Law School Academic Support Blog

More things change, the more they stay the same

The NCBE released results of the NextGen pilot testing last week.  You can read their report here.

Amazing ASPers throughout the country already started the discussion within our Listserv and on conference calls.  I don't want to reiterate (and/or plagiarize) their wonderful insights.  If some of my arguments sound familiar to someone else's, I sincerely apologize.  I will also provide my shameless plug for joining the bar advocacy committee.  Our complaints are being heard by bar associations, so you are making a difference.

My initial thought turned into the title to this post.  NextGen was supposed to be revolutionary and assess what lawyers do on a daily basis.  The test purported to require less memorization and focus more on practical skills.  The vision was grand, but the result seems to be a lackluster assessment in a slightly different format.

First, and probably most important, the report does not provide transparent data for performance differences among groups of participants.  The report vaguely states that the test narrowed the performance gap with some of the new questions.  The report does not fully say how much narrowing or which groups saw improved scores (it gave a few small examples).  The report also doesn't indicate the baseline for determining "examinee competency".  If the NCBE still uses prior standardized tests (LSAT mainly) to create the baseline for what performance difference is acceptable, then even small narrowing makes the new test seem better.  Most of us argue LSAT/standardized test differences are not based on competency.  Without knowing their baseline of what gaps are expected, I don't trust their argument the new test doesn't continue patterns of discrimination.  Slightly less discrimination isn't persuasive.  I want to be completely wrong here, but the impact is too great to not demand more transparency. 

Second, they aren't following their goal.  Attorneys don't memorize mountains of rules, so proponents of NextGen said it would move away from memorization.  I will concede that a slight decrease happened (no Secured Transactions, yay!).  However, NextGen continually adds back more material to memorize.  Family Law is back on the exam.  The starred vs. non-starred debate rages where we all know students will need to deeply know/memorize material even though the outline says to have a general understanding.  General understanding is too vague to create a good plan, and any reasonable person would over-prepare for the bar exam.  Wills, Trusts, and Estates keeps inching closer to fully back on the exam.  The report says that providing the Federal Rules of Evidence didn't help students/they didn't use them.  Of course students who already studied or engaged in some form of studying (either in bar prep or a for-credit bar class) didn't use the rules.  They already committed them to memory, or possibly, the stakes weren't high enough for them to pull up the rules because missing the questions had no impact on individually passing the exam.  

My last statement is about technology.  I believe the report makes clear the NCBE cares more about efficiency than true assessment.  The report discussed technological efficiency and ability to administer on computer.  The report (and all pilot tests to my knowledge) ignore the cognitive requirements of a 100% online exam (with multiple page PTs).  Why didn't the NCBE give a large number of participants the test on paper and the rest on computer?  My guess, because the answer would be clear.  Hard copies are better for active reading, notes, etc.  Students would most likely perform better with paper exams.

I sincerely hope I am wrong about my assessment of NextGen.  I hope it is a completely different and fair assessment.  My fear is that we are getting a different format of a test that will continue to determine who can reach their dream of practicing law based on screen reading, memorization, fast toggling, standardized testing, and a slew of other irrelevant skills.

(Steven Foster)

Animal Farm (and the 11th Annual AASE Conference).

I am just now coming down from the high of attending the 11^th Annual AASE Conference last week, hosted --in the most gracious way-- by the University of Idaho College of Law in Boise. As one might expect, it was an incredibly collegial and informative academic conference. I know I have mentioned how academic support folks are by the far the kindest, most generous, and scholarly academicians. It is refreshing to be in room after room with colleagues who just get “it.”   “It” is how to get students to: attend workshops, participate in bar review, pay attention to how they learn, and create processes that are efficient and effective. But “it” also is: how to get doctrinal faculty to: attend workshops, keep an eye on students who are falling behind, keep an eye on students who may learn differently. “It” is finally the collective[1] search for information about the NextGen bar exam and whether your jurisdiction will adopt it (and if so, when).

One of the social events at the conference was a dinner and drinks at the Zoo. I mean, who doesn’t love a Zoo?[2] There were giraffes, zebras, lions, and a red panda who I think should have their own Instagram account. It was Tuesday, so there were tacos. It was a different and fun way to build community and enjoy a lovely evening in Boise.

However, I have to wonder if our monkeying[3] around trying to get a handle on a test that we do not know a lot about-including whether it will actually be a thing in many of our jurisdictions- is just caging up the academic support predator that would love to set its sights on this prey by getting to know it (and actually figuring out if knowing it is necessary).

We spent a lot of time talking about the NextGen bar exam together. There were wonderful sessions about how to get ready, or adapt, or prepare students for the NextGen bar exam. In fact, every presentation about bar readiness (and some that were not) discussed the NextGen bar exam. One example was a great presentation about how to use Professional Responsibility as a golden ticket for teaching skills for both the UBE and NextGen bar exams. Another talked about teaching IRAC from a NextGen perspective. We had amazing presentations about how to use AI to Draft Next Gen practice questions, how to prepare students for the new legal research components of the NextGen exam, creating rubrics and learning objectives based on NextGen foundational skills, and more.

But what if after all this careful planning and preparing for NextGen, we, like Columbus, do not find ourselves in the destination we had planned to reach? What if the unknowns we are so carefully trying to infer[4] have been calculated incorrectly? We may already have, or are about to welcome, students who could be taking this bar exam and we have been left with penumbras and emanations.  We have become like Academic Support Ninja Warriors[5] who are trying to get to the goal without knowing exactly what challenges lie ahead. Some of this is the NCBE not being entirely forthcoming about the exam, and another piece of it resides in jurisdictions who have not shown their hands either. Together, that leaves us no better off than the animals in the Zoo: we are at their mercy in terms of getting fed the information we need, and then we wonder if all our hard work to know more than we have been currently told is going to end up being merely entertaining -- but not freeing in any way.

A very special thank you to Karen Wellman and her amazing team at U. of Idaho and the AASE Executive and Programming teams for making this another memorable conference. We are lucky to have each other on this quest. AASE will be posting all the materials and slides from the conference-look in your emails and on the website for more information.

And finally, I am crazy excited that all these amazing people will come to me next year. We will see you in Boston for the 12^th Annual AASE Conference-Suffolk University Law School, May 2025!

(Liz Stillman)

 

[1] But not universal, some jurisdictions have committed with clear timelines in place.

[2] Yes, the animals there may not love it, but bear (get it?) with me for a moment.

[3] The puns will be fast and furious-please feel free to groan-or just shoot me an email that says, “UGH!,” I deserve it.

[4] And asking ChatGPT to help us infer as well.

[5] Which will be the name of my second ASP themed band.

Ambivalence

My grading is almost 100% done (the only thing left is one rescheduled exam that will get to me in about a week). I am generally happy that it is over. It was a large undertaking with two undergraduate classes and two law classes this semester-over 100 students to grade in total. But, while I am glad I did the work, I am also ambivalent about it.

Why am I not sipping a drink with an umbrella and congratulating myself on meeting the grading deadlines? This semester I failed two students-one in each of my undergraduate sections. To clarify: they received Fs, and I failed them. These are two different things. I also gave some lower passing grades that included parts of the alphabet I don’t often use in these and my other classes. I think I now know what it means when someone says, “this is going to hurt me more than it hurts you.” This hurts. Let me be very clear, I am not angry at the students, nor do I think they weren’t interested in the class or didn’t care-I think they just couldn’t do it. I am not taking it personally-it isn’t about me. Yet, I have to wonder how I missed such large cracks forming before the students fell through.

