research the hotels in the area. Once you have made your selection, call them directly and ask for the group rate, use your AAA discount (or other discount), or search online for the best deals.
3. If you have not already, sign up for a commercial bar review. In these economic times, many students ask me if taking a bar review is really necessary. Resolutely, my answer is always yes, a bar review is necessary to achieving success on the bar exam. Take your time to determine your options and how they will suit your individual needs. Bar prep courses are an investment, see item #1 above, but one that is wholly worth it.
4. Check out The National Conference of Bar Examiners (NCBE) web page at www.ncbex.org. You will find information regarding the MBE, MEE, MPT, MPRE, and UBE. There are also helpful articles and resources regarding every aspect of the bar examination process from bar exam application information, character and fitness issues, and psychometrics and scoring of the bar exam. Even if you have a limited amount of time, I highly suggest becoming familiar with the NCBE’s website.
5. Similarly, think about where you want to sit for the bar exam. Once you have thought through where you want to be licensed, determine the jurisdictional requirements in that state. Contact the licensing entity and review the Comprehensive Guide to Bar Admissions published by the NCBE and the American Bar Association. In this document, you will find information regarding every aspect of the bar examination and contact information for state bar admission agencies.
Thursday, December 13, 2012
When repeat bar takers come to me for assistance, there are many facets to my strategy to help them. In previous posts, I discussed how to lend support and encouragement, how to help them diagnose their weaknesses, and how to destroy their self-doubt. Now, the next and final phase is to start planning for their next (and final) attempt at the bar exam.
A strong plan will make a huge difference in their preparation. I ask them to map out the next two to three months. They can print a blank calendar; use an online program; represent days on index cards and tape them to a wall; or use a white board. But, I find that they need a visual because it provides motivation, perspective, and a finish line.
Realistic, achievable goals are important for repeat exam takers. Easily reached goals are ineffective; but, goals that are challenging but doable provide the incentive students need to keep progressing. One tip is to have them use learning strategies like chunking to guide their organization of the material that they will be studying. Taking small chunks or pieces of subject will help them feel more in control and less overwhelmed.
Although they may get a calendar from their commercial bar review, since they are repeaters, I ask them to create their calendar based on their individual priorities and needs. They may need to spend more time memorizing, or more time on a particular subject, or they may need to concentrate their time on essay writing practice. In multistate jurisdictions, some students may need to devote more time to the MBE questions than the written portion or vice versa. Yes, they need to study every subject and they need to practice within every subject, but I want their schedule to reflect the specific needs we have diagnosed.
In addition to creating a calendar outlining their study schedule, I ask them to infuse a few “rewards” into their daily or weekly routines. For some, a reward will be time for an exercise class or a run around the lake. For others, it will be enjoying happy hour with friends on a Friday night. For students with children, it is carving out time to suit the needs of their family. It is a mistake to leave these soul- filling, stress releasing activities off of their schedules. Plus, when a productive environment with sufficient break time is created, the student is less likely to procrastinate.
Before they leave my office, the reality is that I may never see them again, so I not only try to get them to make a plan, I also try to get them to make a deal. The deal is that they commit to passing the exam this time around. While this seems like a simple statement, the ripple effect is powerful. They have made a conscious decision in my presence to begin again and declare their ability to pass. Now, they are ready, they are empowered, and they are equipped with the tools to help them succeed.
Best wishes to all of the repeater exam takers this coming February!
Wednesday, December 5, 2012
I know this title sounds like a new Hollywood apocalyptic action film; but, it is not. Instead, this is the next step that I suggest repeat bar examinees take in their journey to passing the bar exam. Once these grads have processed their emotions regarding their bar results, they are ready to look toward the future.
Diagnosing weaknesses from their past exam is helpful so that they know how to effectively structure their study schedule for the upcoming exam. I read through their essays and look for accurate and complete issue identification, errors or law, and their use of key facts in their analysis. (The WA bar exam is currently essay-only.) I also pay close attention to their organizational framework and approach to each essay. I find that students with weak organization likely did not write enough practice essays. Or, they wrote practice essays during bar review; but, they either did not write the essays under testing conditions (closed-book and timed) or they did not evaluate their essays after writing them. I ask them to assess how they studied for the bar the first time and to think about ways they could improve their routine.
Delivering tough love is also a necessary part of this process. Sometimes delivering tough love along with pointing out their imperfections is too much for them to take in one sitting. One must tread lightly and gauge emotional stability when dealing with repeat bar exam takers. While you may hear Aaron Neville crooning the song “Tell it Like It Is” in the back of your mind, these repeat exam takers may not be prepared mentally to hear what you have to say. If you recognize that they have not already reached a level of acceptance with their results, they may not be ready to move forward with the rest of the meeting.
However, it is counterproductive to merely tell these grads what they want to hear. They are in my office for my honest opinion about what they did wrong and how they can remedy those defects. Thus, I offer constructive criticism and try to deliver it with a spoonful of sugar (…it helps the medicine go down). As mentioned in my earlier post, I always have a basket full of chocolate nearby and that seems to help.
Likely, there are high points in their exam file. I focus first on a good example or concentrate on a higher scored essay. Then, I move to an essay that may need more work. By evaluating their strengths and weaknesses, they have a better understanding of which features to maintain and which to change. In recognizing their strengths; they build confidence. In understanding their weaknesses, they build up their determination and resilience, which they will need in order to move forward.
Together, once we have diagnosed the flaws in their past exam and identified their strengths, I instruct them to put that exam away and stop thinking about it. They can no longer change what happened during that 2 day exam. It was a snapshot in their life, which will be filled with a million more. In order to move forward, one must let go of the past. It is time for them to destroy their self-doubt. It is time for them to destroy the negativity around their past experience. They cannot make a new plan without first destroying any uncertainty that they have in their ability to pass.
Friday, July 20, 2012
Recently I had the opportunity to attend a lecture given by Sian Beilock, Associate Professor of Psychology at The University of Chicago and author of Choke: What The Secrets of the Brain Reveals About Getting It Right When You Have To. The lecture focused on the science of why individuals choke under pressure and how to best avoid performance anxiety. While the lecture did not focus on the stress applicants feel taking the bar exam, it was wholly applicable.
