Tuesday, October 1, 2019
July 2019 bar exam results are not due to be released in New York for a few more weeks, but already here in Buffalo we have glad tidings, for one of our students took the Florida bar exam and has learned that she has passed. What a thrill! One that will soon be experienced by many others across the land.
Is there anything else that prompts the same surreal combination of pride and relief? In an instant, a person’s very definition changes. They go from not possessing a certain authority to possessing it (at least after other formalities are met). Is it any wonder that the storied Jonathan Harker, wandering alone in a foreign land and distracted by the strangeness of it all, forgot for a moment his own momentous achievement?:
What sort of place had I come to, and among what kind of people? What sort of grim adventure was it on which I had embarked? Was this a customary incident in the life of a solicitor’s clerk sent out to explain the purchase of a London estate to a foreigner? Solicitor’s clerk! Mina would not like that. Solicitor—for just before leaving London I got word that my examination was successful; and I am now a full-blown solicitor!
Harker’s momentary pleasure at the memory of his bar passage is soon dampened, however, by the cold foreboding of the great estate he stands before – and no wonder, for only a few minutes later he meets the master of that castle, who greets him with the words, “Welcome to my house! Enter freely and of your own will! . . . I am Dracula. . .”
Whatever horrors Harker had to face next, at least he had made it past the doubt and anxiety that many people feel while waiting for their bar results to be revealed. Consider the unfortunate Mitch McDeere, the latest Harvard Law graduate to be hired by the high-end Memphis law firm of Bendini, Lambert and Locke. One autumn afternoon, Mitch is called unexpectedly into an urgent meeting:
Lambert, Avery, and what appeared to be most of the partners sat around the conference table. All of the associates were present, standing behind the partners. . . . The room was quiet, almost solemn. There were no smiles. . .
“Sit down, Mitch,” Mr. Lambert said gravely. “We have something to discuss with you.” . . . He frowned sincerely, as if this would be painful. “We’ve just received a call from Nashville, Mitch, and we wanted to talk with you about it.”
Poor Mitch immediately guesses what this is all about:
The bar exam. The bar exam. The bar exam. History had been made. An associate of the great Bendini firm had finally flunked the bar exam. . . . He wanted to speak, to explain that he deserved just one more chance, that the exam would be given again in six months and he would ace it, that he would not embarrass them again. A thick pain hit below the belt.
“Yes, sir,” he said humbly, in defeat.
Lambert moved in for the kill. “We aren’t supposed to know these things, but the folks in Nashville told us that you made the highest score on the bar exam. Congratulations, Counselor.”
The room exploded with laughter and cheers.
Surprise! Not what Mitch was expecting. Unfortunately, Mitch’s satisfaction is nearly as short-lived as was Harker’s, for less than two pages later, in John Grisham’s The Firm, Mitch McDeere meets an FBI agent who explains that the Bendini firm is mostly a front for the criminal activities of the Chicago Mob, and that attorneys who try to leave the firm always end up dead.
Dracula and The Firm were both sensationally popular novels, which suggests that there is something highly resonant about the notion of passing the ultimate test of professional ability, only to be led directly into a world of evil and mortal danger. I suspect some people enjoy the irony – He’s supposed to be so smart, but he wasn’t smart enough to avoid the King of the Undead or the Capo di Tutti Capi – and other people appreciate the moral question – Does mere intellectual knowledge even matter when a person is faced with a threat to his life and soul?
But law graduates might see yet another layer to these tales: After all this hard work to pass the bar, over three crushing years in law school and ten blistering weeks of bar preparation, is my “success” just going to take the form of an indenture to forces that seek only to exhaust my vitality to feed their own appetites? True, most attorneys do not end up working for vampires or gangsters, but even a wholesome job for a decent employer can feel like purgatory to someone whose interests and aptitudes lie elsewhere. When our students are no longer our students, when they have taken and passed the bar and are out there gainfully employed, is that the end of their stories?
There might be a brief frisson in thinking so. Isn’t that why people read suspense stories? But if there are two last messages we can leave our students with, they are that passing the bar is both an ending and a beginning, and that the skills they’ve learned in meeting that particular challenge will be skills they can use in meeting future challenges as well. If they can pass the bar exam, they can overcome anything – a misfit job, a toxic employer, even a threat to their lives and souls.
And Jonathan Harker and Mitch McDeere are evidence of this, because they each survive their ordeals. In both Dracula and The Firm, the heroes triumph by relying on three core competences – the same three competencies we emphasize in preparing our own students to pass the bar and to perform well in practice: knowledge of the law, application of sound personal judgment, and reliance on a network of support. Harker escapes from Dracula's castle by finding an unconventional route to freedom and judging that the risks of flight are smaller than those of remaining in place. Once he makes it back to England, he uses his legal skills to locate Dracula's hidden lairs, documented in a tangle of deeds and conveyances, and then he teams up with a band of friends to track down and eliminate the fiend and his minions. McDeere has the good sense to realize that neither the firm nor the FBI has his safety or best interests at heart, and, turning to a small group of family members of those previously hurt by the mob's activities, devises his own plan to use the legal tools he has learned to escape from the gangsters while passing along the evidence needed to bring down the Bendini firm. Sure, this is all fiction and fantasy, but fiction is often popular because it provides another way of telling a truth.
To everyone who finds out in the next few weeks that they have passed the bar examination: Congratulations, and may the rest of your life be just as successful. Know that you have the ability to make it so.
Monday, September 30, 2019
Titles are granted, positions are given, but it’s respect that earns you credibility. - Lolly Daskal
This is the second in a series of weekly blog posts addressing the basics of effective teaching. Last week, I addressed the importance of knowing your audience, whether from the podium of a classroom or on a larger stage. It is equally important to establish your credibility in the classroom in a manner that fosters learning and builds student rapport.
A teacher is viewed as the subject matter expert in the classroom, whether the audience is a class of third-graders, or third-year law students battling Secured Transactions. But, deference to one’s subject matter expertise can be extinguished with the speed of a hand raise. How we answer questions, or if we answer them at all, matters. Authority is not credibility. While authority may be bestowed or presumed, credibility is earned - one interaction after another. True expertise is evidenced by our ability to field and answer questions, and it can be wholly undermined by our failure or refusal to do the same.
Recent experiences have, for me, sounded the call for a return to the basics of quality teaching. To ensure that our students are well-prepared to pass state bar exams, academic support professors try to develop and maintain subject matter expertise in legal licensure exams. Yet, to my great shock and frustration, the well-reasoned questions of scholars soldiering in the trenches of bar prep have been dismissed and derided by those at the helm of bar examination. When questioned about exam scaling and essay equating, I’ve heard psychometric experts say you’ll just have to trust us. Which begs my point: expertise without earned credibility hobbles the vital relationship between those who have information and those with whom the information needs to be shared.
In legal analysis and bar essay writing, we tell students to use the facts. We teach them to not assume that the grader knows the facts. Effective teachers and presenters, likewise, do not assume that the audience has the facts. Under no circumstance will good teachers be dismissive of student questions. Strong teachers are not afraid to be questioned about the factual basis for their research and conclusions. In fact, they welcome a circumstance for intellectual challenge; they are fulfilled by the opportunity to teach, explain, and enlighten.