One of these students had perfect attendance and regularly participated in class, they just didn’t submit any work during the semester[1]-absolutely none, except they showed up (after rescheduling) for their oral argument (which was only worth 15% of a grade). Out of a total of 100 possible points, they had 40. I asked them in person (privately) after the oral argument, when I should expect their work and they nodded and said, “soon.” The other student got a perfect score on the first quiz, did an amazing oral argument, and then turned nothing else in and barely showed up for the rest of the semester. This student had 41 points. I was generous in awarding points for both. I am only allowed to give a grade of incomplete if they had turned in over 2/3 of the work. I begged them to turn in a few more assignments so I could give them an  “I”: no answer.

I emailed these students (often), contacted their Dean of Students, and also their faculty advisors. Academic Support me tried all the tricks to get their attention-and received no answers anywhere I turned. I also looked on our student tracking and found that they both had done poorly in their other classes as well.[2] Was this a relief? No. Did it take a little sting out of the process? Yes[3].

And then there were the law students. They also had some issues turning in assignments. I had one student who copied an MPT point sheet basically verbatim and turned it in as their own work[4]. When confronted, they only asked if they could take the class next intersession instead[5]. I suppose on an interrogatory that would be a “neither admit nor deny” type of answer. I emailed another student asking if they wanted an Incomplete since they had not turned in any assignments (but had done the quizzes and shown up -more or less-frequently) and the response was to submit most of the assignment a few days past my deadline without answering that email or communicating that they planned to do that in any way.

They will both pass the class. Will it be a grade that lifts their GPAs? I doubt it, but it is a one credit class, so it really wouldn’t have had a profound effect either way. Perhaps this was their calculation as well. Again, I tried not to be hurt or angry.[6]

I am pretty certain that all of these students are overwhelmed. I am not sure why this semester was the most overwhelming of all the semesters since the pandemic. Perhaps our collective trauma and grief has come home to roost- a bit of academic long COVID. I know that our collective mental health has been fraught-and world events and responses to them have been a lot. Please do not think that I am fishing for “you did everything you could for them.”  I am not looking for that, I am just wondering where they were that I couldn’t see or hear them-and more importantly how did they get there? And also, are there more students hiding in that spot?

I’ll be checking those nooks and crannies more carefully during the bar prep months as well as next semester, and I am suggesting that we all do (because, goodness knows, we don't already have enough to do...).

(Liz Stillman)

 

[1] They added the class about a week in, so I thought they were catching up for a bit.

[2] One had actually failed every class this semester.

[3] But then I felt that this kind of validation is not helpful to students either. A group failure is still a failure, just not as lonely.

[4] When your explanation of a changed provision in an MPT includes the words, “an examinee might…,” you’re busted.

[5] No, they cannot because they already took the final exam.

[6] Although the cheating did tip me over into anger. I am flexible about most things, but dishonesty isn’t on that list.

If You Failed the February 2024 Bar Exam…

As results trickle in from the February administration of the bar exam, there are moments of joy and sorrow happening around the nation. If you passed the exam, CONGRATULATIONS! If you failed the exam, please know:

You are not a failure. You are a successful human being.

You know this. I’m just reminding you of the facts.

There are people you can lean on.

It can feel hard to share the disappointment, stress, and even shame you might be feeling. There are people in your life who can’t believe you did something as hard as graduating from law school. There are people in your life who look up to you – who think you are the smartest person they know. There are people in your life who are so proud of you, and they are even more proud of you now for trying. Let them in.

Your school is behind you.

With all the national attention on the bar exam and pass rates, it can feel like you are a statistic. You are not. I graduated from a big undergraduate institution and a large law school. As a student, it felt comfortable to blend into a crowd. I didn’t understand how my faculty members felt about their law school community. Now, as a faculty member, I can tell you, a student’s success is my joy, and their disappointment is my sorrow. I deeply care about my students passing the bar because I care about my students. And I have yet to meet a colleague who doesn’t share this sentiment. Ask for our help and support. We want to give it.

Your February results do not dictate how you will do in July.

It takes over 400 hours of studying, thousands of multiple-choice questions, hundreds of essays, and multiple, timed MPTs to pass the UBE. It also takes stress management. If there were things outside of your control that prevented you from hitting these targets, acknowledge that. Failing the bar exam doesn’t come down to a lack of intelligence or ability; it comes down to dedicating the right amount of time to the right activities for ten weeks.

The work you did studying this past winter is not a waste. It will only ease the burden as you prepare for July.

You will feel surprised at how much you remember when you crack open those books open again.

You are in good company.

Check out this list from JD Advising of impressive people who failed the bar exam.

Try again.

No one will ever ask how many times you took the bar exam, or what you scored. Even if you feel defeated, try again. Being an attorney will define your life. Taking the bar again will not.

(Ashley Cetnar)

MWCASP/SWCASP Workshop

Please join us in St. Louis, MO for the Joint One-Day Workshop of the Southwestern Consortium of Academic Support Professionals and the Midwestern Consortium of Academic Support Professionals, hosted by the Saint Louis University School of Law on Friday, March 8th, from 9:00 a.m. to 3 p.m. CST, with a welcome dinner the evening of Thursday, March 7th.

The theme of this year's Workshop is Practical and Innovative Techniques to Approach Teaching and Advising for the Next Gen Bar Exam and the Next Generation of Lawyers. We have an exciting program and selection of speakers for you (see attached) and are excited to spend the day sharing ideas with our colleagues from the Southwest and Midwest regions - and beyond!

The conference will be hosted in person at the Saint Louis University School of Law. However, while we are excited to return to an in-person workshop this year, we also will do our best to record the workshop for those unable to travel to St. Louis.

Thanks to our generous sponsors, AccessLex, BarBri, and Themis, there is no registration fee, but we ask that you please register using this link so that we can adequately prepare: https://forms.gle/YTGyHB8zm6WdkGL78

Due to unexpected flooding at our original hotel, we are unable to provide a room block for workshop participants. However, there are a number of hotels nearby, including the following options:

Tru by Hilton St. Louis Downtown (~$123 per night, .2 miles walk)

 

The Last Hotel 4-Star Boutique Hotel (~230 per night, .4 miles walk)

 

21c Museum Hotel St Louis (~$230 per night, .4 miles walk)

 

We hope we get to "meet you in St. Louis" in March!

 

2024 SWCASP/MWCASP One-Day Workshop Planning Committee

Toni Miceli, Saint Louis University School of Law

Petina Benigno, Saint Louis University School of Law

Steven Foster, Oklahoma City University School of Law

Megan Kreminski, University of Illinois Chicago School of Law

Advice from a Part-time Student

As a parent, I usually know what is best for my kids.  That isn't always what they think is best, and that is when conflict arises.  However, sometimes they find a way to get to the right conclusion without my guidance.  I just have to get out of the way, which is not my strongest quality. 

Many of our students are the same way.  With space and information, they can find a way to the right conclusion, even if it requires help from their peers.  I was incredibly proud of one of my part-time students a couple weeks ago.  A student asked me in class about potential job offers and what to do if they required working during the summer.  I give my standard answer about working the least amount possible and exhaustion, but students legitimately worry about a job as much as bar prep.  That is when one of my part-time students spoke up.  She said the hardest part for her during law school wasn't the actual number of hours each week.  Finding those hours is hard, but she could find hours in the day.  She emphasized the hardest part was the mental exhaustion from getting everything done.  She worked hard and did the vast majority of the work during her time, but she reiterated that the mental load was enormous.  The load was so large, that she found a way to not work during the summer after working full-time for four years of law school.  The impact she had on the entire class was obvious.  I just had to sit back and let the discussion happen.  That may have been the most productive fifteen minutes of the entire class period because I let the students lead.