When pressure and anxiety to perform is high (like the bar exam), the brain’s prefrontal cortex, which is responsible for our working memory, focuses on the anxiety instead of recollecting essential information for successful performance. When a student is filled with too much anxiety, regardless of their aptitude, the anxiety interferes with their thought process and almost turns off their working memory to anything other than the stress of the event. This is why we often see highly intelligent and capable students perform below expectations in testing situations.
There are several ways to help students avoid this prefrontal cortex reaction. One, which is often employed by commercial bar reviews, is taking practice tests under timed conditions. These simulations help the brain overcome stress and will likely prevent students from “choking” during their actual test because they have established coping mechanisms to deal with their stress. Therefore, during the real test, they can practically operate on autopilot without stress interfering with their working memory.
Additionally, positive self-talk is an important aspect of testing success. Professor Beilock suggests that writing about your stress for ten minutes before an exam will free working memory. This cognitive function can instead be applied to performing well on the exam.
The simple act of acknowledging fear and stress prior to taking the bar exam could make the difference between passing and failing. I have told each of my students, especially those struggling with intense testing anxiety, to try the writing exercise each morning of the bar exam. I am hopeful that it will calm their fears and help them reach their highest potential next week.
Saturday, May 26, 2012
As the various bar review courses get under way, I wanted to list some of the common mistakes that I see graduates make in their bar preparation:
- Decide to save money and not take a bar review course.
- Coast the first few weeks and lose valuable time in their preparation.
- Look for shortcuts rather than smart strategies: shortcuts undermine learning while smart strategies increase learning.
- Lose their common sense: they do not evaluate what is or is not working in their studying and make adjustments as needed.
- Completely ignore studying for some portions of the bar exam because they are worth less in the weighting (examples: MPT or state evidence/procedure section).
- Go overboard on studying and exhaust themselves before they get to the exam itself.
- Avoid doing lots of practice questions because their percentages are low initially.
- Spend too much time on non-bar-preparation interests: going on a cruise, planning a wedding, remodeling a house, perfecting their abs, training for a marathon (all of these are real-life examples).
- Waste time on e-mail, Facebook, Twitter, and other electronic distractions.
- Work part-time or full-time while preparing for the bar.
- Focus on doom and gloom and convince themselves that they will fail so that they fulfill that prophesy.
- Lack a support group while they are studying for the bar: other bar studiers can encourage one another, answer questions, and keep each other accountable.
- Lose sleep, eat junk food, give up exercise, depend too much on sugar and caffeine: a healthy lifestyle is essential to successful bar preparation.
Best wishes to all of our graduates who are starting their bar exam preparation. (Amy Jarmon)
Friday, May 25, 2012
At the end of the semester, students often ask me if they should begin their bar preparation prior to the official start date of their commercial bar review course. Little did they know, my answer to this question is quite lengthy. I do not have a simple response because every student has unique needs and varying circumstances.
Some students should get started studying for the bar exam directly after graduation because the earlier they get started, the easier bar prep will be for them during the summer. These students may have struggled with essays writing, IRAC format, memorization, or simply take longer than most to grasp the law. If they do know how to get started, they should discuss their needs with their commercial bar prep provider or their Academic Support team. Since most bar prep courses have online components (lectures, workshops, MBE practice etc.), it easy to begin studying before your scheduled course begins.
Some students finish law school feeling completely exhausted and totally drained. Unlike the students who need to begin bar study early, these students really need a break after graduation. Using the week or two interim between graduation and bar review to renew, recharge, and refresh is the best way for them to ensure success during their bar prep. Not everyone will be lucky enough to spend a week in an exotic destination or on the beach, but even taking a short break from their daily academic routine is just what the doctor ordered.
For both groups of students, it is a great time to get organized. They should create a positive study environment by clearing clutter and cleaning out their living space. They should buy a large paper desk calendar and add the classes for their summer bar review schedule and any essential items or events that they are unable to delegate or eliminate over the summer. Seeing what their life will look like on paper will help ease the shock.
While calendaring, it is easy for students to fall into the trap of filling every second with bar study. Instead, prior to bar review, I encourage students to think of a few ways to find respite from their upcoming, countless hours in the library. Joining a yoga class, carving out time for a date night, or sitting in the sun with friends for a few hours a week can be hugely beneficial. If students plan and calendar these breaks and treat them like a reward for their hard work, they are more likely to stave off distractions during their study time. While I am the first one to tell them that they need to devote 10+ hours a day to studying for the bar exam, I am also a huge proponent of finding balance. (Lisa Young)
Monday, May 14, 2012
The Two Most Common Bar Exam “Confidence Traps” and How You Can Avoid Them
By Ronald D. Dees
Building and maintaining a healthy confidence level is an important component to overall bar exam preparation. There are typically two “Confidence Traps” that cause examinees to be at risk of performing poorly on the bar exam. Students can either be so paranoid about failing that they lose confidence and literally allow their fears to overwhelm them, or on the other end of the spectrum a student can be too confident and thereby underestimate the level of preparation necessary to be successful. By knowing the traits of students who typically fall victim to these “Confidence Traps,” you can evaluate your bar exam confidence level in order to avoid falling into the traps.
The most common confidence trap is the “paranoia trap.” This student is the one who allows his lack of confidence to overwhelm him. The causes of the lack of confidence can be many things. Perhaps the student performed somewhat poorly in law school, or for some reason just does not feel like he can handle the stress and difficulty of preparing for the bar exam.
The key to success for students who lack confidence for any reason is to develop a study plan designed to build confidence through self-assessment and feedback.
If you find yourself in this category, know that you are not alone and the best way to overcome these feelings is to construct a study plan that will help you build a healthy confidence level over time. Doing so will cause you to reach a point where you will know in your heart and mind that you are ready to perform well on exam day.
Many bar takers lack confidence and almost everyone feels overwhelmed by the volume of material they are presented with during bar preparation. Don’t allow such feelings to defeat you. First of all, you must remind yourself that no one gets every question correct or writes perfectly edited script on the bar exam. Secondly, everyone who has ever taken the bar exam felt like they could have used a few more days or weeks to prepare. No student can possibly know “all” of the law. However, if you prepare diligently, on exam day you should feel that you are as well prepared as anyone else in the room and are probably prepared better than most. That feeling itself is a great confidence booster.
