Wednesday, December 2, 2020
I write this, or some variation of it, a few times a year. And I do so because I feel passionately that it needs to be heard. Many of you are getting Bar Exam Results right now, and if the news is good, great! Congrats! However, for some of you, the news is less than idea. That's ok too. Read on!
First and foremost, this does not define you. Trust me, we have all heard stories of prominent lawyers, judges, and politicians that have failed the bar, sometimes multiple times. I could make you a list of all of the successful lawyers that were unsuccessful on the bar exam their first time. In fact, you likely have bosses, professors, or have met judges or elected officials that have failed the bar, and you might not even know! That's because failing the bar does not define them. If you try to make a list, you won’t find “failed the bar” on Wikipedia pages, or official biographies, or resumes. It’s not because it’s some secret shame, but because no one cares. In 5-10 years, no one will care how many times it took you to pass the bar. In fact, they won’t care in 6 months or a year. It seems like a defining moment right now, but it isn’t. Your defining moments come from the way you treat clients, the way you treat colleagues, and what you choose to do with your license once you have it.
So, take a few days to be upset, it’s ok. Also, remind yourself that you are in a pandemic! And for most of you, the goal posts around the exam kept changing. There was so much extra stress involved in this last Bar Exam, and to be honest, so much extra stress in life. Sure, you might be sitting here thinking that you don't want to make excuses, and that's admirable. But, this isn't an excuse, it's reality. You were likely studying for, or taking the exam, in less than ideal circumstances. So, given that, cut yourself some slack.
Then, remember that you don't owe anyone an explanation. No one. Yes, you have a duty to be honest. If you currently have a law related job, or are in the hiring process, yes, you have to tell your employer or future employer. And you can't pretend to be licensed when you are not. But beyond that, you don't have to explain this to well meaning family or friends, or anyone else. However, you also want to trust me when I say that more people will understand than you think, and very few people will judge.
So finally, dust yourself off, and start looking towards the next bar. Also, remember that failure is not the opposite of success, it’s a part of success. Every successful lawyer has failed – on the bar, at trial, in a negotiation, not getting a job. Every failed politician has lost a race. Every failed Olympian has lost a game or a match. That failure is a normal way to achieves success in the future. However, for that to be true, you have to learn from failure. So, what can you do?
FIRST: Look at your score (if your state gives you the breakdown) and request back your essays (if you can). It's going to be hard, you likely don't want to look back. But you can learn so much from those scores and the essays!
Once you have your essays, I want you to do a couple things. Review your answers. Now that you are removed from the day of writing, what do you notice? If possible, compare them to the sample answers. See if you can pick out patterns. Don’t just focus on the conclusions, or the issues spotted. Did the sample answers use more facts? Or have a more in depth analysis? Be honest with yourself. Also, if you have a varied set of scores (one essay is a 1, while another is a 5) compare the 2. What is the difference? Don’t just shrug it off as you know one subject better. Pay attention to the writing in both.
THEN: Look at your score. How close or far away are you from passing? Did you do better on a certain subject? Is your written score considerably better than your MBE score? This is an excellent place to start. Some things to keep in mind:
- If your essay score is higher than your MBE, it may be tempting to place most of your energy into MBE practice, and forget about essays. This will only result in your score “swapping.” So, while it is good to note that you might need more work on the MBE, don’t forget that you aren’t carrying the score wit you so you still need to practice essays. The reverse is true if you did better on MBE than the essays.
- Perhaps you did really well on the torts MBE, but your lowest score was civil procedure. Again, do not just focus on civil procedure, and forget other subjects. Your scores will just swap places, and not improve overall.
- You might be only 2 points away from passing. Great! However, your score is still starting from scratch. Meaning, in one sense, you only need 2 more points, but that’s not how the bar works, obviously. You have to still work to get the points you already got AGAIN, and it is likely you forgot things, and are out of practice.
NEXT: Think about external factors, ya know, like a pandemic!
Did something unrelated to the bar impact your studying? Perhaps a health issue, physical or mental? Perhaps a family emergency, or ongoing family issues? Did you have a good place to study? Or time? Much of this might have been beyond your control, and it might feel like you are searching for excuses, but really, you are analyzing the situation so you can create a plan moving forward.
Have you suffered from anxiety in general or related to exams? If you do, are you being treated for the anxiety?
These things can and will impact your studying. Not matter how much time and effort you put in, if you are not physically and mentally healthy, you won’t process the information correctly.
Not to mention, if there is something in your life that is distracting you, that will also impact how you process information, which will impact your score.
REVIEW: Your study habits!
The most important thing you can do is practice. Many bar students get caught up in trying to memorize every sing law, or master every subject. While this is admirable, and takes quite a bit of time and effort. However, mastering the bar is a SKILL. You need to practice. When I work with repeat takers, I often find that they knew the law, and they studied hard, but didn’t practice enough essays or enough timed MBE.
This matters for a few reasons. One is timing. You can know all the law in the world, but if you can’t write an essay in 30 minutes, you will struggle to get the scores you need. Similarly, doing 100 MBE questions in 3 hours is not easy, even if you DO know the law. You need to practice the timing, and practice for the stamina.
Secondly, the skill being tested on the bar is applying the law to the unique set of facts. Yes, you need to know the law to do this, but knowing the law is not enough. You need to practice the application.
This means that writing essays, fully out, not just passively reading sample answers or issue spotting, is key. It has to be a priority in studying.
In fact, all of your studying should be active. Don’t focus on rewriting, or reviewing, outline after outline. Again, yes, you need to know the law, but you are also more likely to remember the law if you apply it – in MBE questions, writing essays, and so forth.