As law professors we are shepherding the next generation into the legal profession. Just as we would never silence the earnest question of a student in our class, we must speak persistence to power and not allow our own questions to go unanswered. When laws, policies, Restatements, changes to testing protocols, and impediments to educational access are proposed, we must take audience with those empowered to enact change. We must seek clarity and reason, because we cannot effectively teach that which we do not ourselves understand.
Thursday, September 26, 2019
Common wisdom often suggests more is better...at least when it comes to passing the bar exam. But, just like more medicine is not always better for one's body (and even poisonous when taking too much), perhaps undertaking more bar-tested subjects as a law student is not associated with increasing bar passage results, at least for those most at-risk of not passing the bar exam. And, perhaps avoiding experiential learning courses is not necessary for students most at-risk of not passing the bar exam. Indeed, the latest forthcoming empirical research is all about exploring common conceptions about the relationships among experiential learning, taking bar-tested electives, and bar exam outcomes.
To evaluate these questions, we turn to two empiricist law professors - Robert Kuehn at Washington University and David Moss at Wayne State University - who have just released "must-read" research analyzing often-expressed narratives about the impacts of experiential learning and bar-tested elective courses on bar exam outcomes. Robert Kuehn and David Moss, A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. (2019) (forthcoming).
First, the authors evaluate the hypothesis that law students should refrain from taking too many experiential learning courses (such as clinics, field placements/internships, and simulation courses), most likely based on the belief that experiential learning crowds out doctrinal learning.
Second, the researchers evaluate the hypothesis that law students should take more bar-tested subjects rather than fewer to boost ones' promise of bar exam success, particularly for those most at-risk of not passing bar exams.
Their research is robust, using regression analysis to evaluate such variables as LSAT scores, UGPA, first-year LGPA, graduating LGPA, experiential learning courses (clinics, field placements/internships, and simulation courses), and bar-tested elective subjects [regression analysis allows researchers to control or take into account the influence of other variables in order to observe whether experiential learning credits and/or bar-tested course work are associated with improved bar exam outcomes].
As indicated in their republished table below, their research spans an impressive 10 year time span, examining first-time bar exam results, for 3891 law school graduates from Washington University and Wayne State University.
Given the depth and breadth of the professors' research, their findings provide food-for-thought for these two questions, at least based on their law school populations, as to whether law students most-at risk of bar failure based on LGPA should take fewer experiential learning courses and/or more bar-tested elective subjects.
As an initial observation, with respect to LSAT scores, both law schools observed relatively consistent LSAT means throughout the course of the ten-year period despite a general downward trend in bar passage rates beginning in or around 2013 and 2014. Consequently, at least based on their law school populations, bar exam declines appear to be unrelated to LSAT admission decisions since LSAT scores remained relatively flat throughout the ten-year research period.
With respect to experiential learning courses, the authors observe that both law schools have seen astounding increases in the number of experiential credits hours that their students are taking over the ten year period, which is not surprising given the American Bar Association's 2014 requirement mandating increased experiential learning requirements in order for law schools to satisfy more recent accreditation standards.
Nevertheless, despite the occasional claim suggesting that law students are taking too many experiential courses, which might compromise bar exam results, the researchers found that there was no statistical association between increases in experiential learning credits hours and bar exam performance (to include those students most at-risk of bar exam failure). Thus, the authors suggest that law schools should not counsel students to avoid experiential learning opportunities.
With respect to bar-tested elective subjects, the authors observed that both law schools have found that more recent bar takers are taking fewer bar-tested subjects than in the past. Perhaps unsurprisingly, the researchers found a modest correlation between taking bar-tested subjects and bar exam outcomes but only for those students with LGPA's that placed them most at-risk of bar exam failure.
However, critically, the authors observed that that was an apparent sweet spot in the number of bar-tested subjects taken by at-risk students such that there was no statistical benefit in at-risk students taking more than the approximate average number of bar-tested subjects at each school (just four electives out of fourteen bar-tested subjects for Washington University students and just seven electives out of nineteen bar-tested subjects for Wayne State students).
In other words, in my reading of their research based on their populations of bar exam takers, law schools might counsel at-risk students to take a handful or so of bar-tested subjects but also advise them that they need not take the entire panoply of bar-tested elective subjects (as more than the average has no empirical benefit of improving bar exam outcomes). And, we should not at all fear encouraging at-risk students from actively participating in experiential learning courses, whether in the form of clinics, internships, and/or simulation courses.
In short, there's much room for curricular exploration by at-risk students without compromising their bar exam outcomes...and that's good news worth thinking about as we meet with our students about their curriculum choices.
Monday, September 23, 2019
The most important knowledge teachers need to do good work is a knowledge of how students are experiencing learning and perceiving their teacher’s actions. ~ Steven Brookfield
I love innovative pedagogy. Tools like mind maps, retrieval practice, spaced repetition, and self-directed leaning strategies have been game changers in higher education. I am always looking for ways to enhance and improve my teaching. But innovation is an enhancement to, and not a replacement for, the most basic tenets of quality classroom teaching. In this series of weekly blog posts, I will address teaching basics that are the telltale traits of effective teachers.
- Know your audience
We cannot afford to make assumptions about the knowledge or background of the students in our classes. Recently, I attended a conference planned for academic support and bar prep professionals. The first few hours of the conference were devoted almost entirely to explaining basic components of the bar exam. I concluded that the presenters either underestimated the skill and experience of the audience or failed to tailor a previously used presentation for the present audience. My perception of audience reaction to the content and delivery was a combination of polite appreciation, genuine curiosity, and suppressed rage. As audience participants, we have both the luxury and opportunity to make critical assessments of the projected and realized learning outcomes. But a seat on the other side of the podium also yields an enlightened perspective on effective learning strategies.
Rather than disconnect myself entirely from the redundancy of the content presented, I used the time to introspectively examine whether I had made the same mistakes. To my deep chagrin, I had. Insert hand raise emoji. I teach an early bar prep course, enrollment in which is restricted to students in their final year of law school. Because I cannot cover all the bar exam subjects in the time allotted for class, I select a few subjects. Routinely included in my course coverage are Property, Torts, Evidence, and Criminal Law. Although I intentionally include required courses, and stray away from electives that not all students will have taken, I failed to thoroughly research my audience this semester. In so doing, I did not discover, until after class had begun, that two students in my class had not yet completed the required course in Evidence.
One student was concurrently enrolled in Evidence and my course, the other had decided to wait until next semester to complete their requirements. I gut-wrenched at the thought of their polite, yet passive, frustration with me as I assigned practice questions testing hearsay - a topic with which they had no prior exposure. Of course, there are many law schools who do not require coursework in Evidence, and a corresponding number of students who learn/study the evidentiary rules for the first time during bar prep. Pedagogically, however, had I taken the time (actually a lot of time) to review the transcripts of the students enrolled in my class, I could have scheduled assignments that equally serve and challenge them all. Even though time consuming, doing my homework on my audience is just as important as being well studied in the subject matter that I teach. Suddenly my frustration with another’s seeming underestimation of my knowledge base was supplanted with embarrassment by my own overestimation of my students’.
Tuesday, August 27, 2019
Last year I wrote a post about "simulation training" that described the benefits of rehearsal and practice under conditions that are as close as possible to performance conditions. When preparing for a final exam, for example, taking practice tests under exam conditions of strict timing and silence in a room similar to the room in which you will actually be tested can help you score better on the actual exam. The improvement seems to be linked to the reduction of unfamiliar stimuli and the association of familiar conditions with execution.