I won't always let the students provide advice because sometimes it isn't ideal.  However, many students can find their way to the right answer with only slight direction and hearing from peers.  Teaming up with a good group of third-year students to pass along a message could make a big impact in bar prep programs.

(Steven Foster)

Your bar prep program is enough, you are enough.

For February bar takers, this is your periodic reminder that your bar prep program (or the study plan you designed for yourself, if you are not using a company) is enough, and, as long as you actively engage with your program or study plan, you are enough.

After many exam cycles of working with bar studiers, I have learned that during bar review, studiers commonly hit a point where they start to know just enough to feel like they will never learn it all. This is normal, and it happens to many people. When you hit that point, when you feel like it is too much for you to possibly learn, a common reaction is for the learner to think one of two things must be true. Either 1) the bar review course they purchased is flawed or 2) they themselves are flawed in such a way that they are unable to learn the material.

You may be hitting that point and feeling those things. Don't get fooled, because neither one is true. The best response to those feelings is to take a deep breath and remember a few things before getting back to your program:

1. Your bar review program is enough. If you bought one of the programs from one of the big names in bar preparation, it was designed by experts. These companies have subject matter experts and learning experts who understand the science of adult learning. They also have insight into bar exam drafting and grading. If you did not enroll in a program, you likely created a study plan and program for yourself, focusing on all the areas you know will be tested. Trust the process, trust your program, trust your plan. You bought the ticket, now take the ride. 

 

2. You are enough. You got through law school, during a challenging time in the world from every aspect. You can do this. Bar review is hard but I promise you, you can do hard things. You have already accomplished graduating from law school. Passing the bar is the next logical step. You can do it, and the path to success is to work your program or study plan. Don't give up, don't switch strategies. Just settle into your program every morning, and do what they tell you to do, when they tell you to do it. It is normal if you feel like you can't. Just because it's hard doesn't mean it's not working. This is a normal part of the learning process. Put another way (and said in the kindest and best-intentioned way): you are not special, you are normal just like the rest of us. You are struggling, just like the rest of us, and you can come out successful, if you keep doing what you're supposed to be doing.

 

3. A word about well-meaning lawyers: There are lots of well-meaning lawyers out there who will offer advice. Many think that because they have passed one bar exam (and in some cases a long time ago), they are qualified to tell others how to pass a bar exam. I promise you, no friend or acquaintance or alumni knows better how to pass a bar exam than your bar prep program. Passing one bar exam, or even a couple of bar exams, does not make an individual an expert on how to pass bar exams. Put your trust in the experts and in your own abilities.

 

Bottom line: you can do this because you are enough. The way to get it done is to trust your program, whether that is commercially prepared or one you thoughtfully designed for yourself; do what you have scheduled, when it is scheduled. Email your academic support office or your favorite professor if you need a pep talk or a reminder to get back on schedule. You can do this. Stay on course. Trust the process. Trust yourself.

 

(Lisa DeLaTorre)

Quick Emergence of AI

The last couple weeks have been enlightening, and caused me to feel older than I should feel.  I grew up as technology boomed, and I have multiple family members in the computer industry.  All that said, I did not pay enough attention to AI before the past couple weeks.  ChatGPT bombarded multiple academic listservs.  As I read the thread on the ASP listserv, our Associate Dean discussed the issue with our faculty from the thread on her listserv.  For me, it feels like the technology evolved almost overnight.  It went from unknown to a sensation that nearly passed the bar exam.  

I am frightened by the impact this could bring from conduct code issues to bot lawyering.  However, I think at least one positive might come from this endeavor for my students.  We will most likely stop giving any take home exams.  Yes, I know take home exams provide unique educational benefits that helps with lawyering, but I try to find every opportunity to help my students with timed, closed-book style exams (the bar).  I worry about the big picture impacts, but I find some solace in students preparing more for the bar.

Here are a few articles I saw this week:

Tip of the day: How to use ChatGPT to figure out if a text was written by ChatGPT

AI Generation (also a collection of articles)

ChatGPT takes the Bar Exam

 

(Steven Foster)

Misery is not a strategy for bar exam success

 

January 12, 2023

If you are sitting for the February bar exam, you likely know that February 21, 2023, is less than six weeks away. If you are following the traditional bar preparation schedule, you likely started review and studying around mid-December, and so you are in week four or so of your study.

Over and over again I hear from examinees right after the bar exam a sentiment something like, “whatever happens, I know I did everything I could to prepare for this exam.” I hope when the time comes you feel that way too! But what does that mean, to "do everything you can" for success on the bar? My observation is that it has several components:

1. completing your commercial bar prep program, faithfully (or if you don’t have a program, sticking with the study plan you designed for yourself);
2. being thoughtful and self-reflective about your areas of relative strength and weakness (e.g., if you did poorly on a graded practice essay, what did you miss?);
3. seeking out and using additional resources and active learning techniques for your areas of relative weakness (e.g., if you did poorly on a graded practice essay, did you read at least three selected answers released by the jurisdictions? Did you make flashcards of language from the released essay that stated a rule concisely and thoroughly? Did you then re-write the essay to solidify your understanding?);
4. taking care of yourself as a whole person, including at least: sleeping enough, eating and drinking healthy foods, working actively to keep a positive mindset, engaging with your loved ones to keep yourself emotionally fulfilled, and moving your body at least a little bit every day.

We are at the point in bar prep where people want to get wild for some reason, almost like there is some kind of award for whoever can make themselves the most miserable and run themselves most deeply into the ground. This is the time when many start to despair. It is in these moments of despair that we become most vulnerable to thinking there must be some easier way, some magic strategy for bar exam success, and we become susceptible to bad advice.

Some of us become our own saboteur, and follow a flawed reasoning that goes something like this:

1. To succeed on the bar, I need to put in many hours of study;
2. To have enough time to study, I will have to give up doing some things I enjoy;
3. Giving up things I enjoy will make me feel bad;

Therefore, the more miserable I make myself during bar study, the better my chance of passing the bar exam!

The three premises are all generally true, and consistent with the average bar study experience, but it is the “logical” conclusion of the first three that is very flawed.

This focus on misery as a strategy causes some to stare blankly at their outlines late into the evening, long after their brain shut down for the day. Some will cut out all pleasurable time spent with family and loved ones—staying home from every family Sunday dinner at your sister’s house, missing Grandma’s 75th birthday party, attending none of your child’s gymnastics classes—only to re-watch a video lecture while your mind wanders anyway. We stay up way too late, sleep later than we mean to the next morning, drink too much coffee to compensate and get the jitters, and then skip the routines that make us feel human like daily showers and routine workouts. “This is miserable!” the bar-studier thinks, and so feels virtuous and like they must be on track for that passing result.

Make today the day that you do a midpoint reset, and refocus before the second half of your bar prep. Commit to going to bed at a reasonable hour every night, starting tonight. Commit to waking up at the same time you will need to on bar exam day every day, starting tomorrow. Schedule breaks throughout your day to correspond with meals; eat peacefully without studying--bonus if you can share a meal with a friend or a loved one, even if it's a quick 20 minute sandwich break with your friend, your spouse, or your kid. Catch up on your bar review program if you are behind, and commit to staying on track and following through with all recommended assignments until the end.