FINALLY: Meet with your Academic Success Professor, if you have one. We are here to help, I promise! I always hope that if my students aren't successful, they will come see me right away. We want you to! And we want to help you go through those essays and that score report, and create a game plan. Trust us, it's what we do! Maybe you don't know why one of your essays was given a 1, while another was a 5. We are trained to help you! We can help you with all of the above!
LAST: Change it up. Your Academic Success Professor can likely help you identify ways to change the way you studied, or identify different resources you might use.
Also, don't forget about non standard testing accommodations. I've had students fail the bar because they use non standard testing accommodations all through law school, and then decide not to apply for those same accommodations on the Bar Exam! That's just silly. You are entitled to them. Yes, the application process can be frustrating, but at least try.
Finally, if you don't have an Academic Success Professor to help you out, here are some resources that I give to my students:
CALI lessons! Which are free, always a bonus!
- CALI Lessons on improving multiple choice:
- CALI Lessons on improving memory: https://www.cali.org/lesson/18157
- CALI Lesson on issue spotting: https://www.cali.org/lesson/18169
- CALI Lesson on improving analysis: https://www.cali.org/lesson/18171
Other Resources, sadly not free, but some can be helpful. If you do have an Academic Success Professor, they might have discount codes, or other ways to help you get the below resources.
- Adaptibar: https://www.adaptibar.com/
- Strategies and Tactics for the MBE: https://www.amazon.com/Strategies-Tactics-MBE-Bar-Review/dp/1543805728/ref=sr_1_1?gclid=CjwKCAiA-vLyBRBWEiwAzOkGVArOgksVIJF-Ay7c5WMFApM2Dic8N2-DFZSxm95A23E0b-sHif7OthoCQmQQAvD_BwE&hvadid=241627170717&hvdev=c&hvlocphy=9021760&hvnetw=g&hvqmt=e&hvrand=7692014818673609309&hvtargid=aud-840076997981%3Akwd-555060935&hydadcr=22595_10356262&keywords=strategies+and+tactics+for+the+mbe&qid=1583177627&sr=8-1
- Private tutors, which can help you create a plan and personalized study process. I send my students to:
Above all else, don't give up! I'll say it again, this does NOT define you, not as a person, not as a future lawyer. This is one small hiccup on your road to a fantastic career. And it's frustrating yes, but you WILL get past it!
Sunday, November 15, 2020
Ben Barros will be moderating two panels featuring representatives of the NCBE at the upcoming AALS Annual Meeting. He is seeking your questions for the first panel. Please send questions to him at email@example.com. Here are the panel descriptions:
Saturday, January 9, 2021, 1:15 – 2:30 pm Eastern
National Conference on Bar Examiners - A Conversation With the Bar Examiners
This session will be a moderated discussion with representatives of the NCBE. Topics will include the basics of test design, validity, reliability, question development, cut scores, scaling, subject matter outlines, transparency, and the impact of the bar exam on the legal profession. The panelists also will discuss the October remote bar exam and the upcoming February exam. The organizers will solicit questions in advance from law faculty, especially those who focus on academic support and bar exam success.
Saturday, January 9, 2021, 2:45 – 4 pm Eastern
National Conference on Bar Examiners - Testing Task Force Update
This session will describe the work of the NCBE’s Testing Task Force, which is engaged in a robust data-informed study of the bar exam. The session will discuss the Task Force’s methodology and results, and will outline potential changes that may come to the bar exam as a result of the Task Force’s work.
Thursday, November 12, 2020
In general, I don't believe in show and tell lectures. In particularly, I'm not convinced that a few powerpoint presentations about the benefits of mindfulness or positive growth mindsets can make much of a difference in academic performance. But, I do believe in the power of show, tell, and do experiences in changing lives for the better. And, there's research out of California funded in part by AccessLex to support my supposition.
As previously detailed, a brief intervention focused on belonging can make a big impact on undergraduate academic performance, especially for underrepresented minorities. Be-Long-Ing! It's Critical to Success (Oct. 3, 2019). Now, researchers in partnership with the State Bar of California and funding from AccessLex have expanded that work to the field of bar licensure. https://mindsetsinlegaleducation.com/bar-exam/
The brief 45-minute online program was made available to all bar takers for both the July 2018 and July 2019 California bar exams. Id. Interested bar applicants were able to freely sign-up for the program, which was timed to coincide right before bar preparation studies began. "The program include[d] an introductory film, stories from prior test takers, and a writing activity in which participants share[d] insights and strategies that m[ight] be useful to them and to future test takers." Id. In their research, the authors controlled for traditional bar performance predicators (LSAT and LGPA) along with psychological factors, demographic factors, and situational factors to evaluate whether the brief 45-minute intervention yielded statistically beneficial improvements in bar exam outcomes. Id.
According to a summary of the findings, "[t]hose who completed the full program and thereby received the full treatment saw their likelihood of passing the bar exam rise by 6.8-9.6%. Among all people who passed the bar after completing the program and thereby receiving the full treatment, one in six would have failed the bar if they had not participated in the program (emphasis in original)." Id. Significantly, as stated more completely in an article by the researchers, "[t}he program particularly helped applicants who were first-gen college students and underrepresented minorities, according to our analyses." Quintanilla. V., et al., Evaluating Productive Mindset Interventions that Promote Excellence on California’s Bar Exam (Jun. 25, 2020).
In finding evidence in support of the program, the authors posited a possible social-psychological explanation for the promising results:
"The California Bar Exam Strategies and Stories Program was designed to improve passage rates by changing how applicants think about the stress that they encounter and the mistakes that they make when studying for the exam. Our initial analyses of the effect of the program on psychological processes suggest that the program worked as intended, by reducing psychological friction. Participants appear to have succeeded in the face of stress, anxiety, and mistakes by adopting more adaptive mindsets. They moved from a stress-is-debilitating mindset to a stress-is- enhancing mindset. They learned to reappraise the anxiety they experienced. And they shifted toward meeting mistakes with a growth mindset rather than a fixed mindset." Id.