Given the demonstrable benefits of creating consistency between exam practice and exam execution, I would have presumed that a similar effect might have been observed with respect to the precursors to exam taking -- namely, study and memorization. If it makes sense to practice taking law exams in silence and in one particular environment, wouldn't it also make sense to learn all the rules, exceptions, and examples under the same conditions? In his book How We Learn, Benedict Carey suggests that may not be the case.
Learning facts like rules of law is different from learning how to perform tasks like timed essay writing, largely because of the different roles of background stimuli. When learning tasks, the consistent quality of background stimuli is important, because it helps provide a comfortable environment that we associate with the task. While this is also somewhat true when learning facts, it turns out that the quantity of stimuli is of relatively greater importance. An absence of stimuli makes it more difficult to memorize material. In one experiment, students were asked to memorize a list of forty words. While they studied, the scientists played either jazz or classical music in the background, or, alternatively, no music at all. Students who studied while listening to jazz had the highest rates of recall when tested while jazz played in the background, and those who studied while listening to classical did best when tested while classical was playing. When each of those groups of students were tested while listening to different music, or to no music at all, their rates of recall were cut roughly in half. But the students who studied in silence did not have higher rates of recall when tested in silence. Their recall rates were also about half that of jazz listeners who were tested with jazz, or classical listeners who were tested with classical.
The explanation seems to be that, when we are learning facts, it helps to have some level of background stimulus. The external stimulus seems to provide a framework within which learners can organize and attach meaning to the facts they are learning. Thus, when the external stimulus is present at testing time, it is easier for the test takers to access the facts for recall, because they have access to the framework in which they learned them.
Most professors, however, do not allow students to crank tunes during exam administration. Not even smooth jazz. And duplicating the silence of testing conditions will not be as helpful for memorizing the rules as it is for applying them, since silence does not provide the necessary external stimulus. So how should students learn their rules and examples?
Carey suggests that the best strategy for this kind of rote learning is to work in a variety of different environments. He points to another word-memorization experiment, one in which subjects were asked to study in two separate, ten-minute sessions. Some subjects spent both sessions in an untidy basement room. Others spent both sessions in a windowed room overlooking a green courtyard. And a third group of subjects spent one session in one of those rooms, and the other session in the other room. When all subjects were tested for recall later in a third room (a classroom), those in the last group, who had studied in two different environments, had 40 percent higher rates of recall. While no one knows for sure, the theory is that those who studied in two different rooms had the benefit of two different sets of external stimuli, and thus built two different, overlapping "frameworks" within which they learned the words. Having two different frameworks provided additional memory access points that might be used in the neutral third environment.
So what are the lessons for law students? First, we should help them to recognize that there should be different study strategies for learning and memorizing rules and facts, versus developing one's skills in applying those rules. Second, we can suggest that students add some variety to their study environments when they are performing more of the basic rote memorization (such as at the start of the semester, when they are first learning the relevant rules). Encourage them not to spend all their time in the same spot in the library, but to break up their study into chunks of time spent in different milieus -- spending some time in the library, some time outdoors, perhaps some time in a coffee shop (especially one playing jazz or classical music). Students who associate the learning of the same rules to different external stimuli will be more likely to be able to recall those rules under any set of external stimuli, or even when there seems to be no external stimuli at all.
Sunday, July 28, 2019
Social media timelines are aflutter since the California Bar Examiners released, days early, the question order and subjects for the July written exam. After someone “inadvertently transmitted” test information to “a number of deans of law schools,” the CA examiners disclosed the same information to all registered July 2019 California bar takers. The internet remains undefeated and the information now hovers in the public domain accessible to us all for comment and critique. The CaliLeaks, as I refer to them, sent ripples of shock, resentment, and gratitude throughout the community of future, past, and present bar takers.
Dear California Bar Examiners, you did the right thing. You responded to a mistaken disclosure by disseminating the same information to all bar takers, to prevent any actual or perceived unfair advantage. You made a mistake and you owned it. There is a lesson in every mistake and I hope that other bar examiners, and especially the NCBE, with its foot on the jugular of all but a few states, will learn from yours.
In an ideal scenario, the premature and selective leak of confidential information to some law deans would not have occurred. No student should be disadvantaged in terms of familiarity with the exam content, inside knowledge, or the opportunity to pass. We now know the identities and school affiliation of the receiving deans. I am naive enough to believe that respected academic leaders would not compromise the integrity of the bar exam by sharing confidential information about its content. I am also cynical enough to recognize the good reason of those who question whether bar takers from some schools may have received information days before bar takers from other schools. Notwithstanding the many unanswered questions, California's disclosure (the one to all of its bar takers) is something that could have and should have happened long ago.
For goodness sake, the bar exam is based, at least in theory, on fundamental legal principles learned in law school. Knowing the general subject area to be tested is not a dead giveaway to the question content. Bar examiners in Texas have provided general subject matter information for decades. It is a preposterous notion that knowing the subjects that will be tested will lead to a flood of unqualified lawyers. Consider the law school final exam as the loosest conceivable model. Law students know to expect Property questions on their Property final exam, but it still leaves them to their own devices to prudently review the full scope of course coverage from possessory estates and future interests, to conveyances, recording acts, and landlord-tenant rules. Disclosure of the tested question areas should not be Monday morning tea, instead it should be the norm in bar examination. Telling would-be lawyers what they need to know to be deemed competent to practice law isn’t a blunder or a gracious act. It is the right thing to do.
I challenge any lawyer, law student, or law professor to imagine the futility and frustration of completing a full semester of required first-year courses, spending weeks preparing for final exams, and then not learning until the beginning day of final exams which courses will be tested and which will not. As unthinkable as this notion may be, this precisely describes the current practice of bar examination in most states and under the UBE. Time will tell if California’s leak leads to a more reasonable exam process and to less arbitrary bar failure rates. If it does, then others should follow suit. We need a better bar exam and California’s error could be an accidental step in the right direction.
Thursday, July 18, 2019
I recently saw data suggesting that bar passers do things differently in the final weeks of bar prep than those who are not successful on the bar exam. That got me thinking about what I've been seeing, at least anecdotally, in working with students in preparing for their bar exams.
But first, let me be frank. Without hard dedicated work in learning throughout the course of bar prep period, and in particular, during the final week, it's really difficult to pass the bar exam because the bar exam, in the last few years, has become much more challenging, particularly due to cognitive load. See L. Schulze, Dear Practicing Attorneys: Stop Giving Our Bar Students Bad Advice. Thus, it's not just hard work that makes for passing the bar exam. Rather, it's important to make sure to do what is most optimal for learning during the final week of bar prep. See S. Foster, Positive Self-Talk.
So, even with all of the hard work, what might account for the differences in bar passage outcomes for both groups of diligent bar studiers? In short, it must be in the type of work that the two groups are doing rather than the quantity of work. In the last week, bar passers tend to ramp up their practice with lots and lots of MBE questions and essays while also working on memorization while people who are unsuccessful tend to focus on creating perfect study tools trying to memorize every little nuance of law with very little continued practice. In sum, one group is continuing to practice for the exam that they will take and the other group is focused on memorizing for the exam.
But, here's the rub:
It’s a perfectly natural feeling during the last week of bar prep to want to focus solely (or mostly) on creating perfect study tools and trying to perfectly memorize all the law.