Remember, when the exam is over, there is no award for The Most Sleep-Deprived JD Ever to Take a Bar Exam. There's not even an award for Did All Online MBE Questions Four Times, or Missed the Most Family Dinners Since November. Yes, you have to study A LOT. Yes, the bulk of your waking time should be spent studying. But remember to look after yourself as a whole person, because you can't run yourself so far down that you've got nothing left to give for the bar exam.

For the next six weeks you have to find strength in yourself that you might not know you have. To help you find it, allow me to remind you of everything in your life you had to achieve to find yourself in the privileged place you are today, about to take a licensing exam to become a lawyer. You had to get accepted into an undergrad school. You had to graduate with your undergraduate degree (and any graduate degrees you might have). You had to get accepted into law school. You had to attend law school during a pandemic and during some very challenging social and political times. You graduated from law school. By now you have likely completed 40+% of your bar review program. And, many of us had careers, families, and other big life events before we ever even got to law school. Each of these is a major success, and you likely have lots of other categories of success in your history that I haven't listed here.

Reflect on all these achievements and successes that led you to this point. You are a winner, an achiever, a successful person. And what do successful people do? They work hard to achieve their goals. So keep living the life of the successful person you already are. Keep working to achieve your goal of licensure. It's less than six more weeks. The follow-through is the most important part. Keep working to achieve your goal every single day, and don't stop until someone calls "pencils down" at the end of your bar exam.

(Lisa DeLaTorre)

 

 

The Final Countdown to the Bar Exam

You might be wondering, what do I do the week before the bar? First, a week is more than you think. I promise.

Second, remember that the goal is NOT to memorize everything. It’s not possible. So, if you don’t feel like you know every last piece of law ever that can possibly be tested on the exam, you are not alone. It’s a normal feeling!

So, what CAN you do?

Practice. Between now and Friday or Saturday, this is the last big push where you can practice. Make sure you’ve practice MBE sets in 100, and timed. Make sure you’ve written more than one essay at a time. Now might be the time two take 90 minutes and write 3 essays, or take 3 hours and write 2 MPTs! It’s one thing to write one essay in 30 minutes, it’s an entirely different thing to get through 6 at a time! It’s hard, it’s tiring, and it’s easy to lose focus. So, the only way to work on your stamina and timing is to practice. This upcoming weekend and week is the perfect time to get that in, and really make sure you are practicing in test like conditions, or as close as possible.

Start to work on memory and recall. Yes, there are things you just NEED to remember. This week take 5-10 minute chunks to work on memory. See this post for more on memory: https://lawprofessors.typepad.com/academic_support/2021/02/memorization-v-understanding.html

Finally the days leading up to the exam, the weekend before, take some time to relax. It sounds counterintuitive, but it’s important.

Here is a little timeline to help:

Four Days Before the Bar Exam

This should be your last day of “heavy lifting” activities. Complete a set of 50 timed MBE questions. Complete a set of three MEE questions, timed. Complete a full-length timed MPT. Do not pick and choose between these – do all of them. This is the last day you will do practice that improves your stamina and timing. Remember, you should be doing these things all week, but four days before the exam is your cut off point.

Three Days Before the Bar Exam

In terms of bar exam preparation, today you should complete 15 to 20 MBE questions, complete one timed MEE question, outline three to five additional MEE questions, and complete one full-length timed MPT. You are tapering off. This isn’t an exact science – the point is that you are practicing, so you will feel prepared, but you aren’t tiring yourself out.

This is also the day to do something relaxing for yourself – watch a movie, go on a run. Do something that is going to make you feel less stressed. You should also be sure to go to bed early and eat well. Yes, that sounds like “mothering” but it’s good advice. On the days of the exam you will NEED to be well rested and refreshed.

Two Days Before the Bar Exam

Rinse and repeat yesterday. Today you should complete 15 to 20 MBE questions, complete one timed MEE question, outline three to five additional MEE questions, and complete one full-length timed MPT.

Take some more time to do something relaxing for yourself to help relieve some of that bar exam stress. And again - you should be sure to go to bed early and eat well.

Also, when I say do something relaxing for yourself, that can be almost anything that makes you happy. The point is to get out of your head a bit, and give yourself a break. I realize it might seem like the worst time to take a break, but it’s not. Your brain needs to feel “fresh” on exam days. Think of it like running a marathon – you don’t run 26.2 miles, or even 13 miles, the day before the marathon. You’d be exhausted. The days leading up to the actual marathon you might run 1-5 miles and stretch, and relax, and eat pasta. This is your mental marathon, so treat your brain accordingly.

One Day Before the Bar Exam

Today you should lighten the mental lift even more. Review your flashcards and other memory devices. Outline three to five MEE questions. Do five MBE questions to keep your brain in the practice of thinking through MBE questions without overly taxing it.

You also want to make sure you have everything ready for tomorrow. What types of ID do you need? What are you allowed to bring in with you to the exam? Make sure to have all those items pulled together and ready to go. Make sure your laptop is fully charged. And as silly as it sounds, map out how you will get to the exam location. Do you need to worry about parking? Are you taking a train? Do not leave anything to chance. Most of you, but not all, are currently looking at virtual exams. So do you have a good space to take the exam? Do you know how you will log in? What the timing is? Etc?

Finally, relax. You’ve put in so many hours, weeks, months of preparation – you’ve got this. Take some time to relax and unwind before bed. Eat a simple meal that will sit well with your potentially uneasy stomach. Lastly, head to bed a bit earlier than usual to account for nerves keeping you awake.

Day One of the Bar Exam

Today is the day. Make sure you are on time for check in and have everything with you. Today is filled with the MPT and MEE. At the lunch break and after the day of testing ends, do not talk with others about the contents of the exam. Invariably, one of you will think you saw a subject the other did not spot – and you won’t know who was right or wrong until you get your final bar results, so there is no benefit to discussing such matters now. Doing so will only freak you out and add to your anxiety.

After the testing day is complete, eat dinner and mentally decompress. If you must, review a few flashcards – perhaps the ones you still struggle with and want just one more run at. But this is not the time to do any serious review or learning because your brain is tired from today and needs to rest up for tomorrow. What is there is there. Have confidence that your hard work will pay off tomorrow!

Day Two of the Bar Exam

It is almost over! Today you will tackle the MBE and then – be done! After the testing day is over, just like yesterday – do not talk about the exam! Instead, relax, take a nap, celebrate!

(Melissa Hale)

Making Memories that Stick - At Least Thru the Bar Exam

You've heard the quip about "the chicken or the egg, which comes first?"  

Well, as the joke goes, "I've just ordered one of each from Amazon, so I let you know tomorrow!"  

That got me thinking about memorization.  

Most bar takers are really concerned about memorization, particularly because most of their law school exams, unlike bar exams, were open book/open note exams.  But take a look at the word "memorization."  That's a word of action, of a process, of recalling something previously learned.  In other words, at its root core the word "memorization" derives from creating "memories."  So how do you create memories when it comes to learning rules of law?  

Or, to ask it another way, which comes first, memorization or memories?  

Well, I think that the answer to that question is in the question because it's memories that we memorize.  So the key to memorizing is to work through lots of problems, to test yourself with your study tools, to practice retrieval practice, and, in short, to create lots of memories with the rules.  

You see, memorization is just a fancy word for the process of experiencing memories through distributed and mixed practice over time.  So, instead of worrying about memorization as you prepare for your bar exam this summer, focus on making memories (and lots of them).   (Scott Johns)

Dear Practicing Attorneys: Please Stop Giving Our Bar Students Inaccurate Advice.