Self-assessment and feedback are the keys to building a healthy level of confidence. Throughout your bar preparation, track your progress as you improve on your MBE test questions and take note as you succeed in memorizing more and more law. Write essays and turn them in to someone in your school’s Bar Services or Academic Support Program for review and feedback. If your school does not have such a program, find a professor who is willing to look at your essays and give you feedback.
Another facet of avoiding the paranoia trap is to make a study plan that you feel confident about. It should be one that you know will work for you based on your past success. Stick to your plan, work hard, and work smart. Identify the things you have done in the past that were not helpful or were detrimental to your studying or study habits, and eliminate those things. Constantly assess your plan and be willing to get rid of things that are not working and do more of the things that are working well for you. Keep in mind that you don’t have to have the best score on the bar exam, you just have to pass. However, you want to prepare like you are trying to earn an A, so that even if you have a bad day, you can still be confident that you are capable of scoring a C and passing the exam.
Not as common, but still worth discussing are those bar takers who fall into the “overconfidence trap.”
The student who may fall into this trap underestimates the difficulty, complexity, and demands of proper bar exam preparation. This student typically self identifies as very intelligent and falls into one of two personality types. She may have been either a top-of-the-class “Law Journal Type,” or she was what I refer to as the “Voluntary Under-Achiever.”
The key to success for both of the above types of students is to develop a healthy respect for the difficulty of the bar exam.
The Law Journal Type thinks to herself, “I am one of the top law students in my class, so passing the bar exam is not going to be a problem for me. I will study for it a little, but I am smart enough to pass the bar exam without much real effort. I mean, after all, it is just a test of minimal competency. No problem for a smart girl like me.”
The Voluntary Under-Achiever has trouble staying devoted to studying and typically does just enough to get by. She is smart and knows it. After all she was smart enough to make it through law school with average or above average grades while putting forth only moderate effort. She thinks to herself, “I am a smart girl and I pretty much skated through law school with no problem, so I can do the same on the bar exam. I’ll put in a few hours of study time here and there and maybe cram a little just before the exam, but I don’t need to study for hours and hours, day after day, week after week. I never had to study that way in college or law school and I still passed, so the bar exam should be no different.”
Both of the above types of students need to develop a healthy respect for the difficulty of the bar exam. If you fit into either of these personality types, you need to realize early on that the bar exam is a lot like law school finals, except that it is about five to ten times as difficult. You see, final exams in law school are usually tested over a two week period and you may even have some time to prepare between tests. Furthermore, you typically take four or five classes per semester, so you only have to prepare for four or five legal subjects. Also, many times one or two classes might be a “paper class” where turning in a paper is the final, and one or two classes might also have an open book exam. So, you actually only have to memorize the law for one to three subjects to prepare for finals.
On the bar exam, you will need to memorize the rules of law for 15 to 20 subject areas depending on what is tested in your state. Thus, it will take five to ten times as much work to prepare for the exam as it did to prepare for finals. If you spent three to four weeks preparing for finals, you would need thirty to forty weeks to prepare for the bar if preparing at the same pace that you used in law school. Now, obviously you don’t have that many weeks between graduation and the bar exam, so you are going to have to devote more time per day and per week to studying for the bar than you did in law school, even though you are really smart. Otherwise, you risk being poorly prepared and having an unsuccessful result on the exam.
Developing a healthy respect for the difficulty of the bar exam will help you avoid falling into the overconfidence trap and will motivate you to develop and stick to a study schedule that reflects the time commitment necessary to properly prepare.
In conclusion, the key to this success for all students is to balance a healthy respect for the difficulty of the bar exam with the confidence that comes from being well prepared on exam day. You can allow that healthy respect to motivate you to prepare properly, and in turn, knowing that you are well prepared will help you maintain your level of confidence, reduce stress, and improve your performance on exam day.
Thursday, February 16, 2012
As many of us know, the best way to prepare for an exam is to first know the exam and the skills it will test. Knowing what to expect and how to prepare for the Multistate Performance Test allows for greater success on this portion of the bar exam. For this blog post, I am reviewing Perform Your Best on the Bar Exam Performance Test (MPT) by Mary Campbell Gallagher.
The Multistate Performance Test is a closed universe legal writing problem that tests essential lawyering skills in a timed session. The National Conference of Bar Examiners drafts two MPTs each bar administration. Jurisdictions select whether they want to include one or two MPTs on their bar or whether they prefer to include a state written MPT on their bar exam. Over 35 jurisdictions currently include the MPT as a component of their bar exam. Therefore, this MPT resource is relevant to many ASPer's, law school students, and recent law grads.
In Perform Your Best on the Bar Exam Performance Test, Mary Campbell Gallagher sets out a "Four Part Perform You Best MPT System". This system is laid out in an easy to follow step-by-step approach with detailed directions and benchmark timing guidelines for each step. Since applicants only have 90 minutes to complete each MPT task, efficient time management is essential. These timing guides are right on the mark and will help ensure that students begin their MPT study routine with these important time limits in mind.
In addition to the time saving system for organizing and drafting MPTs, Dr. Gallagher has also included several sample MPT Tasks with analysis, sample answers, and her MPT Matrix. By having several different MPT tasks to practice, applicants will feel more prepared for what the examiners decide to include on their upcoming bar exam. Reading and understanding various task memos will also allow applicants to easily adjust their approach, tone, and format.
Practicing MPTs, creating a system for approaching each type of task, and self assessing individual strengths and weaknesses are beneficial tools for MPT preparation. This book is useful for students in early bar prep during law school or as a supplement to their bar prep materials during their bar review period. I encourage you to check it out and to recommend it to students that may need extra help with the MPT.
Sunday, January 29, 2012
This is a blog post I share with my students on the Monday before the bar exam, when they need that final push to go forth and conquer. I write with the California Bar Exam in mind, but the general ideas can transfer to other jurisdictions.
Tant que je respire, j’attaque!
It’s finally here! Hopefully you set a time today to stop studying so that you can relax and attack the exam with a fresh mind tomorrow morning. Trust me, you’ve been studying for months and a few hours will not make much, if any, difference. As you start to wrap things up, here are a few last-minute reminders:
Mind the clock!