But, according to the educational psychologists, there’s something called “desirable difficulties.” You see, when we jam pack our study tools with everything, we aren’t learning much of anything because we aren't making hard decisions about what is most meaningful. And, with everything written down, there's no opportunity for retrieval practice, which is the best form of memorization practice.
So, as a suggestion for the final week, tackle two to three subjects per day. Work through a number of essay questions for each subject. Then, take your study tool and use it for retrieval practice, reading it and then covering it up to see if you can spout out what's in it. Push yourself. You might even take your study tool and, without looking at it, recreate it in a different format, for example, converting it from an outline to a poster, etc. Then, in the evening, work through a batch of MBE questions, pouring and pondering through them. Finally, when you miss something in an essay or MBE question, add that concept to your study tool. As Prof. Micah Yarbrough at the University of Maryland says, your study tool becomes a sort of "bar diary" of your adventurous travels in learning by doing. And, it's in the learning by doing that makes all the difference in passing the bar exam because the bar exam tests - not just memorization - by problem-solving. So, for those of you taking the July 2019 bar exam, focus on practice first and foremost throughout the final week of your bar preparations because you aren't going to be tested on your study tool. Rather, you're going to be testing on whether you can use your study tool to solve hypothetical problems. And, good luck on your bar exam this summer! (Scott Johns).
Monday, July 15, 2019
You can choose to listen to the skeptics or hit the ignore button. - Michael Peggs
Our students today have become adept at shunning criticism and negative input. When coaches or teachers prejudge students at any age, there is an army of protective advocates who will stand up for the wronged student and demonstrate that with the right accommodation a student may exceed the expectations of a perceived disability. We full-scale reject the haterist mindset that seeks to label learners with arbitrarily imposed limitations. Taylor Swift warned us that “haters gonna hate”. Yet, too often when the stakes are high, and especially during bar study, we stir up our own hater-aid. Over the years I've overheard students say things like: “I’ve never been good at standardized tests,” “I am never going to learn all these essay subjects,” “I’ve got too much going on to study the way I should,” and “I don’t expect to pass on the first time.”
You may need to mute your inner monologue, if it is filling your mind with self-defeating prophecy. Each time a fear-based thought tries to creep in, hit the ignore button and block it like a call from a telemarketer. Follow Taylor’s lead and shake off the self-doubt. Use daily bar study affirmations as an exercise in mindfulness to allow you to meditate on your positive potential. For the next two weeks, the only attitude you can afford is a can-do attitude. Repeat these affirming words until they become your reality: I can and will pass the bar. I am worthy of a bar card, and right now I am making plans for my life as an attorney.
Sunday, July 14, 2019
I still remember the kindly judge for whom I interned as a 3L. Knowing that bar prep was coming up and sensing my anxiety, he called me into chambers. “Louie,* have a seat.”
(* Remember, we’re talking about Boston. Anyone named “Louis” is called “Louie,” whether they like it or not. My co-clerks in the Superior Court were “Sully,” “Fitzy,” and “Other Sully.”)
Anyway, “Louie,” he said, “you’re a smart* kid. If you do half the work in that bar prep program, you’ll pass just fine.”
(* I’ll note that this is properly pronounced “smaahht.” See supra at Boston.)
He continued: “My firm* gave me two weeks off to study for the bar, and I did just fine. So stop worrying about spending three months studying.”
(* If I remember correctly, the firm was called “Oldguy, Oldguy & Deadguy, LLP.” Somehow, they made the group of Dan Aykroyd’s business school chums in “Trading Places” look like the picture of diversity.)
My judge’s advice was well-intentioned, and I appreciated his attempt to calm me down. But, the Type-A, neurotic kind of guy I was (errata: am), mostly ignored this advice and studied with the kind of ferocity only those with a festering inferiority complex can muster.*
(* I can thank my significant other at the time for the bar exam-related inferiority complex. An Ivy League law student, she’d repeatedly say, “It’s not like you went to Harvard.” Luckily, our relationship did not last much longer. Ironically, neither did her legal career.)
Many of our students are not so lucky, though. They hear this same tone of advice and happily digest it as a welcome counterthesis to the admonitions of that overly-intense ASP/ bar exam professor. “The partner at my firm said that Schulze is crazy.”*
(* A fair point. No objections so far.)
“You don’t need to do 1,500 Adaptibar questions or whatever. Just watch the videos, read the outlines, and you’ll pass.” The student then spends a relaxing summer watching some videos, hanging out with friends, and going to the beach. (Meanwhile, I’m in my office slowly rocking back and forth in the fetal position after seeing the student's stats and completion percentage data.)
Then, the student fails the bar exam.
The practicing lawyers who give this advice might think that the bar exam world remains a static place where nothing changes. But, the substantial changes to the bar exam over the last five to ten years severely limit the applicability of their experiences. Here are those changes and why practicing attorneys need to be careful with their advice.
Thursday, July 11, 2019
It's time to create your own personal handy-dandy bar exam study tools. But, you ask, how, with so many other things to do (and with just a few weeks before the bar exam). Well, here's a suggestion for creating your study tools from scratch in just a few easy steps and in less than 2 hours flat.
But first, let's lay the groundwork. Why should I create a study tool, especially with so many other tasks at hand that demand my attention in preparation for the bar exam in a few weeks?
There are at least three reasons.
First, the process of creating your own study tools creates a "mental harness" for your thoughts. It serves to bring you back to the big picture of what you have been studying the past many weeks since graduation.
Second, the process of creating your own study tools cements your abilities to synthesize and distill the rules that you will be tested on this summer. In short, we memorize (remember) what we create rather than what we read that others have created.
Third, your study tools are, in essence, an organized collection of pre-written, bar exam answers for tackling the hypothetical problems that you will face this summer on your bar exam.
So, let's set out the steps:
1. Grab Your Study Tool Support Team!
That means grabbing hold of the shortest bar outline provided by your bar review company. Shorter is better because less is often more! And, you already have too much to remember.
2. Create the Big Picture Skeleton for Your Study Tool!
That means taking hold of the table of contents in your bar outline provided by your bar review company or the subject matter outlines provided by the bar examiners. For example, the NCBE provides super-short two-page outlines for each subject on what issues are testable. http://www.ncbex.org/meeoutlines. Then, using that skeleton structure, create an overview of the testable issues in your own desired format, whether as flashcards, posters, or outlines, etc.
3. Insert Rule Sound Bites!
Using your bar review lecture notes or subject matter outlines, insert rule "sound bites" for each item identified as testable subjects. Move swiftly. Don't dwell. If you think you you need a rule, don't put it in...because...you can always add more rules later if you see that rule popping up in your practice during the course of the next two weeks. Don't try to create perfect rule statements. Instead, just insert the "buzz words." Feel free to be bold, daring, and adventuresome in doodling or using abbreviations to remind you of the rule. For example, for negligence per se (NPS), my study tool just reads: (1) P.C. and (2) P.H. That stands for protected class and protected harm. By writing out just a few tips to help me remember, I am actually enhancing my study tool (and developing my confidence in being able to recall, for example, the requirements for NPS). Get your entire study tool completed in 2 hours or less! How, you ask? By leaving lots of stuff out because you can always add more later. Here's a tip: It's called "desirable difficulties." You see, according to my arm chair understanding of the science behind learning, optimal learning requires us to push ourselves; it requires mental perspiration, it takes sweat. So, the process of deciding what to put into your study tool (and what to leave out, and, indeed, leaving out lots) enhances are learning because we can't solely rely on our study tools for memorization. Rather, our study tool because a prompt for our memory. So, keep your study tools super-short and crisp.