I still fondly remember the judge for whom I interned as a 3L.  Knowing that bar prep was coming up and sensing my anxiety, he asked me about my plan.  I told him that the bar prep company each day would provide lectures, outlines to read, some more outlines to read, and then finish things off with some outlines to read.  When I told him that the program started just after Memorial Day and ended the day before the exam, he was astonished.  His advice was to save myself all that money, take three weeks off from work, and study from July 4^th until the exam.  He said that would be plenty.

Of all the advice my judge gave me, this was the one bit I did not take.  His guidance was well-intentioned, and I appreciated his attempts to calm me down.  But as the Type-A person that I am, I could not rest without feverishly checking off each scheduled study item.  His was advice I could not take.    

Twenty-something years later, students still receive that advice.  They insist:  “The partner at my firm said that she took just two weeks off for the exam and did just fine.”  The partner professed:  “You’re a smart kid.  You don’t need to do all that work.  Just watch the videos, read the outlines, and you’ll pass.”  Happy to internalize this message so as to mentally corroborate the partner’s flattering assessment, students’ confirmation biases drive them to adopt suboptimal learning behaviors. 

And then they fail the bar exam.

The practicing lawyers who give this advice sometimes believe that the bar exam world is a static place devoid of change.  However, recent substantial reforms severely limit the applicability of their experiences.  Below the fold, I describe those changes and how they require more careful advising. 

Continue reading

The Bar Prep Marathon

Congrats to everyone graduating across the country.  Obtaining a J.D. is an amazing accomplishment.  You should celebrate your victories, but for most of you, the J.D. is not your final hurdle.  You still have 10 more weeks of preparation and one more test.  Don't get distracted now.  Finish strong on this last obstacle.

I know many students looked at their bar prep schedule and saw a little time before full time studying begins.  My advice is to start bar prep early.  Every major course pre-recorded all the lectures, so you can start the full course right after graduation.  Don't wait until June.  You need to study approximately 400 billable hours.  Spreading it over 10 weeks increases the likelihood of completing the work.  You can also spend extra time on your weak areas later in bar prep if you are ahead.  

I hope everyone enjoyed graduation.  Congratulate yourself on your accomplishment.  Also know, you have the grit to pass the bar.  Most of you completed most of law school online or in a hybrid format.  You experienced social upheaval while navigating a pandemic.  You already overcame obstacles for the opportunity to take the bar exam.  Seize your opportunity and finish the summer strong.  Good luck!

(Steven Foster)

The Kids' Table

Remember Thanksgiving when you were a kid? The adults sat at one table with endless access to the stuffing and gravy while you sat with your cousins wondering why the potatoes never got to you. The kids’ table was a fixture, but when I was middle school age, I was certain I should be allowed to join the adults and enjoy the power of the serving spoon. Perhaps Academic Support has entered that part of our growth as well.

The 2023 Best Law Schools list was recently published by U.S. News & World Report.[1] In determining these rankings, U.S. News looks at numerous factors in determining how and where schools are listed. According to U.S. News, they, “evaluate institutions on their successful placement of graduates, faculty resources, academic achievements of entering students, and opinions by law schools, lawyers and judges on overall program quality.”[2] From time to time the importance and proportional value of the various criteria are tweaked. This year, for example, the value of Bar Passage was increased, with U.S. News noting that, “[a] key change for the 2023 edition involved U.S. News more comprehensively assessing the bar passage rates of first-time test takers. “[3] The actual overall value this year was 0.03 as opposed to previous years when it was 0.0225. This doesn’t seem like a big change in the scheme of math but consider that bar passage is valued more than the acceptance rate, student-faculty ratio, and debt at graduation.[4]

The U.S. News rankings also include programs within law schools in the areas of (among others): Business/Corporate Law, Clinical training, Constitutional Law, Contracts/Commercial law, Dispute Resolution, Legal Writing, and Trial Advocacy.[5]  Academic support is neither considered in the overall rankings nor ranked independently as a program.

Just to be clear, I don’t like rankings: I even volunteered to be on a subcommittee that is examining our internal student ranking system. Yet, I understand that without a very complicated mathematical algorithm based on a long list of both objective and subjective criteria, law schools cannot brag, fundraise, um, see how we are doing overall. I get it: law schools need a way to be assessed.

But here’s the rub: I am a parent of a child with learning issues who had an IEP all the way from kindergarten through to college.[6] They were “othered” by going to the learning center, they were sometimes bullied, and they came home feeling that they were intellectually inadequate often especially in the middle school years. I spent a lot of time explaining to her how school only measured certain types of intelligence while overlooking many others. Howard Gardner’s work on multiple intelligences was something we could both cite over the years to remind ourselves that school assessment isn’t the sum of who we are.[7]

In the same way that schools tend to only assess a very limited number of student intelligences, I would argue that ignoring Academic Support Programs in ranking law schools similarly overlooks something important. Even worse, by assessing the consequential outcomes of good Academic Support programs--like employment rates and most obviously first-time bar passage rates--without looking at ASP itself means that ASP professionals are truly the unseen factotum[8] in law schools. We are taxed without being represented[9] because all the things ASP touches are considered or ranked, but ASP programs are not considered in any part of the formula.

There are, of course, some major downsides to having ASP ranked or considered in ranking without more job security (like tenure!). I wouldn’t want to outsource my yearly work evaluations to U.S. News especially if I had a contract that was up for renewal frequently (or worse yet, not have one at all). Nor would I want to be assessed based on criteria that I cannot control, like admissions decisions. Like all coins, this one has two sides.

And yet, wouldn’t it be nice to sit at the adult table sometimes?

(Liz Stillman)

 

[1] https://www.usnews.com/best-graduate-schools/top-law-schools/law-rankings

[2] https://www.usnews.com/education/best-graduate-schools/articles/law-schools-methodology

[3] Id.

[4] Id.

[5] https://www.usnews.com/best-graduate-schools/top-law-schools/law-rankings

[6] Where she is a junior who is regularly on the Dean’s List (my bragging).

[7] https://sysdesc.info/Content/Person/Gardner1989.pdf

[8] This is a real word. And so much fun! https://www.dictionary.com/browse/factotum

[9] Since my law school is located in Boston, this is a required complaint.

Big Plays - Small Steps

It's just a week and a half before the February 2022 bar exam.  For some of our bar takers, probably most, they are not sure, despite weeks of laboring studies, that they are ready, at all.  That's completely understandable, even natural.  So I have thought experiment.

I recently heard a speaker say that no one on the football field knows whether the next play will be the big one - the proverbial game changer.  Rather, each player lines up and gives it the utmost best, no knowing whether the next play will be the big one.

You see, big plays start just like small plays, step by step, push by push, and motion by motion.

I think it's a bit like that with the bar exam.  

For those of you taking the Feb bar exam, don't give up, on yourself, on your learning, and on your purpose.

Regardless of how you feel, step up each day, with courage, conviction, and curiosity, making it your aim to "move the ball forward" a little bit more, with each opportunity you take to practice another essay or a batch of multiple-choice questions. Stick with it.  And, when you fumble something, don't consider that as a step backward but rather as an opportunity to learn something that you didn't understand a few moments prior to that problem.  Keep growing; keep learning; keep on at it.

In short, don't stop learning.  Far too many people, I fear, with a week to go before the bar exam, start to huddle in the locker room so to speak, taking exams to see if they have a passing score yet.  