As I understand the research, the researchers provided bar takers with research about tactics to turn stressors from negatives into positives and engaged bar takers in implementing those strategies. In my opinion, a primary reason why the intervention was so promising rests with the last step of the intervention, in which bar takers took positive action to help future bar takers, by having bar takers write letters to future takers sharing their experiences in learning to transform frictions into pluses.
In short, the intervention empowered people to make a difference, not just for themselves, but also for future aspiring attorneys. That's a wonderful win-win opportunity. And, there's more great news. The researchers are looking for additional participants to expand the program to other jurisdictions. For details, please see the links in this blog. (Scott Johns).
Friday, November 6, 2020
The NCBE Released the Phase 3 report from the testing task force today. Phase 3 focused on test design, including method and substance. I quickly skimmed the report, and the results are interesting. One of the quotes from a panelist that jumped out at me was the exam should not test "exceptions to the exceptions". I definitely agree with that statement.
I encourage everyone to read the report and stay engaged in this process. You can find the report here.
Friday, October 30, 2020
AccessLex released additional research on the California bar exam this week. The additional study analyzed California's Supervised Provisional License Program. Here is the information for the report:
A Five-Year Retroactive Analysis of Cut Score Impact: California’s Proposed Supervised Provisional License Program: http://ssrn.com/abstract=3716951.
Over the last 6 months, we witnessed ASPers along with other faculty members publish numerous pieces on the bar exam. I am encouraged that we are actively engaging the community to build a better test. I hope we continue to advocate for our students until the test reflects an appropriate assessment of competence.
Thursday, October 29, 2020
Hat tip to Prof. Natalie Rodriguez!
Speaking of hope, here's a new article entitled "Building a Better Bar: The Twelve Building Blocks of Minimum Competency." https://iaals.du.edu/publications/building-better-bar The prelude argues that bar exams should be open book, using written problems only (no multiple-choice questions), set in practice settings, with more time for responding to questions.
Thursday, October 22, 2020
Here's a quick read describing the concrete steps and the rationale behind those steps that led to increases in bar exam success for one law school's graduates. But be forewarned. It didn't happen due to sudden magical moments as students prepared for their bar exams. Rather, as Professor O.J. Salinas documents, the remedy took shape as a community-wide effort right from the start of their students' legal educational experience as 1L students. O.J. Salinas, Improving Bar Exam Success: Curricular Changes at the University of North Carolina, The Bar Examiners (Summer 2019).
Wednesday, October 7, 2020
As I write these words, my former students are busily working through the final session of the most unusual and stress-inducing bar examination I have ever known – one that has been twice delayed, resulting in erratic study schedules and lost employment opportunities; that is being delivered entirely online using new software, after the cancellation and hacking of online exams in other jurisdictions this summer; that permitted registration only to certain groups of law school graduates, some of whom waited on tenterhooks for weeks before finding out that they would be permitted, or not permitted, to take the exam; and that examinees had to prepare for in the midst of a global pandemic and one of the most contentious political environments in the past 150 years. The last five months have provided a cavalcade of anxiety, uncertainty, pessimism, and anger, marching in different permutations through opinion pieces, Facebook posts, public hearings, Twitter threads, and Zoom discussions, week by week, right up until yesterday at noon, when the examinees finally had to slay the dragon.
And yet. Here we are, 30 minutes or so from the end, and mostly . . . things seem okay.
Except for the odd momentary computer freeze, I have not yet received any panicked reports of tech problems – no crashed programs, no lost data. The dozen or so graduates testing on campus have been in cautiously good spirits and have reported that they felt the test has been fair. The graduates testing at home have largely been quiet, though I encouraged them to reach out to me if they encountered any difficulties.
This is lucky, to be sure. Although in the media (social and traditional) I found no reports of widespread, catastrophic system failure, there are plenty of individual reports of examinees losing data, having trouble with facial recognition software, or simply being unable to get the testing program to work. According to ExamSoft, the company whose software delivers the exam, 98.4% of the estimated 40,000 examinees had successfully started the exam by late Monday. Even if some people chose at the last minute not to take the test, that still leaves potentially several hundred frustrated examinees.
So far, my graduates have not reported problems. Still, we might just be in the eye of the hurricane. It remains to be seen if everyone can upload all the required answer and video files before tomorrow night’s deadline. An overly fastidious review of the video files captured by the remote proctoring program could lead to objectionable disputes or even disqualifications. And it is impossible to predict what the grading will be like, given the smaller number of questions, limited pool of examinees, and delay in administration, compared to an ordinary bar exam. If the results that come out in December are wildly different from those of previous years, there may be complaints that it was too hard – or too easy.
Nevertheless, the facts that we have now arrived at the end of day two of the remote examination without witnessing the “barpocalypse” some had predicted, and that we have not yet arrived at any foreseeable end to the pandemic that forced remote testing in the first place, suggest that we should at least be thinking about preparing for another remote test in February. There may be other approaches to bar admission, such as diploma privilege, that we should continue to advocate for. But there was always the danger/promise that a relatively successful remote administration would lessen resistance to future remote exams.
I am pleased to see that – at least according to the early reports from my students – the nature of the remote exam seems to have caused far less distress than the delay and uncertainty that preceded it, and which hopefully will be avoided in the future. And I am enormously proud of the effort, attitude, and skills that these examinees displayed under such extreme conditions as they prepared for and then took the exam. But the fact that the remote exam was not a total disaster does not mean that it couldn’t have worked better, or that no examinees were unfairly disadvantaged or prevented from testing. If we have to have another round of remote testing in February, let us continue to press for ongoing improvement in its administration.