6. Take Your Study Tool for Lots of Test Flights During the Final Several Weeks of Bar Prep!
Yes, you might crash. Yes, it might be ugly. In fact, if you are like me, you will crash and it will be ugly! But, just grab hold of lots and lots of past bar exam essays and see if you can outline and write out sample answers using your study tools
Finally, let me make set the record straight.
You don't have to make an outline as your study tool. Your study tool can be an outline…or a flowchart…or a poster with lots of pictures...or a set of flashcards, etc.
What's important is that it is YOUR study tool that YOU built from YOUR own handiwork and thoughts! It's got to be personal to you because it's going to be you that sits for your bar exam. So, have fun learning by creating super-short snappy study tools that serve as organized pre-written answers for this summer's bar exam. (Scott Johns)
Tuesday, July 9, 2019
Like my colleagues, I am thinking ahead to the new school year even as my attention is consumed by those preparing for the bar exam three weeks from now. Last year at this time I was thinking mainly about scheduling and content and skills development, and how to tweak and rearrange my classes and workshops to make them more effective. This year, I find myself thinking at least as much about stories as about skills.
Part of this cogitation is driven by my conversations of late with students dealing with varying degrees of anxiety about the bar exam. I ask them how they are doing and what has led them to whatever position they currently find themselves in, and their narratives fall broadly into two categories. Some students tell me kinetic stories about what work they have done, what challenges they have faced, and what strategies they have employed. They may not have conquered every problem that has come up -- in fact, that's usually why they are talking to me -- but they still see themselves as the protagonists who are driving their stories and pursuing some kind of prize. Other students, even some with objectively similar obstacles, tell their stories in a different way. They are still the centers of their own stories, but things keep happening to them (poor performance on a practice test, illness, misunderstanding, etc.), and they are just doing what they can to cope. These latter folks are not doomed, by any means; they are, in fact, often quite capable. But they do seem to feel more anxiety and doubt than the more protagonistic students. So part of what I am wondering is whether it might be possible to cultivate that sense of protagonism by using language that highlights one's sense of agency and potency, from the very start of law school. Perhaps by using less language about "what will happen" and "what you will encounter", and more language about "what you will learn to do" and "how others have overcome difficulties", I can shift students' perspectives in a more empowering direction.
Another aspect of storytelling that has become clearly significant over the past year is how students perceive their stories in relation to their law school -- their fellow students, their class as an entity, their professors, their administration, and their alumni community. At the start of my 3L pre-bar prep course this spring, I felt it was very important to intentionally and repeatedly talk about our class as a team. We were there to support each other, I said, because we had common goals as individuals and as a group. Each student wanted to pass the bar exam in July -- that much they knew going into the class -- but, I pointed out, each student should also want to see everyone else in the class pass, too. Teamwork might mean going a little further to help our classmates in a pinch, but it also means we've got a bunch of other people in our corner, willing to do the same for us. The faculty, the administration, and the alumni want to see them succeed, too, because their success makes everybody look better, and because we've invested so much energy and faith in them. And if the class does notably well as a group on the bar exam, their pass rate becomes public information that makes them all look like part of a stellar crop of new lawyers.
At times I felt almost like a goofy cheerleader telling this story, and encouraging my students to tell that story about themselves as a team. But it seems to have paid off. This summer we are seeing notably higher rates of participation and completion of assignments in summer bar prep courses. Recent graduates are spending more time together, on and off campus, and I've been talking to far more of them in my office and on the phone than last summer. Just telling a story of teamwork isn't enough -- the school has also had to walk the walk, by providing additional resources and guidance to students -- but it is clear that intensifying our characterization of getting ready for the bar as a communal effort has had a positive effect.
This is another thing I am wondering about, as I move forward with plans to work with our new incoming students. How can I tell that story of the law school as a team in a way that will stick with these new students for three intensive years? Is there a way to cultivate that story in the face of the known competition for grades in the first year? Is there a way to keep that story from becoming trite and from being tattered by cynicism? I think there must be. It's not just the telling of the story that makes it work; it's also acting the story out, and making it seem real because it could be real.
So, while I will be working on better ways to improve students' analytical and time management skills this fall, I will also be thinking about better ways to tell them stories -- about themselves as individuals and as part of this new community -- that they can believe in. Stories that they will want to carry on telling themselves.
Thursday, July 4, 2019
On this July 4th holiday, with just under a month to go for this summer's bar takers, let's face the facts:
Most of us are downright exhausted.
And, we should be because we've been working pretty much non-stop since graduation Moreover, given what seems like the insurmountable pressures to learn so much material for the bar exam, it seems like we can't let up with our daily regiment of bar studies. There's just too much to learn.
However, let me offer you an encouraging way to "let up" so that you can feel mighty good about taking a real day off, whether today or this upcoming weekend.
Here's how and why...
Holidays, such as the Fourth of July, are some of the best days of the year to see bar exam problems in living color.
That box of fireworks someone bought at a big-top fireworks tent stand. That was procured through negotiation of a UCC contract for the sale of goods (and the seller most likely provided a secured transaction agreement in order to bring the goods to sale).
That box of fireworks that didn't work as advertised. Well, that might just blossom into a breach of contracts claim or even a tort claim for misrepresentation.
That box of fireworks that were lit off in the city limits. In most cities, that's a strict liability crime, plain and simple.
You see, even when we take a day off from studies, we are live in the midst of a world of bar exam problems. In fact, we are surrounded by bar exam problems because the bar exam tests legal situations that are constantly arising among us. So, it's a good thing to get our heads out of the books occasionally to see what's happening around.
That means that you can completely feel free to relax and take a whole day-off because even while taking a time-off, you will still be learning lots from just living in the world. And, because you've been trained as a professional problem-solving attorney, you can't help but see legal problems in full color everywhere. That's a sign that you are well underway in preparations for your bar exam this summer.
So, please rest assured - bar takers - that in the midsts of a day-off with family and friends, you'll be learning helpful legal principles that you can bank on preparation for success on your upcoming bar exam. And, as a bonus, you'll get some mighty needed rest to recharge your heart and mind too! (Scott Johns).
Tuesday, July 2, 2019
In Michael Crichton's book The Lost World, his sequel to Jurassic Park, the scientist Ian Malcolm observes that the velociraptors -- pack-oriented hunting dinosaurs that have been brought back from extinction through genetic engineering -- behave unexpectedly viciously towards each other. Ordinarily, pack animals would work under some kind of social structure, as, for example, when wolves are led by a single alpha male, disadvantaging other males but minimizing conflict and maximizing cooperation among the pack as a whole. But in the book, the velociraptors are depicted as combative and treacherous, attacking each other at the slightest provocation or opportunity.
Malcolm realizes that even though the DNA used to recreate these creatures captured perfectly the information needed to duplicate the originals physically, there had been no means by which the scientists could have reproduced the social structure that the original animals had developed and passed along over uncounted millennia. Without that information inherited from previous generations, the cloned velociraptors could only work out their own "culture" by trial and error -- mostly maladaptive, destructive error. They might well destroy themselves as a species all over again, just because they had had no chance to observe and learn from those who had come before them.