But your scores today do not determine your destiny tomorrow, unless you let them. So don't take practice questions as opportunities to test yourself, to prove yourself, but rather to learn.  Otherwise, in essence, you are giving up a week before the bar exam.  You are still in the game, the game of learning. Learn big. Live big, as if every opportunity is an opportunity to grow and learn, because it is.  You never know which question on your bar exam is going to be the game changer but, by preparing through lots of practicing with the purpose of learning, you're well-prepared to take the little steps that will be the game changer for you. Best of luck on your bar exam!  (Scott Johns).

Dirty Laundry

I would imagine that almost all of us in the ASP world see students who are in academic difficulty: those who are on warning, probation, and even double secret probation now and then.[1] I know I work with students in classroom settings and one on one who have been told they must seek my help to stay in school. Some students are right on the (wrong) edge of the standards that would exclude them from these graduation conditions, and they are, usually, unhappy about the circumstances. And they are right-because some of the requirements and limitations may only serve to dig them deeper into the hole they barely fell into in the first place.

One example of this is a list of required classes that students must take depending on their GPA. The classes are carefully curated to correlate to bar passage. Yet, they also tend to be bigger upper-level classes (at least 40+ students), so chances are that there is a mandatory grading curve applied to these classes. Sometimes the grading curve (required by many schools especially in the 1L Year) may be the reason the student is in this predicament in the first place. And thus, students who might have easily dug themselves out of academic difficulty in their 2L year by being able to choose classes that are better suited to their interests and strengths, find themselves further entrenched. To make matters worse, these classes also tend to have one summative assessment to earn that curved grade. Sometimes the issues students face are far more exam related than comprehension related.

These same students are also often locked out of, or put at the bottom of the list for, clinics and other programs that give them experience (needed for graduation) and confidence (also needed for graduation). This is exactly the kind of class experience that students who struggle with exams need. This is where they could shine, if they could just reach the light switch.

A student who is currently occupying this space met with me last week and told me that she felt, particularly in light of the pandemic and the chaotic atmosphere of her first year, that she was being kicked while she was down. Even more disheartening, she felt that she was still being kicked while on her way back up. It reminded me of the song Dirty Laundry (Don Henley-and if you also remember this song, we are both officially pretty old).[2] The chorus of this song, “kick ‘em when they’re up, kick ‘em when they’re down, kick ‘em all around,” is what came to mind in that moment.  Considering the NextGen bar exam that incoming classes (next year’s incoming evening students at my school, for example) will be taking, perhaps we need to rethink how we handle students when they’re down. The new edition of the bar exam will emphasize competencies over memorization.[3] While we will still all encounter students who may not be up to the task, there are many students clinging to edge of the cliff who are absolutely capable of finding solid ground-given the chance. Let’s throw them a rope. I don’t want students to think that we, “love it when people lose.[4]”

(Liz Stillman)

 

[1] Ok--that is not a real thing, but I thought it was clever to slip in a reference to the movie Animal House and see if anyone noticed. Of course, explaining the reference in a footnote kind of defeats the humor….

[2] https://playback.fm/charts/top-100-songs/video/1982/Don-Henley-Dirty-Laundry

[3] https://abovethelaw.com/2022/01/new-bar-exam-will-test-future-law-grads-on-skills-actually-related-to-being-a-lawyer/

[4] https://playback.fm/charts/top-100-songs/video/1982/Don-Henley-Dirty-Laundry

Peer Pressure, Vaccine-or-Test Requirements, and Legal Analysis

In working with bar applicants preparing for the February 2022 bar exam, I keep hearing concerns about analogical reasoning, one of the legal analysis skills tested on the bar exam.  And, for first-year law students, many whom are taking persuasive legal writing courses this semester, analogical reasoning is a key persuasion method.

I noticed the power of analogical reasoning while reading an article describing the Supreme Court oral arguments last week in the vaccine requirement case. J. Bravin, et al, "Supreme Court Shows Skepticism over Biden Vaccine or Test Mandate," WSJ (Jan. 7., 2022).

As a bit of background, the Court was considering two issues, first, whether the federal executive branch had power through OSHA via Congressional authorization to mandate covid-19 vaccines in workplaces with more than 100 employees, and second, whether the federal executive branch through its Medicare and Medicaid Office had congressional authorization to mandate covid-19 vaccines for medical personnel working in medical settings and receiving funds from the federal government.

The U.S. Supreme Court split the issues (with a split court too).  In a 6-3 decision, the Court held that OSHA did not have the regulatory power to mandate vaccines in large workplaces while, in contrast, in a 5-4 decision, the Court held that the executive branch has such power in the medical field for those receiving federal government medicare and medicaid funding.

Already, we see a tension between the two holdings.  Those tensions require explanations and that's where you, as an attorney, are critical.  It's your explanation of similarities or differences that constitutes analogical reasoning. And, to the extent that your explanation of those differences or similarities is persuasive is what I call "analogical reasoning as a form of peer pressure." In short, analogical reasoning suggests that you have friends, powerful friends and powerful tradition that backs the position that you are now arguing on behalf of your client.

Take last Friday's oral argument over the "vaccine or test" requirement.  In the workplace requirement case, Justice Sotomayor asked of attorneys: "What’s the difference between this [vaccine or test requirement] and telling employers, where sparks are flying in the workplace, your workers have to wear a mask?"  Id.

In other words, the Justice is asking an analogical question, seeking an explanation as to why the vaccine requirements are any different than other normative OSHA workplace safety requirements, such as masks to protect industrial workers from flying sparks and fire hazards.  That's not an easy question to answer. It requires much of us - curiosity, courage, and showing connections.

The premise behind the question is that no one doubts that OSHA has congressional authority to regular workplace hazards with reasonable tools to prevent harm that, at the same time, allow workers to complete their work successfully.  Masks to prevent workers from suffering eye injuries due to flying sparks is just such a prototypical regulation that is, obviously, permissible.  That's the "peer pressure" component.  Once that is settled, the party who opposes the vaccine or test requirement now has the burden to show how covid-19 is different from other types of workplace hazards, such as flying sparks.  It's not impossible to do but it requires deep thinking.

As a tip, you might try an exercise, listing in one column the precedent situation (masks to prevent spark hazards) and the other column the disputed situation (vaccines to prevent virus hazards).  Then, under each column, brainstorm possible differences and similarities, as many as possible.  Once you've finished brainstorming, now look for connections that might explain how the two situations are similar (and why) and for differences that might explain how the two situations are dissimilar (and why).  

The art of analogical reasoning is then explaining which of those two (similarities or differences) is more persuasive, moving, and powerful and why that is the case.  That's analogical reasoning.

For the OSHA requirement, we might say that the two situations (masks for spark mitigation versus vaccines for virus mitigation) are similar in that both are hazards that are preventable, that are prevalent in the workplace because of the close working conditions between workers and the hazards faced, and that the workplace situation exacerbates the hazards because of the duration of time that workers are present in the workplace.  In contrast, one might say that the two situations (masks for spark mitigation versus vaccines for virus mitigation) are dissimilar in that sparks are hazards not common to the public at large, tied specifically to the type of work done, and limited to particular workplace activities while the virus is widespread regardless of whether one is working or not, the virus is not the byproduct, like sparks are, of producing products or services for the employers, and that the virus is not limited to specific workplace activities but is present everywhere and in all such that if OSHA has that power it has virtually unbridled power, at least one might say.