Thursday, October 1, 2020
Just off the press, and not a minute too late, is an ABA article by author Sara Berman with advice for the most recent law school graduates, whether having already taken a bar exam or preparing to take the bar exam this month. https://abaforlawstudents.com/2020/09/01/preparing-for-the-bar-exam-and-practice-during-a-pandemic/.
Here's a few tidbits from the article:
(1) As lawyers (or soon-to-be lawyers), you are an essential worker because democracy and the pursuit of justice depends on the sacrifices, the integrity, and your legal skills.
(2) You've got a inspirational story to share with employers, having successfully navigated the transition to socially-distant learning, with both the completion of your law school studies and preparation for your bar exam. What you've gone through will make you a better attorney in the long-run, so liberally share the lessons you've learned with prospective employers and attorneys and judges.
(3) Stay flexible as you march forward in your pursuit of your legal career, remembering in your heart of hearts that all of your hard work has been more than a worthwhile pursuit because you will soon be joining the bar as a critical "guardian of democracy." Id.
Let me say that we - in the ASP community - are all so proud of you, admiring your flexibility and adaptability, your commitment to the pursuit of justice, and the inner strength and resolve that you have demonstrated in these unprecedented times. Personally, we have much to learn from you. So, please don't ever shy away from letting your voice be heard and your heart inspire us to be the community of practitioners that our world so desperately needs and deserves. (Scott Johns).
Sunday, September 6, 2020
The NCBE released the national MBE mean score for the jurisdictions that administered a bar exam in July. The mean was 146.1, which is a 5 point increase over last year's 141.1. I was surprised at that large of an increase based on previous announcements by the NCBE.
Erica Moeser, previous president of the NCBE, stated in 2014 that the bar examinees were “less able” and that is why nationwide MBE mean scores plummeted. She attributed the results to schools going deeper into the applicant pool because applications were down. She referred to entering credentials as one of the indicators. If she is correct, then this result doesn't make much sense. There was a decrease in 2017 law school applicants, which presumably make up the majority of the 2020 July takers, with a LSAT score of 160 and above. From 2014-2017, the number of high LSATs (160 and above) seem to decrease every year except for 2016. The continued decline should have seen a coinciding decline in MBE scores from 2017-2020. However, the July mean MBE score increased every year from 2018-2020. The previous LSAT explanation doesn't seem to coincide with the results.
The result goes beyond not following their explanation. 146.1 is the highest July mean MBE score that I can find since before 2005. The LSAT profiles do not follow that same pattern. The 2017 entering class is not the most credential entering class in the 2000s. I know my students worked hard this summer, and Mike Sim's recent quotes indicate students across the country worked hard. The good news is this is evidence students can work hard to overcome lower entering credentials. However, the NCBE should at least attempt to answer how their previous explanation is incompatible with the drastic (potentially historic) increase this year.
To the students who endured bar prep and the exam, great job. Your effort and resilience is remarkable. Effort and resilience is a great foundation to build a legal career on.
Tuesday, September 1, 2020
A sharp sense of time has always been a key attribute of successful modern law students and lawyers. Awareness of deadlines, efficient time management, careful accounting of time spent -- all of these contribute to law school performance, and are usually part of a practicing lawyer's quotidian world of minimum billable hours and filing periods.
How unsettling, then, that many of our incoming, current, and recent students find themselves adrift in the time stream. New 1L students in many jurisdictions, starting their legal educations under conditions that have limited orientation activities and warped customary fall semester schedules, are not falling as easily into the clockwork demands of law school as other students have every year before them. Second- and third-year students have already been through six months of time-shifted classes and unwinding employment and internship opportunities, and are beginning a new school year very different from what they had experienced before. And around the country, many recent graduates (such as mine) have grown simultaneously complacent and anxious as their planned bar examinations have been postponed multiple times. Many students and graduates appear to take this all in stride, but it seems a significant number are manifestly affected -- falling behind on long-term projects, working with a diminishing sense of urgency or an inflated sense of panic, or having difficulty juggling responsibilities.
It feels as if the unexpected loss of schedules and signposts that so many took for granted has left some people unmoored, warping their senses of time in the same way that isolation and darkness affects cave explorers. In 1993, for example, sociologist Maurizio Montalbini spent a full year alone in an underground cavern, but because the solitude and lack of natural light had stretched his sense of time, he believed that only a little more than 200 days had passed.
Human beings need cues to help keep our sense of time on track. In a new situation, or one that has changed drastically, we may not perceive sufficient cues to keep us oriented, and we may not even be aware that we are slipping. We can help our students and recent graduates maintain their crucial awareness of the time they have -- and of the time they need to achieve their goals -- by providing supplemental cues. Introducing students to their professors' expectations over the course of the (in some cases altered) new semester, and touching base with reminders of upcoming opportunities and deadlines, may help anchor them when classes are asynchronous and gatherings are infrequent. Weekly emails, frequent online group meetings, and providing and reviewing supplementary materials can help bar examinees feel less disconnected and more engaged in this interminable bar study period. And frequent communication with our colleagues in other departments and schools -- learning their plans for the semester, sharing ideas and insights, and organizing joint efforts -- can help us retain our own sharp senses of time -- especially important if we are going to serve as the touchstones to others.
Thursday, August 20, 2020
It's been many months that some of our Spring 2020 graduates have been waiting to take postponed bar exams. Florida, for example, just recently postponed its postponed exam, from July to August and now to October. If that sounds exhaustingly frustrating, it is... So here's a suggestion for the many September/October bar takers that might just help rekindle a bit of the flames of learning:
Get your heads out of the books and instead take time each day to work through some of the latest current events because much that is in the news also relates to bar tested problem-solving.