It’s the cardinal rule of bar prep: Do not exceed 60 minutes on any California Bar essay question! No matter how difficult a particular question may be, no good can come from spending more time on one answer at the expense of others. A graduate once admitted to spending extra time on a question that was complex and contained a lot of issues. He received an 85% on his answer – a terrific score – but it was not enough to compensate for the scores he received on the other essays that he had to rush through.
You have no greater friend on the California Bar Exam (aside from your watch) than IRAC. Even if you encounter a “throat-clearer” issue, you can still use IRAC and make your grader happy. For example:
A witness may not testify to a matter unless the witness has personal knowledge of the matter. Here, Wit saw the accident occur, so Wit has personal knowledge.
That is a very short analysis, but it still follows the IRAC format. IRAC keeps your answer organized and is what your graders want and expect to see, so don’t deviate.
Zip your lips!
No matter how tempted you are to rush out of the testing center at lunch and double-check every detail of your answers with your friends before you forget, resist! Graders look at your answer holistically, so why bother comparing your thoughts with someone else? There is a Contracts question on file where the two released answers each decide differently on the UCC/Common Law issue. Can you imagine if those two applicants had discussed their answers with each other after the exam? Each would have spent the next four months fretting about failure, when in reality they wrote the two published answers.
This one is difficult, but important: If you encounter a question on which you draw the dreaded blank, do not panic. All panicking does is waste time. Instead, there are a couple of proactive measures you can take:
What would my mom say?
When I took the bar, the second essay question covered a topic our commercial review professors promised would hardly be anywhere in the MBE, let alone in the essays – yet there it was. Instead of freaking out and thinking about how certain I was that I would fail (okay, maybe I did that for a minute), I thought about the question from a lay perspective: what would my mom, who never went to college, say if I asked her this question? Remember, the examiners are not trying to trick you. If you think about it logically, you probably will kick-start your brain and be able to pick out the issues and even remember some (or all) of the rules.
If you can’t remember a rule, read through the facts again with a critical eye. Why was Fact A included? Why was Fact B included? The examiners tailor their questions so that almost every fact can be used in an applicant’s answer. By reading through the facts and hunting for clues, you can probably “reverse engineer” the rule by picking out the facts that illustrate the elements.
Finally, and most importantly: NEVER, EVER GIVE UP!!
I was reasonably sure that I failed that second question; in fact I’m still not convinced that I got a passing score on it. Unfortunately I also encountered a couple of other questions (not just one) concerning subjects that I did not expect to see at my sitting. On top of all of that, I felt completely confident about five MBE questions – literally, five out of two hundred! But none of this matters because I stayed calm, answered to the best of my ability, and passed the exam as a whole.
So you encounter a curve ball, and you swing and miss. So what? That’s only one strike. If you throw down your bat and walk away, you might miss out on hitting the game-winning home run! Cheesy analogies aside, you simply have to stay positive and keep attacking each question with confidence, even if you have to fake it.
The title of this entry is a quote from Bernard Hinault, who won the Tour de France five times in the 1980s. Translated to English, it means, “As long as I breathe, I attack.” Take that attitude with you into the bar exam for the next three days, and no matter what they throw at you, don’t let it phase you. As long as you breathe, you attack!
I will be thinking of and rooting for every one of you this week!!
Monday, December 12, 2011
A guest post from Ron Dees, of Washburn Law School:
A tool for teaching bar takers the importance and value of accurate and complete rule statements:
As you all know, many times students fail to memorize and/or transcribe accurate and complete rule statements into their exam essays. This almost always leads to incomplete analysis due to missed issues and missed opportunities to discuss facts relevant to those issues. It can also lead to incorrect conclusions. Incomplete analysis and incorrect inclusions in turn lead to lower overall scores on exams. This is an issue that is relevant throughout law school, but is even more important on the bar exam because bar exams are rule based exams. That is to say that legal theory and policy are not heavily tested. What is tested on bar exams is the examinee’s ability to reach a well-reasoned conclusion by applying the rules of law to hypothetical fact situations.
Even after three years of law school, some bar takers simply don’t seem to realize the importance and usefulness of rule statements. They sometimes seem to think of rule statements as nothing more than a technicality to be placed at the “Rule” place marker section in their IRAC or CIRAC format. Thus, it is often necessary to show them the importance of using accurate and complete rule statements. Doing so will help the student do a more complete analysis, and the student will begin to realize the added value of rule statements when shown how using rule statements as outlines for analysis makes formatting and writing essays easier. That in turn can help lower exam stress levels, because the student will feel confident that the rule they memorized during study can be used to easily format essays on exam day.
A simple table can be used as a tool for teaching the importance of accurate and complete rule statements. As the table below shows, breaking down the rule statement into its individual parts or elements allows the student to quickly form an outline for the analysis portion of their essay before they begin writing. This outline allows them two advantages. First, their writing will be well organized and secondly the outline serves as a checklist of items that should be discussed in the analysis. If the rule statement is accurate and complete, the checklist will be accurate and complete, and the likelihood of missing necessary parts of the analysis is lower. If the rule statement is incomplete, the analysis may still be well organized, but vital parts of the analysis may be missing, which will cost the student potential points.
The rule for “piercing the corporate veil” is used here in IRAC format as an example:
Essay Roadmap using complete rule statement
Essay Roadmap using incomplete rule statement
Issue: Can the corporate veil be pierced to reach the personal assets of the shareholders?
Rule: The corporate veil protecting shareholders from personal liability can be pierced to reach the shareholders’ personal assets if: (a) corporate formalities are ignored and injustice results; (b) the corporation was undercapitalized at the time of formation; or (c) the corporation was formed to perpetrate a fraud.
(1)Were corporate formalities ignored?
(2) If so, did injustice result from the lack of formalities?
(3) Was the corporation undercapitalized?
(4) If so, was it undercapitalized at the time of formation?; or
(5) Was the corporation formed to perpetrate fraud?
Conclusion: The corporate veil may not be pierced to reach the personal assets of the shareholders
Issue: Can the corporate veil be pierced to reach the personal assets of the shareholders?