At bottom, analogical reasoning is about using comparisons and contrasts to bedrock principles and trying to extend or prevent extension of those principles to new or novel situations.  In short, it's a form of peer pressure, which, in my own case, is one of the most powerful pressures of all.  So be friendly when you engage in analogical reasoning.  Don't press too hard.  Let your explanations do the pressing.  (Scott Johns).

 

Pull the Goalie

*I am going to preface this by clearly admitting that I am not someone who regularly teaches bar prep and I know that what I am saying may come from a place of relative ignorance on many issues. I am sure I have missed some important nuances here-and for that, I apologize in advance.*

Recently, we got the news that my youngest child has passed all his required MCAS exams for high school graduation (MCAS is the Massachusetts Child Abuse System according to my kids, but really the Massachusetts Comprehensive Assessment System). These are the standardized tests that students in public schools start taking in third grade and take until they pass the required high school level exams for graduation. The elementary grade exams do not have any impact on grades in classes or promotion between grades-they may indicate a need for other school-based interventions or testing, but that is it. I’ve never let any of my children even see the reports that are mailed to parents.

These yearly exams are meaningless…until they have ultimate, high stakes meaning. Students cannot (without jumping through some significant, fiery hoops)graduate from high school without passing the English, Math and Science exams. Some parents complain that “teaching to the test” ruins learning for their children-which is a valid point. Some parents worry about the achievement gap between various groups of children (mainly along racial and socio-economic lines) which is a complete and unavoidable truth. If a test cannot be administered fairly, what is it assessing at all? And why would we attach such significance to an instrument that is irremediable?

And so, we arrive at the current iteration of the Bar Exam. At times, it seems to test a student’s ability to take the exam more than assessing knowledge of the concepts, theories, and skills it purports to assess. The same criticisms that are true about the MCAS are relevant here. We should not teach to a test-we should be teaching for learning. The achievement gap has not been bridged despite being widely acknowledged. And yet, the Bar is the key that opens the gate to many careers in law. With COVID and remote bar exam issues (technical, physical, and psychological), can we really say that it is an accurate instrument of assessment for practice readiness?

Has it ever been?

My thought for this Monday morning is this: since we all know people (not students, but peers) who have passed the Bar and were not ready for primetime, and we all know people who did not pass but were born ready to practice law, then how is passing the Bar a guarantee of anything? Think about it: (just about) every person who has ever been disbarred must have passed the Bar. So why not just pull the goalie here? What are we protecting when not every shot to the goal goes in--even when no one is there? The fact that law school accreditation is in some part contingent on bar pass rate shows, at best, a lack of creativity in assessment. At worst, it shows that we do not really wish to welcome all the qualified potential members into the profession.  We can do better.

(Liz Stillman)

Gestalt

I was a social psychology major as an undergraduate and I remember studying the psychological theory of gestalt, which is defined as “something that is made of many parts and yet is somehow more than or different from the combination of its parts.”[1] Basically, if I had known about outlining back in those days, I would have written the rule as: the whole is greater than the sum of its parts. As bar exam results trickle in from parts near and far, I think it worth revisiting this idea with both students and colleagues.

To students who have passed the bar, I would say, “Wonderful! Remember, there is more to you than this one credential. As an attorney, you will bring your whole self to the table and that will always be more than the sum of your parts.” To the students who have not passed the bar this time, I might say the same thing. I do not want to be dismissive of how meaningful this one credential is for them after a three (or four) year journey that has already been fraught with confidence crushing moments. I don’t want to toss out, “oh well, maybe next time” either because right now, I think these students may see “next time” as a craggy mountain to climb without any safety gear in truly inclement weather.  I also know that social media means that students will know about their classmates’ successes almost immediately and silence will be interpreted as failure. Literally. There really is no good answer other than “I’m sorry. How are you doing?”

I also worry about my colleagues who have poured every ounce of what they have into students to help them pass the bar (regardless of whether the students were willing vessels or not) and now have someone else’s success or failure be determinative of their worth. Is this how we value professionals?

When a football team loses a game, media outlets tend to blame everyone on the team-not just the quarterback or coaches, but the team as a whole: offense, defense, big guys, little guys. Even when one player makes an egregious error, the sportscasters tend to find additional reasons for the loss-even the weather or altitude can be roped in. When the team wins, the press is similarly wide in praise, as seen here by today’s Boston Globe after the Patriots won a home game yesterday, “[e]veryone went home happy Sunday. Mac Jones got his first 300-yard game and hit a 46-yard deep ball. Damien Harris rushed for 100 yards. Eleven players made a catch, and five different players got in the end zone. The defense created two interceptions…Smiles all around.”[2] And remember, these guys probably each get paid more than all the ASP folks at a regional conference combined.

So, when bar results are good, ASP folks are part of the overall winning team with smiles all around. But when bar results are not what we are hoping for, why do our ASP colleagues not get the same level of camaraderie? Why aren’t we always a team at that moment also? ASP folks, and particularly those who do bar exclusively, need to be given the grace of gestalt. So I say to you, regardless of the bar results at your school, you are more than the sum of your parts. As an ASP professional, you bring your whole self to the table and you are mighty.  

Judging someone’s competency or job security based on the performance of other people at a task that is not entirely knowable is something that is far above our pay grade.

(Liz Stillman)

 

[1] https://www.merriam-webster.com/dictionary/gestalt

[2] https://www.bostonglobe.com/2021/10/24/sports/who-cares-that-its-jets-patriots-needed-this-ego-boost/

How The Results of a New Study Analyzing First Time Bar Passage on The UBE Will Change My Messaging to Students and my Approach to Teaching Bar Prep Curriculum

How The Results of a New Study Analyzing First Time Bar Passage on The UBE Will Change My Messaging to Students and my Approach to Teaching Bar Prep Curriculum.

As Academic Support Professionals, we are always striving to find the best way to reach each student in our classes.  We cull through textbooks, outside materials, attend conferences and ask questions of colleagues to find best practices and integrate as much of what we think increases bar pass potential into our lectures.  Recently, the New York State Board of Law Examiners (NYSBLE) commissioned a study to find the key metrics for first time and second time bar passage success.  The report, ANALYZING FIRST-TIME BAR EXAM PASSAGE ON THE UBE IN NEW YORK STATE:  Insights From a Study of First Time and Second Time Bar Exam Candidates, captured data over two years (2016-2018) and was released May 19, 2021.  While the study does not capture any data from the ongoing pandemic, it does give insight into key factors we should all incorporate into our curriculum to increase bar passage success. 