For example, take today's federal court indictment following the early morning arrest of former White House adviser Steve Bannon on conspiracy charges: https://www.reuters.com/article/us-usa-trump-bannon-idUSKBN25G1J4. Try locating the indictment and the arrest warrant. Once found, here's a few things to ponder: (1) What authority if any does Congress have to adopt the criminal statutes that are the basis of today's indictment? (2) Did the federal government have probable cause to arrest Steve Bannon, and, if so, why? and, (3) What are the elements that the government must prove for the conspiracy charges?
Here's another possible bar-issue in the news: Many businesses and restaurants are delinquent on rent contracts due to the COVID-19 pandemic. And, some business owners are seeking rent abatement. Others are seeking reimbursement from their insurance contracts. https://www.forbes.com/sites/paulrosen/2020/03/26/what-happens-with-contracts-amid-the-covid-19-pandemic/#774454d342af These sorts of things raise a number of bar issues, such as, (1) What contract law applies to these contracts? (2) Do the defendants have any contract defenses, such as impossibility? and, (3) How should courts interpret force majeure clauses?
Finally, here's another news item to tickle a bit of bar exam intrigue. This case involves whether a lawyer has a defamation claim against an online reviewer when the review stated that the lawyer "needed to go back to law school." https://www.abajournal.com/news/article/need-to-go-back-to-law-school-comment-isnt-libelous-appeals-court-rules After reading the article, here's some thoughts to ask: (1) What are the elements of defamation? (2) If you were an appellate court judge, would you reverse the lower court's decision on whether the statement was actionable and why or why not? and, (3) Does the lawyer have any First Amendment issues as a member of the bar (a public officer of the bar?) and why or why not?
Of course, there are lots more issues in the news, from the COVID-19 pandemic to election interference to protester arrests to lawsuits against the President seeking TRO's and PI's, etc. Search them out. Find the civil or criminal complaints. Figure out whether the courts have personal jurisdiction and subject matter jurisdiction. Focus on the substantive elements. If it's a civil case, figure out if you could intervene as a party in the case. Work through how you would rule or litigate these matters. In short, this is not time to turn your backs on the news. Our world needs your voices now more than ever. So, over the course of the next month or two in preparation for postponed bar exams, feel free to take breaks from the books and take time to talk through and work out what's happening in the legal news of today. And in the process, you'll be learning more about the law. (Scott Johns).
P.S. Not sure how to get started, here's a helpful link with summaries of current legal news-making events: https://www.abajournal.com/news/
P.S.S. For entering first-year law students, taking a gander through the daily news in academic support groups can help bring life to the law, whether they are studying contracts, or torts, or constitutional law, for example.
Thursday, July 30, 2020
This week, a number of states were holding in-person bar exams, complete with formidable safety protocols as defenses. Nevertheless, a group of Colorado bar takers were notified shortly after completion of their in-person bar exams that they were in close proximity with a person who tested positive for COVID-19. Here are the initial details: https://www.cpr.org/2020/07/30/law-student-tests-positive-for-coronavirus-after-taking-colorado-bar-exam/. Previously, recent graduates from the state's two law schools along with many other people sent a petition to the Colorado Supreme Court seeking an alternative licensure pathway, namely, diploma privilege, arguing that conditions were unsafe for individuals to take in-person bar exams. https://www.denverpost.com/2020/07/07/colorado-bar-exam-july-coronavirus-covid-cu-du/.
Thursday, July 2, 2020
That's how Texas bar taker Claire Calhoun put it when describing what she and thousands like her face with the prospect of in-person bar exams in light of increasing incidences of COVID-19:
“We really, really hope and frankly need the bar examiners and the Texas Supreme Court to do something here to step in on our behalf, because it’s life versus licensure, and I don't think that's fair to make us pick." https://www.texastribune.org/2020/07/01/texas-bar-exam/.
It seems like Claire has been heard, at least in part. On July 2, 2020, the Texas Board of Law Examiners, in part due to calls from students such as Claire, has decided to recommend to the Texas Supreme Court that in-person bar exams be cancelled and replaced with an October 2020 remote online bar exam instead. Id. As of this writing, let's hope that the Texas Supreme Court has heeded Claire's warning too. Frankly, it's a choice that no law graduate ought be forced to make.
Now I know that some might say that that's a bit too dramatic. That Claire overstates the risk of harm. But as any bar taker can tell you, it's a real palpable foreseeable risk of harm, something that tort law might and ought to recognize. And, I don't think that Claire's concerns are that far fetched, because some states, seeming to recognize the tort risks at hand, are requiring bar takers to waive liability claims against bar examiners as a condition to sit for bar exams.
In my opinion, that's too much to ask of our future colleagues. Let me speak plainly. It's wrong, downright wrong, especially because the risk of harm is not just a risk that the bar takers and proctors are being asked to assume but it's a risk that bar takers will then be spreading to others who didn't assume that risk at all. That's just not fair or right.
But I'm not convinced that postponement to October 2020 for a remote online exam is right either. Here's why. At this point, with just over three weeks to the scheduled bar exam in July, most bar takers have been studying full-time since graduation in May. They've been planning and preparing for July bar exams. And, as cited in the Texas Tribune article, the financial impact of a 3-month postponement is not something to be taken lightly: “I specifically budgeted my whole summer to take this July bar,” [bar taker] Anastasia Bolshakov said. “None of us are working right now. We have no income. The money we had in May, that's been slowly depleting.” Id.
Listen again to the words of these two bar takers. Don't just read them. Listen to them. Take them to heart, or at least hear them out:
"Budgeted my whole summer."
"Life versus licensure."
Perhaps the risk of COVID-19 will not materialize such that the July and September 2020 bar exams can safely take place in person without putting bar takers, examiners, or the public at risk. If so, by all means have the bar exam.