Every year, we are midwives to a new brood of legal hatchlings, law school graduates who must face the professional equivalent of nature red in tooth and claw: the bar examination. In the majority of cases, this is not an iterative, developmental experience. Most attorneys take the bar exam once and never have to apply its lessons again. But the lessons are real and valuable.
Some of those lessons are relatively easily compiled and organized, so that they can be provided/sold to future graduates through various forms of mass marketing: bar review courses that offer exhaustive compendia of necessary legal rules and concepts, or books that provide tips about studying, memorizing, essay writing, or time management. These can be quite helpful, and they provide a very large portion of the information that determines most applicant's behavior as they prepare for, and then take, the bar examination.
Still, for the most part, this information goes only to the development of the individual's fitness for the exam. Each individual applicant acquires certain needed components -- some knowledge, some judgment, some skills -- in the same way that an individual velociraptor can develop pointed teeth, sharp claws, and a muscular tail. And these components may serve that applicant well on the exam.
What about the social aspect? I see my students this summer gathering to watch lectures together. I hear about them supporting each other when they are confused or frustrated. I know they are pushing each other to stay on track in their study progress. They tell me about meeting up off campus or trading thoughts by phone or online. I know that, for my school at least, something is different this summer: the students are more communicative with me, they are completing more of their assigned work on time, and they are sharing more notes and resources with each other. This isn't something they've read in a book or took down in a lecture. It is the social structure of this class of legal hatchlings, developing in a healthy way.
It may only be an incremental change, increasing engagement or completion or quality by a few percentage points. But such changes, over time, is the definition of evolution. But it can only happen if we have some way of passing it along, some analogue of DNA that transmits the essence of this slightly modified social structure along to the next generation of hatchlings.
In a way, one aspect of our existence as Academic Success vectors is to carry this information, as best we can, from class to class, like plasmids shuttling genetic material from one bacterium to another. We can tell next year's graduates what this year's graduates did, ask them to trust us and to try the same strategies. To the extent they do trust us, and to the extent that we know and can articulate the changes to the social structure, this can be helpful.
We can also ask our alumni to transmit directly, inviting them to return to the classroom next year and to share their experiences with the following class. I did this twice this past spring semester, and my students seemed very responsive, asking lots of questions to help them suss out what to expect in the summer. Later this month, I plan to record some video of students engaged in studying, or willing to open up after a lecture or an exercise, so that my future students can get a better idea of how these students worked alongside each other.
It is great to seem some improvement in outcomes for our students, and often we can point to better development of individual skills as a contributor to this improvement. But just because changes to the social component of performance might be more difficult to isolate and package doesn't mean we should let them slip away from year to year, with just the hope that they might be recreated from scratch each time. Some information is transmitted via nucleotides; some information, via letters and numbers; but some can only be passed along, by explanation and example, from one society to its successor.
Monday, July 1, 2019
Don't fight [challenges]. Just find a new way to stand. - Oprah Winfrey
The bar exam is 30 days away. It may feel like you have been prepping for the bar exam all your life instead of six weeks. The 30-day mark is a great opportunity to acknowledge that not all bar takers enter bar study on the same footing. Students without strong academic records may be riddled with self-doubt about their ability to pass. For repeat takers, the mental and financial exhaustion of bar study can be all the more discouraging when experienced a second or third time. Past negative experiences are setbacks of which bar study brings daily reminders. These setbacks are short-term, but under the lens of today, they may seem to indelibly mark one’s chance for future success.
Whether your setback was a previous bar exam failure, or not finishing law school with the ranking or job opportunity that you hoped for, there is a comeback in your future. Maybe your setback is trying to juggle a full-time job and raise a family, while your peers bask in the seeming luxury of full-time bar study and an arsenal of supplemental study aids. Whatever the setback, use it as the gateway to an epic comeback.
If we track the lives of great actors, athletes, political leaders, and other celebrities, we'll find some major comeback that catapulted their career success. Public figures who have mastered the art of the comeback transform their reputations and eradicate public recall of scandals, felonies, fraud, and political defeat. After a comeback, onlookers almost never remember the setback, that is because the setback is never as good or as lasting as the comeback.
Instead of allowing your setback-circumstances to shape your attitude or approach to bar study, let your setback elevate you to greater heights. Pledge today to reform your thoughts. You are not struggling through bar study. You are making your comeback.
Tuesday, June 25, 2019
Now that my law school’s most recent graduates are well into their preparations for the bar examination, I have noticed some of them exhibiting a kind of exasperated relief when they come to talk with me about how their studies are going. They are still feeling a good deal of anxiety about the test, and they are starting to show signs of that deep weariness that comes from focusing intently on a huge task during most of their waking hours. But they are in good spirits, because at long last they are starting to make sense of the Contracts, Property, and Torts classes they took more than two years ago.
“You know,” one of them told me recently, “they are finally just telling me, ‘This is the rule, this is when you use it, this is how you use it.’ All the rules, so I don’t have to extract them or look them up anywhere! I wish that my professor had just done this in my 1L year. That class would have made so much more sense.”
It is a curious system that has evolved in this country: We spend 140-odd weeks getting our students to think creatively, abstractly, and expansively about the practice of law, then push them to spend 10 weeks efficiently and mechanically cramming the specific material required to test into that practice. Imagine if we prepared for other tests in the same way:
Driver’s License Road Test: Students spend three months watching The Road Warrior, Cannonball Run I & II, Smokey and the Bandit I, II, & III, and the entire The Fast and the Furious series. Along the way, they discuss questions like, “Should speed limits always be obeyed, even in a post-apocalyptic world?”, “How is it possible that Burt Reynolds’s license has never been revoked?”, and “Suppose Blackchassis, who is too fast, arrives at an intersection at exactly the same time as Whitechassis, who is too furious. Who has the right of way?” Three days before the scheduled road test, students are permitted for the first time to sit in the driver’s seat, where they discover the existence of turn signals. (Former professors explain that they had not had time to discuss turn signals in class, and in any case, students could look them up in the owner's manual if they ever needed to know about them.)
Test of English as a Foreign Language: Assigned reading includes Infinite Jest, Ulysses, House of Leaves, and Code of Federal Regulations, Title 26. Students are required to write a brief summary of each chapter read; it must be written in iambic pentameter. One week before the TOEFL, the class begins watching “Schoolhouse Rock” and somebody finally explains that a noun is a person, place, or thing.
Presidential Fitness Test: Middle-school students spend the first half of the semester exploring ways to build bulk, stamina, and flexibility in their left gastrocnemius. They learn that the gastrocnemius wasn’t even considered a muscle in early 17th-century England, but had achieved muscular status in both the U.K. and the U.S. by the mid-19th century. There is also extensive discussion about the current treatment of the gastrocnemius as a flexor in most states, but as an extensor in a substantial minority, mostly in the South and New England. In the second half of the semester, the teacher races through the superficial conditioning of most of the major muscle groups of the body, frequently referring back to the gastrocnemius as a model. In the last week before Christmas break, a new gym teacher takes the class outside to run wind sprints in the snow while carrying barbells. She never once mentions the word “gastrocnemius”.