While New York is a UBE jurisdiction, and the jurisdiction I am in (Texas) just became a UBE jurisdiction in February 2021, I believe the results transcend testing standards and will prove useful to all in the Academic Support space.  The results of the study found the following six metrics have the most positive impact on bar passage success:

1. Hours put in—the rule of 400! I always tell my students to aim for 500 because 400 is the bare minimum necessary and many students need more than the bare minimum. 
2. Time management and messaging to those around the candidate—I tell my students in our first conference period that they will need to turn the volume of any outside distractions down to 0 when it comes to bar prep. Of course, many of my students cannot, as they have families, work obligations, etc.  But I message early and often that will need to tell their partners/support team the following: “I will be underground during bar prep.  This will be a grueling and relentless process and I will be unavailable for [chores/pet duty/heavy parenting/bill paying/dinner making/grocery gathering/car tending/socializing/full time working] and I need you to understand I will come back up and be 100% available after I take the bar, but this is an investment in our future together, so I need your grace and space right now.” 
3. Managing the clock—we talk about this a lot in class and spend a lot of time practicing the habit of managing the clock. The report calls out the MEE and the MBE as areas of time management concern, but I personally think the MPT is where clock management is hardest and where additional practice can prime the candidate for success to beat the clock.  I ask my students to find time to practice eight MPT’s during commercial bar prep.  I am aware that many of their peers in the commercial bar exam prep courses will not spend as much time practicing and may even tell others it is not worth the time.  I always caution against listening to this advice.  In my jurisdiction, it could be the difference between passing or failing.  Therefore, I tell my students to find the time to practice two each in the four types of tested subjects (objective, persuasive, letter writing and wildcard) before they take the bar exam.
4. Journal participation—the report talks about not having enough data to know if journals tend to pull better writers who usually have higher class rank and therefore perform better on the bar exam, or if the additional exposure to writing and editing that being on a journal entails helps prepare them for the bar. I tend to the think it is both!  I certainly see that students who have journal experience come to my class with more robust writing skills, although by the end of the course, I would say journal and non-journal students are equally situated with writing skills, probably because of all the writing we do in class.
5. Reducing financial anxiety—debt and employment. Horrifyingly, the NYBLE study quotes a student who describes being so stressed from food and housing insecurity during bar prep that the candidate could not devote the hours necessary to study and did not pass on the first attempt[1].  Institutionally, I hope our universities are taking measures to reach students who cannot take bar loans but need resources to devote to studying.  With the new ABA Standard 316 requiring 75% of law graduates pass the bar exam within two years of graduation, I would hope that our institutions are looking at ways to ease the financial struggles of the bar prep experience.  Doing so will go a long way towards decreasing the financial anxiety during bar review.  That in turn should increase bar exam passage and help generate positive feelings towards the law school.
6. Completing elective courses in bar topic classes does not correlate to bar passage—only two classes are mentioned as having a positive impact on first time bar passage and those courses are Evidence and Limited Liability Companies and Corporations. I think it is fair to say that those courses should be highlighted in our curriculum to ensure our students have a robust understanding of the material.

These metrics will certainly be used in ASP programs across the country to shore up areas of weakness and concentrate on areas of strength.  One metric the study touched on briefly but only identified as having some positive beneficial impact to second time test takers is assessment of learning style.  Specifically, the study noted that second time test takers often change the approach to studying to better suit their personal learning style, and that the change, while not always having significant positive effect, does somewhat correlate to increased scores (even if the increase is not enough to achieve a passing score).[2] 

I find the mention of increase scores for second time test takers as they adapt studying to suit their best study styles fascinating, and I think we can use that to gain even more improvement in test scores for both first time and second time bar takers.  Law school, academic support programs, and commercial bar preparation courses all tend to teach in a style that benefits left brain thinkers (lectures, outlines, Socratic method while sitting in place) which promotes linear thinking.  That type of teaching is at odds with the way right brained thinkers learn best (tactile/kinesthetic, need to move, talking it out, main ideas first then fill in with details).  In A Primer on Learning Styles: Reaching Every Student, 25 SEATTLE U. L. REV. 139 (2001), M.H. Sam Jacobson posits that many lower performing law students tend to be right brain learners and therefore might not understand the best approach to succeed in law school right away.[3]  They then fall to the bottom of the class, and at my institution, these students make up the vast majority of those in our academic support classes.  I think an opportunity exists to explore our curriculum and see if we can make adaptive changes to more fully capture these students who will make excellent attorneys but need a different style of teaching to fully engage their brain with the material.

As an adjunct working in this space since Spring 2020, many of the key factors listed as success metrics are topics I discuss with my students in one-on-one conferences.  But I have only given cursory thought to the idea of different learning styles when preparing my lectures.  Since teaching in this space, I have encountered a few students who have disclosed they are eligible for accommodations because of learning differences and a few students who I suspected may have learning differences but who never disclosed.  Learning differences highlight how important it is as an instructor to find the modality that will reach that specific student with that particular learning difference.  

At my institution, much of our Academic Support curriculum relies on commercially produced videos that the students watch, outlines they can fill in while watching the videos, then lectures by me with the aid of a PowerPoint.  And while these approaches include oral/aural/visual learning styles, it does not really help those who need a big picture, top-down approach.  I am going to think about ways to take the big picture and break down the building blocks into more manageable pieces so that I can represent the material with more illustrations, pictures, and charts, and promote the benefit of handmade flashcards for rule memorization.  Those tools are all proven to be useful to the visual-spatial right brain learner.  In the one-on-one conferences I do with each student, I am going to spend more time taking a learning style inventory in our first conference.  I will ask up front--how would you describe your learning style?  What helps you learn best?  Listening to a lecture?  Reading text in a book? Looking at illustrations, pictures, and charts of materials?  Thinking about the whole picture?  Thinking about how to build it from the bottom up?  Asking each student to think about their learning style and then using that data, combined with how they are progressing in the class on the metrics I score them on, will help me advise them how to study in the last conference we have at the end of the semester. Once I have completed that assessment and collected the data, I will be better positioned to advise my students for success with the commercial bar prep programs.  Are you a left brained type of learner?  Great!  The commercial bar prep courses will probably be just fine for you.  Follow their guide for studying to a T and you will likely be well positioned to pass the bar on the first attempt.  Are you a right brained type of learner?  Great too!  Just know that the material and guidance given by the commercial bar prep programs will likely need to be adapted by you (or you and me) to fit your learning style best.   And it is okay to take the commercial bar prep course material and adapt it to a style that suits your needs.  You do not have to follow BARBRI or other commercial bar prep program completely to find success and pass the bar on the first attempt.   I think if we all keep in mind the impact of different learning styles and the need to adapt to a learning style that fits each of our student’s needs, we may see incremental to substantial improvement in first time bar passage rates. 

(Kathryn Shotwell, Guest Blogger)

 

References: 

1. THE NEW YORK STATE BOARD OF LAW EXAMINERS (NYBOLE) AND ACCESSLEX INSTITUTE, Analyzing First-Time Bar Exam Passage on the UBE in New York State: Insights From a Study of First Time and Second Time Bar Exam Candidates, May 19, 2021.
2. American Bar Association Standard 316. BAR PASSAGE At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation. (2020-2021)
3. M.H. Sam Jacobson, A Primer on Learning Styles: Reaching Every Student, 25 SEATTLEU. L. REV. 139 (2001).

 

[1] THE NEW YORK STATE BOARD OF LAW EXAMINERS (NYBOLE) AND ACCESSLEX INSTITUTE, Analyzing First-Time Bar Exam Passage on the UBE in New York State: Insights From a Study of First Time and Second Time Bar Exam Candidates, May 19, 2021, pg 41

[2] THE NEW YORK STATE BOARD OF LAW EXAMINERS (NYBOLE) AND ACCESSLEX INSTITUTE, Analyzing First-Time Bar Exam Passage on the UBE in New York State: Insights From a Study of First Time and Second Time Bar Exam Candidates, May 19, 2021,  pg 23-24

[3] M.H. Sam Jacobson, A Primer on Learning Styles: Reaching Every Student, 25 SEATTLE U. L. REV. 139 (2001), pg 142: “Professors can help their students achieve their full potentials by teaching to the diverse learning styles in the classroom. Teaching to diverse learning styles helps students in two significant ways. First, students will be more successful in mastering their coursework if they are better able to absorb, process, and retain information. Second, students will be more successful in mastering their coursework if they learn how they learn best.”