But if not, let's not fail our most recent graduates by not being ready to immediately provide an alternative licensure path, without any delay at all. For some states, that might mean being ready to immediately transition to an online bar exam with materials and procedures ready to go, for the July 2020 bar exam. For other states, that might mean be ready to roll out a diploma licensure option for July 2020 bar takers.
As every pilot knows, no flight plan is complete if it doesn't plan for the possibility of a diversion to an alternate destination in case the weather turns sour or the destination airport closes.
But it seems like many states have no alternative bar exam plans at all. And, in my mind, postponement is not really a viable alternative plan because it's asking too much of those who have so little to give, especially when they've spent so much, over the course of the past three years, emotionally, mentally, and financially, to prepare for embarking on the profession of serving as attorneys. To not have a viable alternative plan for our most recent graduates, at this point of time in the summer, is to leave our bar takers suspended in the air, without any place to land.
Perhaps I am speaking out of turn. Perhaps states have alternative licensure mechanisms ready to go so that the July 2020 bar takers need not fear any delays whatsoever. If so, let them be known. Share them with your future colleagues.
But if not, reach out to them. Work with them, their law schools, and state bar associations and practitioners to develop and plan viable alternative licensure pathways that are ready to go if need be. After all, at this point, no one has been able to accurately predict that path of COVID-19, not even the scientific experts.
That suggests that the best laid plans must include ready-to-go alternatives, too. That's the only way to fly safely. And that's the only way to practice law wisely. So also, it's the only way to do justice to not only the public but also our most recent law school graduates. (Scott Johns).
P.S. Let me suggest two possible licensure alternatives.
• First, a remote online exam with law schools footing the bill to provide - as needed - stable internet and testing locations for individuals without such capabilities. I would envision a 3-hour open book written exam, composed of four (4) 30-minute essays and (one) 1 mini-performance test, drafted by local practitioners and courts and their law clerks. Such an exam could be easily prepared and logistically administered by state supreme courts with just under three weeks to go to the July bar exam.
• Second, a diploma licensure "plus" program. In the event that in-person exams must be postponed without an alternative remote exam, partner with jurists, practitioners, and faculty to host two-day online workshops, guided by these experts, in which bar applicants and attorneys join together to work through a number of legal problems. In shaping the online program, I would encourage state supreme courts to frame workshop problems around current events that raise issues from the bar tested-subjects, with the workshops implemented in lieu of the July bar exam, such that completion of the exam would result in the admittance to the bar.
Wednesday, July 1, 2020
So, most of you had a scheduled practice test this last week, or will have one soon. It’s likely you’re feeling many things, so let’s talk about what the score means, and what you can do.
First, the score tells you where you are NOW, not whether you will pass or fail. Before I tell you what you can do AFTER the exam, I want to tell you a story.
Once upon a time, there was a bar taker. Right around July 1st she took a practice exam from BarBri. This was so long ago that you had to do everything by hand, including the grading. As she graded, it slowly occurred to her that her score was not great. Really not great. She got 90. Not 90%, but 90 questions right out of 200. Yikes. And she thought she was good at multiple choice. This came as quite a blow to her ego, and she was very distraught. There might have been some wallowing, crying, and ice cream.
So, after some wallowing, she did what I’m going to tell you to do, and ended up getting a 148 raw on the actual MBE. I only point this out because that’s an increase in 58 points. And trust me, if she can do it, you can too.
So, first and foremost, remember that the practice test is PRACTICE. It’s designed to help you learn. You have 4 weeks, and in some cases more, before the bar exam. That means you are still learning!
Next, if you didn’t do well, allow yourself some time to wallow. Grab the ice cream, go for a run, clear your head. Do what you need to do. Then come back, and let’s assess and learn.
First, get out an excel spreadsheet or make a chart in a word doc. You’re going to track what you did wrong, and what you did right.
Obviously, track which topics were better and worse. Did you get more wrong in contracts than torts? But, go a step further, and track the subtopics. So many people will come up to me, frustrated that they aren’t doing well in a particular subject. But what PARTS of that subject are you struggling with? For contracts are you getting all of the damages questions wrong, but doing fine with formation? This matters for two reasons. First, it matters because it helps you decide where to spend your time. Don’t just think about spending your time with “contracts”, but focus it further. In addition, if you notice you are struggling with damages, don’t assume that you don’t know the law. Line up some wrong questions and see if you notice a pattern. Is it the way the question is being asked? Or are you struggling to pick the right answer out of 2?
That brings us to the next important step of tracking. WHY did you get the answer wrong? Don’t just assume it was the law. Could it be something else? Were you reading carefully? If not, mark that down as “RC” or reading comprehension. Did you miss the law being tested? Perhaps you feel confident that you know the rule against perpetuities, but you didn’t recognize that it was being tested in this question. Were you second guessing yourself? Did you have the right answer and change it? Did you miss an important fact?
The point is to look for patterns. Everyone assumes they don’t know the law, but you graduated from law school! No small feat! That means you know something, I promise. So, look for other patterns. For example, most of the time when I get multiple choice questions wrong it’s careful reading. I read quickly and miss important facts, or don’t pay close enough attention to the call of the question. But now that I know this about myself, I can watch for it and remedy it. I also tell students who find they second guess themselves frequently to do the math – what would your score have been if you had NEVER second guessed yourself? If your score would have increased, use that as motivation to NOT second guess yourself. The point is, knowing the patterns help, and will help you study more effectively.
Also, if the law is the reason you got it wrong, be specific. Is it that you didn’t remember the law? Or that you didn’t understand it? Your answer to this changes your review. If you just failed to remember an element or an exception, working on memory will help. But students often assume this is the fix to all things, when in fact, they don’t fully understand the law. If that’s the case, merely memorizing the law will not help you get the question right. To test this, use your outline. With the law in front of you, can you get it right? If the answer is no, it’s not memory, and you need to look elsewhere.