Rorschach Inkblot Test: For ten weeks, the professor requires the students each night to spend three or four hours examining a seemingly random formation of ink on paper. Each day, students come to class asking the professor to explain what they had tried to understand the night before, but the professor only responds with, “Well, what do *you* think it means?” [Wait a minute . . .]
Okay, it's easy to tease our academy for its idiosyncratic way of inculcating an understanding of the law in its students. But most of those students who seem gratified to finally receive concrete and particularized lists of rules to memorize and apply are not wholly frustrated that they had not received them in the first place. They recognize that they would not have known what to do with such a bare-bones framework of legal rules if they had never gone through the mental boot camp of their 1L year, or if they had never explored as much of the range and depth of our jurisprudence as they did in their 2L and 3L years. There are a few students who get hung up on the rote memorization and mechanical application that can, honestly, appear to take up most of the work done in bar preparation. It is always helpful to remind those students that the bar examination is not merely a test of technical ability, like a driver's license test or the TOEFL. It is also a test of judgment, and that, hopefully, is what they have developed, and can tap into, from those three sometimes dizzying years of law school.
Monday, June 17, 2019
Mask: n. a covering for all or part of the face that protects, hides, or decorates the person wearing it. – Cambridge English Dictionary
It is a common practice for high-stakes gamblers, also called “sharks”, to use a trusted acquaintance when placing a bet to keep the identity of the shark gambler unknown and preserve the odds. By concealing one’s identity, an actor may control or influence audience perception. Academic Support professionals influence the perception and actions of the students we serve. ASP behind a mask allows us to fulfill our mission of student service and advancement. Behind a mask our message is not altered or concealed, only the messenger is.
My real-life experience behind the mask looks like this. For weeks, I preached and pushed a certain commercial tool to my bar takers. I negotiated a substantial discount for their purchase. I offered weekly incentives, provided demonstrations, and all but swore a blood oath that this tool would increase their chances of passing the bar. Crickets. I asked a recent bar taker to share her experience with the tool. She made one social media post that echoed verbatim my message. Within minutes of the post, I received multiple inquiries about the tool and sign-up confirmations.
Today’s law student does not respond to the pedagogy of the past. We may tell our students what is best for them academically and make recommendations for learning tools to support their development. And we may be right. But until our students “hear us” and find credible our advice and recommendations, our words fall hallow. We can strategically use the peer learning model and employ student tutors, fellows, and former students to promote our messages by sharing what has worked for them to positively influence the actions of current students.
Friday, June 14, 2019
The NCBE announced recently the Bar Examiner magazine has a new website with the most recently publication online. Here is the information from Tiffany Stronghart at the NCBE.
"I’m inviting you to visit the new website of the Bar Examiner, a quarterly magazine published by the National Conference of Bar Examiners providing comprehensive, authoritative information on current issues in bar admissions, legal education, and testing.
In our current issue, you’ll find
- statistics from the 2018 bar exam and 2018 bar admissions by jurisdiction;
- score distributions, examinee counts, and mean scaled scores for the MBE and the MPRE;
- a snapshot of the February 2019 MBE results; and
- a look behind the scenes at how MBE items are written, selected, and placed on test forms.
Visit our new site at www.thebarexaminer.org and subscribe to receive emails announcing new issues.
Feel free to share this message with your colleagues or others who may be interested in bar admissions!"
Tuesday, June 11, 2019
It is June 11. Recent law school graduates, separated from the exaltation of graduation by two weeks of breakneck lectures, rote memorization, and mystifying practice questions, are increasingly conscious of the brief (and increasingly briefer) interval between now and the administration of the bar examination. Less than 50 days to learn all this new material, to recollect even more old material, and to master the skills needed for three different testing modes! If your students are like mine, they are still displaying a lot of grit and energy, but are beginning, after experiencing the intensity of bar preparation, to wonder if they will be able to accomplish all they need to succeed in the end.
Seven weeks does not seem like enough time to accomplish much. Or does it? Consider:
It is June 11. The Second Continental Congress has been considering the Lee Resolution, a proposal that the American colonies should formally declare their independence from the British Empire. Unable to agree without the text of an actual declaration in hand, the Congress appoints the Committee of Five – Thomas Jefferson, Benjamin Franklin, John Adams, Roger Sherman, and Robert Livingston – to draft a statement that all the colonies might agree upon. The Committee of Five presents their draft document less than three weeks later. The document is considered by the Congress as a whole, after which some changes are made on July 3. On the morning of July 4, the Declaration of Independence, in its final form, is adopted by the Second Continental Congress.
It is June 12. A French army, led by Joan of Arc, wins its first offensive victory at the Battle of Jargeau. After relieving the siege of Orleans earlier that spring, Joan had persuaded much of the French army to join her in opposing the English force that had occupied France and had prevented the coronation of the rightful French king, Charles VII. After Jargeau, Joan leads this army as it takes town after town and turns the tide against the English. After the army takes the city of Reims, the coronation of Charles VII takes place on July 17.
It is June 13. Having received from Daniel Ellsberg copies of the top-secret Vietnam Study Task Force – a collection of original government documents supplemented with historical analysis created by the Department of Defense as a history of the Vietnam War – the New York Times begins publishing excerpts that revealed details of U.S. military involvement in Vietnam that were not previously known publicly. These excerpts soon become known as "The Pentagon Papers." The Nixon Administration, hoping to discourage future leaks of classified information, seeks an injunction against the Times to prevent further publication. This action tests the limits of the First Amendment's guarantee of freedom of the press as bounded by claims of national security concerns, and it moves apace all the way to the Supreme Court. On June 30, the Court, in a 6-3 decision, upholds the right of the New York Times to publish The Pentagon Papers.
This is a great week to begin to change the world. Remind your students that, this summer, they have the time to change theirs.
Monday, June 10, 2019
Take a rest. A field that has rested yields beautiful crops. – Ovid
In a profession where, by definition, we support and give so much to our students we face the risk of having not enough left to nourish ourselves. Those of us who, in addition to teaching and academic support roles, play a role in professional or supplemental bar prep programs see no end to the academic year. The graduation procession precedes exam grading and final grade submission, only to be followed immediately by a new order of coaching, providing practice essay feedback, and guiding students through the stress of bar study. We are not immune to the stressors that we try to guide our students through. Our minds echo with resounding worry about whether our students have done enough, whether we’ve helped enough, and whether any one of our students will pass the bar. And while our student-graduates wait in angst for months to learn the results of the summer exam, those in ASP quickly progress to the next peak in the 12-month cycle with very few lulls.
The cycle is seemingly endless. After the arduous 10-week period of bar prep, we go almost immediately into orientation training, then to fall semester teaching, then again to exam grading followed by a feverish period of winter bar prep. Yet in this relentless cycle we must find time to rest and replenish ourselves. All the more so for those of us with scholarship or other additional responsibilities. Those in the throes of summer bar prep should remember that we alone cannot shoulder the weight of the bar results for our schools or for any one student. We must guiltlessly take the time off that is available to us with a sense of enjoyment and entitlement. By taking well-needed time for rest and restoration, we model balance to our students. When summer responsibilities do not allow for a full vacation, we can fit smaller periods of rest into our week by taking a three-day weekend, dedicating one day per week to work from home (if school policy permits), leaving early on a Friday or starting late on a Monday during the summers. We too are at risk of burnout and savoring a simple pleasure, like a long walk or a short drive, a call to a non-lawyer friend or a 15-minute sanity break, can rest our minds and lift our spirits.