Rule: The corporate veil protecting shareholders from personal liability can be pierced to reach the shareholders’ personal assets if: (a) corporate formalities are ignored; (b) the corporation was undercapitalized; or (c) the corporation was formed to perpetrate a fraud.
(1) Were corporate formalities ignored?
(2) Was the corporation undercapitalized; or
(3) Was the corporation formed to perpetrate fraud?
Conclusion: The corporate veil may be pierced to reach the personal assets of the shareholders.
Student A uses the complete rule as an outline, and we can see that a complete analysis will discuss the existence or non-existence of facts relating to five issues. Student B uses an incomplete rule statement, and thus is missing two sections of analysis that should potentially be included in the analysis. The missing analysis sections result directly from the missing portions of the incomplete rule statement. This represents a lost opportunity to earn points on the essay. The potential points for discussing resulting injustice and capitalization at the time of formation will likely be lost because the student failed to use a complete rule statement as an outline for their analysis.
Furthermore, Student B may reach an incorrect conclusion on the issues discussed due to the same shortcoming. As an example, the hypothetical may contain a fact stating that the corporation has recently become undercapitalized. Student B may thus incorrectly conclude that the veil may be pierced on the grounds of undercapitalization, because the incomplete rule statement does not contain the associated requirement of “at the time of formation.” Student A will be able to use checklist issue number four to cause her to recognize that the undercapitalization came about at a later time in the corporation’s existence and that timing must be considered. Thus, the undercapitalization in the given hypothetical does not fulfill the requirement of “at the time of formation.” Therefore, Student A will correctly conclude that the veil may not be pierced on the grounds of undercapitalization.
An example such as this is often helpful in teaching students the importance of using precise and complete rule statements. First, it highlights how the rule statement can be used to provide a roadmap to success in the form of a complete outline for essay answers. Secondly, it highlights how the resulting outline can aid the student in formulating a complete analysis and reaching accurate conclusions.
Monday, December 5, 2011
The temperature is cooling and the brightly colored leaves are beginning to lose their hold. Autumn vividly embodies transition and change. However, the leaves are not the only things changing; changes are also underway with regard to the bar exam.
The Uniform Bar Examination is gaining popularity. Recently, Nebraska and Colorado became the latest jurisdictions to adopt the Uniform Bar Examination (UBE). Other States that have begun administering the UBE or have adopted it for future administrations are: Alabama, Colorado, Idaho, Missouri, Montana (conditional approval), North Dakota, and Washington. Susan Case, The National Conference of Bar Examiner’s Director of Testing, announced at this fall’s NCBE’s Anatomy of a Bar Exam Conference that several other jurisdictions are currently considering adopting the UBE as well. Decisions are still pending for Utah, the District of Columbia, and others.
The biggest news regarding this significant change is that Washington State (my home state) will begin administering the Uniform Bar Examination in the summer of 2013. Washington has been a holdout state (along with Louisiana, who is also now considering changes to their exam) until now. Washington State’s current bar exam is essay only. Yes, it is true, presently WA does not require the MPT, MBE, or the MPRE; at least not until the summer of 2013 when the UBE will first be given in Washington.
Some of you may be asking, “What is the UBE and how it is different from what states are currently administering?” Although, the Uniform Bar Examination does not differ greatly from what most states are administering twice a year, there are a few exceptions and some potential benefits with its adoption. The Uniform Bar Exam consists of the Multistate Bar Exam (MBE) (200 multiple choice questions), the Multistate Essay Exam (MEE) (six essays), and the Multistate Performance Test (MPT) (two 90 minute closed universe legal writing tasks). For the UBE, the MBE is worth 50%, the MEE is worth 30%, and the MPT is worth 20% of the overall score. The overall score, or the “UBE score”, is the important number in this equation.
Score portability is the major selling point for this exam. But it is important to remember that the UBE score is portable, not the applicant’s pass status. Therefore, if an applicant passes the UBE in one jurisdiction, they may not pass in another. Admission is not automatic. An applicant needs to reach a passing UBE score in each jurisdiction for which they are applying. Therefore, a higher score on the UBE allows for greater ease of portability.
Other factors may also influence whether the creation and adoption of the UBE produce a positive impact on the ability to move from state to state in search of legal work. For one, UBE scores do not last forever. Thus, once a student takes the UBE, the score is only portable for a time frame determined by the state accepting the UBE score. What this means in reality is that portability may be short lived unless the applicant obtains licensure in multiple jurisdictions soon after taking the UBE.
While maintaining a license to practice law in multiple jurisdictions could be a positive step in one’s legal career, it is also fraught with possible hardships; namely, financial ones. According to the Comprehensive Guide to Bar Admission Requirements (produced by NCBE and The American Bar Association), applications fees for bar admission cost between $100- $1500 depending on the jurisdiction. Additionally, in order to maintain multiple licenses, yearly license renewal fees, pro bono requirements, and mandatory Continuing Legal Education credits may be required in each jurisdiction. In light of the state of the US economy, fees and requirements such as these may pose a genuine disadvantage to holding multiple bar licenses.
Will the advent of the UBE create more lawyer migration and/or provide more job opportunities for new law graduates? Potentially, yes. Here is the bright side of the UBE. The UBE could create more opportunities for new law grads by giving them more flexibility in where they are able to seek employment. Considering the legal job market, this could be a huge benefit for new attorneys willing to migrate to more marketable jurisdictions.
While in theory the UBE appears to have many benefits, more seasons of UBE test taking need to pass before this question can be precisely answered. Missouri and North Dakota administered the first UBE in February 2011, Alabama in July 2011, Colorado and Idaho will administer the UBE in February 2012, Nebraska anticipates the effective date of adoption to be January 1, 2013, while Washington will administer the UBE in July 2013. Once the UBE is underway in more jurisdictions and UBE transfer data is compiled by the NCBE, we will likely see the true benefits of the Uniform Bar Exam.
Until these benefits emerge, it is important to have students thoughtfully consider where they would like to live and work before applying to take the bar exam. The UBE will likely allow law grads greater mobility but not without a potential price. Although an essential rite of passage, the bar exam is not a task worth repeating and if the UBE makes that possible I hope we see more states sign on.