As you track, think of a takeaway per question. So, if I got 90 right on my practice test, that’s 110 opportunities to learn something new. Yes, I know, cheesey. But it works, I promise. Remember 58 points! So, if I can learn 110 new things, that’s an increase in your points for sure. Statistically, about 20-30 points. Your takeaway should be something that you can use on multiple questions. It can be a reminder that when a question asks you for the BEST defense, it doesn’t mean defendant will win. It can be putting a nuance or an exception on a flashcard. It can be the reason why one answer is better than another. For example, if a contracts question asks about breach of contract, an answer choice that talks about reliance or estoppel will be wrong, because that’s not a contract.
The point is to learn something from each question. I promise, it WILL work. Don’t just go back to your outlines and redo them, or make them prettier. Don’t just review law or re-watch videos. Dive into those questions and really learn.
A few last multiple choice notes. It’s important to practice using pencil and scantron (actually bubbling in answers) before the test, potentially multiple times. It’s also important to practice in timed conditions. Make the test conditions as test like as possible – limit bathroom breaks, don’t drink water, or eat. Set a timer. If you plan on using ear plugs, wear them.
If you are struggling with multiple choice in general, our very own Steven Foster has a CALI lesson for that! https://www.cali.org/lesson/18100
Finally, good luck, and remember practice makes perfect!
Friday, June 26, 2020
Let’s talk about what’s been going on with the bar, and what our students have been dealing with. I would like to stress that these recent graduates will be the newest members of our profession. We owe it to them to care about their mental and physical well being.
First, back in March and April, there was uncertainty about the bar in general. Would it happen? Would it be postponed? While the class of 2020 was already dealing with moving classes online, dealing with non graduation, losing jobs they had already secured, now there is the uncertainty of the bar exam.
Sure, we were all dealing with uncertainty at that point, and still are. But I feel like this is different. This is going from looking forward to celebrating something you’ve worked so hard for, and potentially having your future figured out, to complete uncertainty.
In late April, and early May, states started announcing their decisions. Some were going to go ahead with July, some were postponing until the Fall. For those states that postponed, this meant students were now burdened with the stress of potentially changing housing plans, or figuring out how to finance their life (you know, a roof over their head and food to eat) for two extra months.
Added to that, some states like Rhode Island, didn’t even announce a decision until June! Leaving students wondering if there would be a bar exam to sit for, and if not where might they take the bar?
In the midst of all of this some states were restricting seats, leaving students to wonder if they would even get to take the bar exam. And oh right, the fees paid were non refundable. Because hundreds of dollars is nothing to a student, right?
Now, added to all of this is the fact that it’s almost July, Covid-19 is still spreading, and in most states the cases are rising. But some states plan to go ahead with the July exam. With hundreds of people in a testing site. And no guarantee that they can provide for safe accommodations. In fact, multiple states have said that masks will not be allowed while testing, and some states are requiring test takers to sign waivers.
Yes, we all had to take the bar, yes, it’s hard for everyone. But we didn’t have to deal with this. We didn't have to wonder if we'd contract a potentially deadly virus. (On a side note, yes, the young people can die from Covid, and not everyone taking the bar exam is young. On top of that, let's not forget that many of our bar takers might be at high risk, despite age)
Students don’t know if they’ll have seats. Students don’t know if they’ll be safe. Students don’t know if they are risking their health and lives in order to be licensed. This is too much to put on the newest members or our profession.
Also, at least 3 states have announced that test takers must quarantine prior to taking the bar. While I appreciate this from a health and safety stand point, most bar takers can not afford to take stay in a hotel for 14 days. And, if they choose to not take the bar, they’re not getting a refund.
However, I think someone preparing for the bar, sums it up a bit better than I can. (I have linked instead of sharing every tweet)
This is a really great and informative thread, that gives us insight into what students are going through. I haven't put every tweet here, because it's long. But please go to the link to read all of it.
Students are worried about their health. They are worried about their livelihood.
There are so many attorneys out there with a “life was rough for me, so it should be for you too” attitude. They have literally told these students to suck it up and deal with it. But none of us, I promise, have had to deal with this. This is much more than the usual stress that bar students are under, and we need to recognize that.
I’m at a loss, personally. I can’t imagine the stress that this class is under. There is nothing I can do individually but advocate for this class and support them. And I think, at the very least, we should all be supportive and empathetic, and understand that what we are asking of these bar takers is simply too much.
Thursday, June 18, 2020
With some states moving to online bar exams, four (4) academic support educators have teamed up with the ABA Journal to share top-notch tips for expertly preparing for success on online bar exams. Here's the link to read the expert suggestions from Prof. Goldie Pritchard (Michigan State), ABA author Sara Berman (AccessLex Institute), Prof. Courtney Lee (University of the Pacific - McGeorge), and Prof. Joe Regalia (UNLV): https://www.abajournal.com/academic-support-experts-offer-advice/.
Monday, June 15, 2020
One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.
I’ve learned that:
Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.
Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.
Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.
Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.
June 15, 2020 in About This Blog, Academic Support Spotlight, Advice, Bar Exam Issues, Bar Exams, Current Affairs, Diversity Issues, Encouragement & Inspiration, News, Publishing, Weblogs, Writing | Permalink | Comments (0)
Sunday, June 14, 2020
The Black Lives Matter movement has swept the country and the legal profession. While our country confronts dual public health crises of racism and pandemic, our law school graduates are faced with an unknown future with the legal profession and the bar exam. As academic support professionals, we have a role to play in helping graduates pass the bar and participate in transforming the law so that Black lives matter.