Tuesday, June 4, 2019
Yesterday, the quiz show Jeopardy! enjoyed its highest ratings in more than 14 years, <spoiler> on the day that 32-game winner James Holzhauer lost to librarian Emma Boettcher and fell just short of breaking the all-time record for most money won during regular play. (Sadly, James walked away with only $2,464,216.) My friends in the trivia community have been watching James's exploits with various mixtures of admiration, envy, bemusement, and exasperation. The latter two emotions have been prompted not by James himself, but by the sense-making reactions of casual viewers and the media to his success, and then to his defeat.
James racked up an intimidating number of high-scoring games -- including all of the top-ten highest-scoring games of all time -- and he sometimes won by six-figure margins. To a lot of pundits, these overwhelming victories suggested a new and singular player: either someone with unmatched, superhuman genius, or someone who had come up with a novel strategy that had "broken" the game forever. From the perspective of a lot of fans at home, this made sense. How else could someone achieve such never-before-seen results without some sort of mystical secret ingredient?
But to a coterie of former players and dedicated aficionados, there was nothing mysterious or unduplicable about James's style of play. He is a tremendous player, to be sure, certainly among the best. But the skills he brought to the game are pretty much the same skills other great players have exhibited before. He knows a lot of trivia; he is very adept at using the signaling device to snatch the opportunity to answer first; he understands the optimal strategies for choosing clues and making bets. His historically high scores are due mainly to a gutsy willingness to risk losing all or most of his pot by making big bets that, when successful, have left him with insurmountable leads. In the past, even the strongest players played more conservatively, hedging their bets so a wrong answer wouldn't take them out of the running. But James is a professional gambler, and he decided to maximize his return by maximizing his risk. This was a choice, not an aptitude, and anyone playing against him would have the capacity to make the same choice.
In fact, in yesterday's game, Emma did just that, making her own big bets to take a lead that James could not overcome. When the game hinged on one final question -- one that all three contestants would have the chance to answer, and on which each would have to make a wager -- Emma, in the lead, bet most of her accumulated winnings. James, close behind in second place, did something the audience had never seen him do before -- he bet only a tiny fraction of his pot, not even enough to catch up to Emma's pre-final score. Across the country, Twitterers and newspaper columnists alike responded incredulously. He wasn't even trying! they wrote. He's throwing the game on purpose! Commentators tried to make sense of the motivation behind such uncharacteristically tame behavior as James's desire to go home to be with his young daughter or his unwillingness to destroy the previous all-time record, out of respect to the record-holder, Ken Jennings.
But, again, to those who have played the game, there was nothing inconsistent or irrational about James's small bet. If you're in second place going into the final question, and you have more than half of the leader's score, then the leader is virtually always going to bet enough so that, if she answers correctly, her score will be more than twice your pre-final score. Even if you bet everything you have from second place, if the leader gets the final question right, you cannot catch her. There's nothing you can do to win if the leader gets the final question right -- so you need to think about how to maximize your chances of winning if she gets it wrong. And if she gets it wrong, she loses the amount that she bet -- often, an amount that is big enough to drop her score below your pre-final score. In such a case, if you want to make sure that you will win if the leader answers incorrectly -- whether or not you answer correctly yourself -- then you want to make a bet small enough to stay ahead of the leader's final score if she gets the last question wrong. And that is why James bet small at the end. He was still playing to win.
I'm saying all of this not to minimize the accomplishments of a truly great Jeopardy! player, and not even primarily to teach people sound game strategies. What I'm hoping I've done is illustrate how the natural human inclination towards sense-making can easily lead to misjudgments and misinterpretations, especially when people know something well enough for it to seem familiar, but not truly intimately. Sense-making is the act of coming up with plausible rationalizations for why things are the way they are. It is not necessarily a bad tendency -- it is, after all, how scientific inquiry begins. But "plausible rationalizations", while comforting, are often inaccurate, and relying on them uncritically can be dangerous.
Our students and recent graduates preparing for the bar exam are just now in that space where they've seen enough of the structure and content of the bar exam for them to seem familiar, but not enough of them to really intimately how to do well on it. As they take practice tests and observe their fellow preparers and hear stories about people who performed well or poorly in the past, they might run into some of the same issues with sense-making that I described in everyday Jeopardy! viewers:
- Misjudging the ratio of cause to effect -- People are naturally impressed by outcomes, and when causes are not well understood, there is sometimes an assumption that big differences in outcomes can only be explained by big differences in causes. Many viewers saw James's high scores, nearly twice as high as previous records, and assumed that he was twice as smart or twice as quick as anyone who had played before him. In reality, he was probably only slightly more skillful than most of the folks he played against, but the nature of the game is such that, once a player gains a small advantage in scoring, he can exploit and multiply that advantage enormously. In a similar way, bar studiers who see big differences between themselves and their classmates, or who see only small improvements in their own performance over time, might not be familiar enough with the task of bar preparation to recognize the true magnitude of the causes of those differences. They might assume that small improvements (or plateaus) indicate that they have not learned much, when in fact they've made a great deal of progress and are nearing a tipping point of improvement. They might assume that they could never get scores as high as some classmates', because they are just not smart enough or don't have time to study as much as they'd need to, when in fact in absolute terms they might only need to improve, say, recall by ten percent. (Or the mistake could be in the other direction -- for example, assuming that adding fifteen minutes of flash card study every day will double their MBE score.) Over time and with practice and feedback, they should get better at making these judgments, but this early in the summer, we should be generous with lending some perspective to their rationalizations.
- Tendency to search for a single overarching cause -- Systems are complicated, and humans like simplicity. There is something comforting and manageable about identifying one thing -- like a super big brain or a revolutionary game strategy -- that totally explains how to achieve a particular outcome. Thus, we see graduates who insist that the key to doing well on the bar is religiously answering a certain number of MBE questions each night, or memorizing the contents of a particular outline (especially one that someone who passed the bar before them has endorsed). The truth is that the bar exam is multimodal and designed to test multiple skills and multiple dimensions of understanding. There is no single overarching cause of success on the bar, no matter how comforting that would be, and helping students to recognize early on the rich multiple approaches to success will help them proceed more realistically towards their goals.
- Tendency to attribute unexpected observations to new causes -- At a primal level, there is something unsettling about the unexpected, and one sense-making reflex is to assume that anything we haven't seen before must be a manifestation of some new element. James's unexpectedly small bet was completely explainable within the schema he used to make his earlier large bets, as applied to a new set of conditions, but viewers unfamiliar with that schema assumed that the small bet indicated a complete change in goals and strategies. In the same way, a student who sees an unexpected drop in practice test scores one week might tell themselves that it's because the testing room has changed or the weather is hotter or the lecturer that week is not as good. But the reality might simply be that the method of study the student had been using for the previous few weeks, which was fine when they had only covered three or four subjects, is now just not able to help the student handle the burden of six or seven subject's worth of materials.
Of course, it is sometimes true that new observations are attributable to new causes. The reason sense-making can be dangerous for students is not because every plausible rationalization is wrong, but because, without support, students may not be able to tell the difference between sound and unsound rationalizations. The students most likely to succeed on the bar, just like the contestants most likely to win on a game show, are those who learn enough before the big day about the challenge they face to be able to actually make good sense of what they are doing.