*Information regarding the UBE and UBE jurisdictions obtained from the NCBE and ncbex.org.
Tuesday, November 15, 2011
Keith Elkin, Dean of Students at Dickinson School of Law - Penn State Law, has published a book through Wolters Kluwer on studying for the MBE. The book is titled MBE: Beginning Your Campaign to Pass the Bar Exam and was published in the summer.
Keith teaches Fundamental Skills for the Bar Examination at his law school and has based the book on his experiences with his students. His goal in the course and with the book is to prepare students for their commercial bar review courses by providing them with practical ways to study and learn for the bar exam. Thus, the book is an early preparation tool to be used in law school bar preparation courses or by students who need additional learning techniques to be successful.
His approach is focused especially on the bar-takers who will struggle in their bar preparation: poor performance in law school, previously failing the bar, foreign lawyers, and others. He explains the several steps in his approach to preparation and provides the reader with many exercises to learn how to implement his strategies. Using the methods in his course and book has increased his "at risk" students' bar passage rate significantly.
Chapter 1 of the book is an introduction to the bar exam. In Chapter 2, the author looks at the broad lens concept as a framework for identifying the fundamental legal issues and the applicable legal rules for questions. Chapters 3 and 4 look at the narrow lens framework of actively reading fact patterns, asking questions during that reading, and answering those questions raised. Chapter 5 demonstrates how to learn through wrong answers: identifying the mistakes, the reasons for the mistakes, and the right answers. A quick wrap-up of tips is provided in Chapter 6.
If you have not yet seen Keith's book, I would suggest that you take a look at it. This MBE resource may be valuable to you for a bar preparation course syllabus and for your students in their early bar preparation. (Amy Jarmon)
Friday, August 26, 2011
There is no doubt that you have been caught up in the flurry of activity that accompanies the beginning of the academic year. Heavy meddlesome casebooks; jam packed orientation; a throng of new faces; and the cacophony of perplexing terminology bombarding you in each lecture- Welcome to Law School! Although the first days and weeks (or even your entire first year) of law school may seem overwhelming, there are ways to ease your transition and maintain a positive outlook.
Here is one way to get started on the right track with your law school journey. Grab a sheet of paper and a pen (yes, this requires a little work). Do this when you have about 30+ minutes of quiet, uninterrupted time to devote to it. Now, open your mind and focus on yourself…
First, take a few minutes to reflect on your personal strengths. These could be anything from having a friendly smile to being a great basketball player. Create a list of as many positive attributes about yourself that you can think of. Do not shy away from being excessive or even exaggeratedly vain. This list is for your eyes only- so go for it!
Next, write down your fears related to law school. Is it hard for you to meet new people? Are you nervous about the infamous Socratic Method? Are you scared that you do not have what it takes to succeed? Do you think the workload will be too challenging? Again, write it all down. This too is for your eyes only- so try not to limit your list.
Finally, take the remaining time to think of how you can put your strengths to work on your most dreaded fears. This may take some work. Connecting your exquisite knitting ability with your debilitating fear of being called on in class may not seem feasible. However, with a little creativity anything is possible. Such as: if you could knit while being called on in class or while in a study group (possibly with other stitchers), you may find that your anxiety has decreased.
Use your strengths to overcome your fears. If you are a great communicator one-on-one but fear speaking in large groups, try sitting in the front row and pretend you are conversing with only the professor. This may help you in more ways than you can imagine. Grab a seat in the front row and you will likely be more actively engaged and less intimidated or distracted by other classmates.
Acknowledging your strengths and your fears will help you determine your best personal strategy for success in law school. Putting your strengths at the forefront and focusing on them (instead of being destroyed by your fears), will lead to more productivity, less stress, and better mental and physical health (and likely a higher GPA).
Therefore, above all, remain optimistic even on your darkest day. If you need a reminder of how great you are, ask your significant other, best friend, or a close relative. They will help you see through the self doubting haze that many law students acquire their first year. Of course if you need to hear it from an unbiased, trustworthy source, I suggest that you read your list.
Thursday, August 18, 2011
On the heels of my last post, I realized that a time line is appropriate for 3L's planning on taking the bar exam next July. This is especially important if your school does not offer bar prep; every year I hear about students who miss the deadlines for bar exam paperwork because they didn't know when they were due. The best resource when creating a 3L time line is Denise Riebe and Michael Hunter Schwartz's Pass the Bar!; I would strongly recommend it to all 3L's.
A few pointers for 3L's and the ASPer's who work with them:
1) Know the state where you plan to sit for the bar and and the paperwork deadlines.
2) Know what paperwork is required for character and fitness and how long it will take to get the required documents. If students need to request their driving records from a state DMV or work summary from Social Security, they need to know how long this will take.
3) If a student is moving before the bar exam, they need to know when graduation is scheduled and when the commercial bar prep course starts. If graduation is on a Sunday and bar prep starts on Monday, it is good to be packed and ready to go before Sunday night.
4) Know the deadlines for signing up for commercial bar prep courses, and decide if they will need additional loans in order to pay for a course.
5) Ask recommenders how much time they will need to submit a reference.
There are many other pointers for 3L's that are state-specific. These are just a sampling of the things that trip up students and add stress to the 3L year.
Thursday, July 21, 2011
The last week of bar exam preparation is upon us. While everyone studying for the bar exam will need to spend their precious last days slightly differently,all bar applicants need to focus on staying positive and prioritizing their individual study needs. One size does not fit all. Here are a few helpful tips to assist those in their final bar study stretch this summer.
- Make a plan for your last week and stick to it. Prioritize your weaker subjects and/or the sections of the exam that are most difficult for you. Try to gain a minimum level of competency in each subject area and on each section of the exam.
- Clear all non-essential tasks from your schedule. If it does not involve essay writing, MPT practice, or MBE review, do not do it.
- However, it is best to incorporate some physical activity into your day even if it is a just a short, brisk walk. Leave the library or your study area to get some fresh air at least a few times a day.
- Remember that memorization is necessary but without practice, memorization is futile. Memorize, practice, and evaluate your progress.