Many graduates are too distraught to face the bar exam, and we know they need hours of focused study and rule memorization to pass. We also know that very few of the rules they will be memorizing are designed to dismantle racism. In fact, many of the rules tested on the bar exam entered through the common law at a time when Black people had “no rights which the white man was bound to respect”. Dred Scott v Sanford, 60 US 393, 407 (1857).
To pass the bar exam, law school graduates need to understand that the law does not have a race-neutral history. When Black graduates, and graduates from low-income and non-white communities, try to answer bar exam questions based on their own values and experience, they often get the answers wrong. When they are taught to see the questions, not from their own point of view, but from the point of view of those who wrote the rules, they often do better.
We should help our students memorize rules for the bar exam, but we also need to help them understand the origins of these rules in enabling institutional racism. Many of the bar exam questions are focused on issues related to large corporations, exchanges between merchants, and the interests of wealthy clients. With a legal history of racially restrictive covenants and segregation, Black people currently have less than ten percent of the wealth of whites. Few questions on the bar exam relate to police brutality, racial profiling, civil rights, low-income tenants, poverty law, employment law, consumer protection, or racial discrimination.
To make Black lives matter in the legal profession, we need to actively work to change the law school experience and the bar exam. Changing the content and the character of the bar exam is one step on this path. We must help our courts and bar examiners to become more responsive to the legal needs of Black communities.
When confronted with disparate pass rates for Black law school graduates, bar examiners often respond that the exam is race-neutral. In employment discrimination law under the Civil Rights Act, if a policy has a disparate impact, it must be justified as a business necessity. However, this standard has not been applied to the bar exam. The National Conference of Bar Examiners’ own studies indicate great disparities between what the bar exam tests and the skills lawyers need. These disparities often disadvantage Black law graduates and serve as a barrier to access to the legal profession. Rather than justifying these inequalities, we should find ways to eliminate them.
At this time, we must help our law graduates pass the bar exam as it is now. In order to pass this year’s bar exam, they should understand that the rules of law do not have a race-neutral history. In the future, we must also work together to create a path to the legal profession where Black lives matter.
(Guest Blogger - Beth Kaimowitz)
Wednesday, June 3, 2020
Dear Bar Takers,
I’d like to talk to you about breaks. I see you. You are overwhelmed, you are stressed. Some of you don’t even know if you have a seat. Let me stress – I see you.
In addition, I’d like to acknowledge that there are a million things making it hard to focus right now. I’ve been struggling to focus, and I’m not studying for an exam. The non bar exam world is causing a great deal of anxiety, anger, sadness, and fear. For some, more than others. It’s understandable to have those emotions, and not feel like you can 100% focus on the exam in front of you, especially if you aren’t even certain when you’ll take it. That’s all valid.
So, I want to talk about breaks, and why they are important. Taking frequent breaks helps improve your memory and focus, and helps reduce stress. Basically, research tells us that your brain can only focus for so long. It doesn’t matter how studious or determined you are, the human brain will not stay focused for 8 hours straight. In fact, if you aren’t taking practice exams to work on your stamina, I suggest taking a short break every hour or so. This is not my advice, this is advice from the neuroscientists.
Specifically, if we don’t take breaks, our brain gets fatigued. Once an hour, if not more, stand up and stretch. Or go for a brief walk. Switch your focus. All of these things help you improve memory and focus.
Also, taking breaks for mental health is ok. In fact, it’s encouraged. If you are getting frustrated with a topic of a question, take a break. Walk away and grab lunch. Take a walk outside. Just take a break from the frustration. If you push through, and continue to attempt to study while frustrated, your brain is not processing the information. It’s also ok to plan for entire mental health days. Your brain might need a longer break, and that’s ok too. If you are struggling to focus, maybe current events or family worries are weighing on your mind, step away. Do something for yourself and come back to studying later.
Finally, taking breaks for your physical health is ok and encouraged as well. I can’t tell you how many times I’ve had students get sick, maybe a bad cold for example, and they refuse to take a break. Not only are they not letting their body heal, which is not ideal for the long run, but your brain isn’t as focused as it could be, nor is it properly processing information. It’s far better to take a few days off, fully heal from the cold or other illness, and then dive back in feeling better.
So, in summary, while it is important to get in enough study hours – which are, let’s be honest, many – you owe it to yourself to take care of yourself. This includes breaks, and taking time for yourself. It’s also ok to be human, and give yourself permission to have unfocused days.
In addition, reminding yourself of your motivation is going to help improve your memory and learning. Write a litter to yourself, or a post it to put on your laptop. Why did you go to law school? Why do you want to take the bar exam? Yes, I know, you want to take the bar exam so you’re licensed. But why do you want to be licensed. Keeping your goals and motivation in sight, literally, will help you focus and learn.
I’d also like to stress the importance of a different kind of break. We learn best by doing different things. So, don’t just focus on video lectures. Or do an entire day of MBE questions. (Unless you are taking a practice test.) Mix it up. Spend 30 minutes writing an essay, and then review it. But then, do 15 MBE questions. Then watch parts of a video. The more you jump from one item to another, the better your brain is working, and the less likely you are to suffer from fatigue and lack of focus. The same goes for the subjects. Many students think they should spend a day, or even a week, on only one subject. But you actually stretch your brain, so to speak, by doing a mix of subjects.
Finally, despite my profession as bar professor type person, I can assure you that the bar exam is not the most important thing in the world. It really isn’t. Yes, you need to pass it to be licensed. And I want you to be licensed! But it doesn’t define you as a person, and if you fail, or have to take time off, that won’t even define you as an attorney. So, what I’m saying is that if this is not the right time for you to take the bar exam, that’s ok. There is no shame in that. You need to do what works best for you, and if that means delaying the exam because you are afraid for your health, you are focused on other things, too anxious or unfocused right now, or any number of reasons, the exam will still be there in 2021.
No matter what you choose, good luck! I look forward to seeing you as a colleague soon.