- Remain positive! Tell yourself daily or even hourly that you can do this. Find strategies to stop negative thoughts. Think about prior graduates who passed on their first attempt, think about all of the long hours you have put into your study, and, most importantly, believe in yourself. Repeat out-loud: "I will pass the bar!"
- Although nothing seems balanced right now, try to maintain a balanced diet. Make good food choices and stay away from the empty calories. Load up on protein and stay hydrated. This will help you stay focused, give you lasting energy, and keep you healthy for your big week.
- Spend 12-14 hours each day studying but do not forget to take care of yourself. Sleep is essential. Do not miss out on the regenerative power of a good nights sleep to learn more about the rule against perpetuities.
- Ask for help when you need it. There are many resources available to you. From friends and family to your law school and bar prep, everyone is invested and committed to helping you achieve success on the bar exam. Reach out, we are here to help!
Tuesday, July 12, 2011
The 4th of July is over. Students have now been studying for the bar exam for at least a month and a half, and they still have weeks to go. Students are tired, and there isn't a break in sight. These are the dog days of bar prep. Many parts of the country are in a heat wave, which means beaches and pools beckon even devoted students.
It is important to keep students going through the dog days of bar prep. Encouragement and strategically timed breaks are critical.
1) Encourage students to mix up their study routines to keep things fresh. It's easy to get bored of bar prep.If they haven't been using flash cards, they should try them now. Study in a different room. Students who try novel ways to mix up their routine recall information better than students who stick with only one method.
2) Breaks are encouraged, but should not be abused. Students need to understand they don't want to peak before the actual exam. If they feel like they are at their very best right now, they need to slow it down. Many super-achievers focus too hard, too soon, and are burnt out before the bar. That is not good.
3) Expect a dip in performance for a week or so. Everyone goes through a period where their progress feels stalled, and they can't find the focus to keep going. It's important to realize that a dip in performance on practice questions is okay if they are still studying.
4) Have an ice cream social for bar studiers, or a movie night that reminds them of why they want to be licensed. Sponsor a night of Legally Blonde or To Kill a Mockingbird. Remind them of why they are putting themselves through this. If money is an issue at your school, ask the development office to sponsor the event. This may be one of the law students last contacts with the school.
5) Shopping should not be a bar prep relaxation technique. This is something I have heard more about recently, in light of the economic challenges facing many law students. Students cannot afford to use shopping as a release, even if they have a job lined up after the bar.
Good luck to all my colleagues who are helping students prepare for bar exams! (RCF)
Thursday, June 30, 2011
I haven't worked on bar prep for a couple of years, but I speak to many colleagues at other law schools who spend most of their summer working with alumni on preparing for the bar exam.This is a short list of recommendations based on what I have heard from colleagues and my own experience preparing students for the bar exam:
1) Never take the bar exam "for practice"
Look at the bar exam for what it is--THE bar exam. Students who worry about anxiety getting in the way of performance sometimes tell themselves they will take it once "for practice" to become acquainted with the exam. However, this can lead them to sloppy study techniques. I hope this attitude becomes more rare with the changes in the economy. Students do themselves a disservice when they try to alleviate anxiety by telling themselves they can take it again, because it removes ALL the pressure. Some pressure to perform is good, because it focuses study. There is a middle ground between paralyzing anxiety and dismissing the exam as practice. Students should focus on that middle ground.
2) Don't let practice tests scare you--let them guide your study
Early practice exams frequently come back marked up with significant suggestions. Students need to realize that they have time to fix the errors. Making mistakes in May and June does NOT mean they are not ready to take the bar exam. It usually means they need more focused practice on the areas that are difficult for them. Don't let students give up if they are struggling.
3) Practice your writing under timed conditions
Some students will take practice exams without the time constraints to test how much they know. This is a mistake because it gives them a false sense of confidence. It does not help a student if they know all the law, but it takes them too long to recall it. Knowledge of the law is critical, but being able to recall the law accurately while under pressure is essential to bar exam success.
4) Stay away from gimmicks
Oh, the gimmicks. There are too many to list. Students hear all about how to "game" the test, strategies to do well on one part and ignore another, or spend disproportionate amounts of time on some area of the law. I am not talking about smart studying based on examination of long-term trends on the exam, which is valid and helpful. I am referring to the word-of-mouth, unsubstantiated gimmicks that students hear about from people who took the bar decades ago, or from friends-of-friends-of-friends. These gimmicks almost always lead to problems. Studying for the bar exam is, for the most part, straightforward. Students need to know the law. Students need to be able to perform under timed conditions.
5) Don't over-study and burn out before the exam
Another tactic of students with exam anxiety is to study 12-14 hours a day, every day, and plan to keep up that schedule for over two months. It is not realistic that your mind or body can maintain that type of schedule. Focused, meaningful study, with breaks and time to enjoy life, is the path the success. It's all about balance. Overstudying means that by the time the exam comes, students won't have the stamina necessary for a 2-3 day test.
6) Don't beat yourself up over minor slip-ups in bar prep
Just like in life, stuff happens. You get sick. You just have a bad couple of days when you can't focus. Your car breaks down and you spend all day waiting for the mechanic to tell you what is wrong. While a bar prep schedule is critical, be sure that the study plan is flexible enough to accommodate life. If something throws the bar prep schedule off course, just get back to the schedule and plan to make up what was missed a little bit at a time, until it's all covered.
7) Don't talk to anyone about the exam during breaks or after it is finished
It is tempting for students on exam day to rehash what was difficult. DON'T LET THEM DO IT! It will freak them out and make them think they failed the exam. What is done is done. There is no point in rehashing the exam, because it leads to unnecessary anxiety.
Friday, May 27, 2011
Many students have the notion that studying for the bar exam is a nine to five venture. “Just like a full-time job…” is what they tell me. There are two major flaws in their understanding. First, am I really the first one to clue them in to the fact that practicing law is not a nine to five gig? Do they truly think that they will be home nightly by 5:30? Sadly, some still believe that they will have more time on their hands when they are working full-time practicing law than they did in law school. I briefly enlighten them to the realities associated with the practice of law but then I focus on a more imminent concern- their bar exam preparation.
Since my main function is to lead them on a path to success on the bar exam, I first need to wipe away any misunderstandings that they may have about the exam or the process of studying for it. Urban myths regularly seep into the law student’s psyche gnawing at their self confidence and challenging their fortitude. Debunking these myths and separating fact from fiction is a strategic starting point as I gradually replace their vision of a nine to five schedule with a more realistic nine to nine one.
For example, end of semester conferences just wrapped up with my Bar Exam Skills Lab students. We have fifteen minutes in which to discuss a myriad of issues. Discussions range from how do I pay for my bar prep class, to how do I study, to lessons in IRAC. But repeatedly the question du jour was, “How long do I really need to study each day during bar prep? Nine-five should really be enough, right?” I was not shocked the first time I heard this but after a few dozen conferences and many similar sentiments, I knew I had some work to do.
First I must ask, is this generational? Unlike many of my students, when I was preparing for the bar exam I understood that my life (my complete existence) would be devoted to bar prep during the summer after graduation. I knew lazy mornings with a cup of coffee and the newspaper, sunny days filled with berry picking and beach-combing, and long weekend camp-outs would be impossible given the shear amount of work ahead of me. For current students (my California dreamers), it was time for me to deliver a cold, harsh wake-up call.
During one of my last classes of the semester, I discussed how to create an action plan for bar exam success. With years of experience helping students through this process and the many useful ideas from the textbook I use, PASS THE BAR by Denise Riebe and Michael Hunter Schwartz , I formulated a snapshot view into the life of a bar student. What an eye opener these soon to be bar takers! Most were shocked by the intensity and length of time necessary to adequately study for the exam. But overall, they were grateful to know how they should be spending their time this summer.
By knowing what to expect and establishing a routine before bar prep begins, students increase their likelihood of success on the bar exam. By heading off procrastination before it starts, delegating unnecessary tasks when necessary, and taking all non-essential items off their calendars, students will free their time and their mind from needless worry.
While their focus this summer is studying, I also encourage them to balance their bar prep with their personal needs. Reminding students that sufficient sleep, good nutrition, and regular exercise are priorities seems a bit paternalistic but I have found that gentle prompting is always welcomed and needed. Balancing and prioritizing our needs and responsibilities is difficult (for all of us). However with careful planning and advanced scheduling, students should still be able to stay healthy, connect with their loved ones, and have some down time while studying for the bar. Although bar prep is not a “nine to five gig”, “it’s enough to drive you crazy if you let it”[i]. Instilling confidence in your students and teaching prudent time management strategies should make the bar prep process more manageable and less unpredictable.
[i]Parton, Dolly. “9-5.” 9-5 and Odd Jobs. RCA, 1980
Wednesday, May 18, 2011
I am going to get meta here and refer to two other blogs writing about something we have blogged about (I think?) and we have talked about in the ASP community. The Faculty Lounge links to Prawfsblog and work by Ethan Leib on mandatory grading curves. Dan Filler comments on something many of us have encountered in ASP; if a student is in the bottom of the class with a 3.0, they can't see they need help. If that same student has a 2.4 (or 2.0) it is a different story; students intrinsically know this a problematic GPA.
Years ago, I encountered this phenomenon with a student with roughly a 2.9/3.0. The student was furious that s/he had to meet with me. S/he was certain she was not struggling, although s/he was in the bottom 10 in the class. S/he was on a journal (one that accepted everyone who applied and had a passing grade in their Legal Writing course). S/he went on to tell me s/he had graduated from high school at 16, graduated at the top of s/her college, and the law school was making a mistake. I spoke with a few faculty members after the meeting, who had a similar experience with the students--the student was deeply in denial, and angry at anyone who tried to confront the problem. I recently saw a link to the student (now alumni) profile on a business networking site, and it appears s/he to be struggling to find work. It also appears that s/he did not take or pass a bar exam, or chose not to list bar passage in their profile.
Would it have helped if the student was at a school with a more harsh curve? I don't know the answer to that. It may have been easier for me to show the student they were in trouble. I think the curve has some pernicious effects on student motivation, collegiality, and morale. But an "easy" curve, such as one that doesn't require grades lower than a B-, may be worse than no curve at all. It lulls students into a false sense of their own competence. A C is a shock to the system in a way that a B- doesn't appear to be.
I don't want this post to sound like I am suddenly a fan of mandatory curves. I actually think they should be abolished. What is happening at many schools, in response to the jobs crisis, is artificial inflation of grades that defeats the purpose of a curve AND hurts students who need extra support. I recieve an email from a former student at least once a week asking for help finding a job; I understand the problem. But I don't think the answer, at least from an ASP standpoint, is to ease the curve and bring students false hope about their prospects and needs. (RCF)
Wednesday, April 20, 2011
Helpful tips for students:
1) We learn better from re-working the material.
This piece of gold is hidden on the second page of the article. It's saying what we have said in ASP for ages; reading a canned outline, or memorizing the outline of a 2L who booked the course, will not increase learning. Re-working your own notes into an outline will help you learn the material.
2) Try one of the unusual font types for your outline.
"Think of it this way, you can’t skim material in a hard to read font, so putting text in a hard-to-read font will force you to read more carefully"
3) We overestimate our own ability.
One of the great lessons from law school exams: if you feel like you nailed it, you probably didn't. The material you are being asked to learn and apply on a law school exam is difficult and complicated. The majority of exams you will encounter as a law student have more complications and nuanced issues than you have time to answer. You should feel as if you didn't hit everything. If you feel like you knew everything on the exam, you probably oversimplified the issues.
4) We all take shortcuts. We all forget we take shortcuts.
Students should always take practice exams before finals. Actually taking the exam is important. Many students will read the fact pattern, "answer it in their head" or take a couple of notes, and then read the model answer. This is more harmful than helpful. Students will unconsciously overestimate what they understood if they have not taken the test and written a complete answer. This gives them a false sense of confidence. Students need to take a cold, hard look at what they understood and what they missed. the best strategy is to take the practice test under timed conditions with a study group, and correct answers as a group. This gives students a chance to discuss what they did not understand. It's easy to lie to ourselves, it's harder to lie to a group.
Summary of the article:
"Concentrating harder. Making outlines from scratch. Working through problem sets without glancing at the answers. And studying with classmates who test one another." These are the keys to learning more efficiently and effectively. (RCF)