Thursday, January 13, 2022

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).


January 13, 2022 in Bar Exam Preparation, Learning Styles, Teaching Tips | Permalink | Comments (0)

Monday, November 1, 2021

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)

November 1, 2021 in Bar Exam Issues, Bar Exam Preparation, Bar Exams, Diversity Issues | Permalink | Comments (0)

Monday, October 25, 2021


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)




October 25, 2021 in Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Professionalism | Permalink | Comments (0)

Sunday, October 17, 2021

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)



  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.”

October 17, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Tuesday, September 7, 2021

Academic and Bar Support Scholarship Spotlight

A plethora of recent scholarship to report:

1.  B. Templin (Thomas Jefferson), Integrating Spaced Repetition and Required Metacognitive Self-Assessment in a Contracts Course (2021).

From the abstract:

This article provides an example for doctrinal law professors to integrate metacognitive exercises into their courses in order to increase student retention and understanding of the material as well as improve exam test-taking skills. Teaching metacognition is traditionally the domain of law school ASP departments. However, when ASP methods are supplemented with required exercises in a doctrinal course, student performance can improve measurably.

2.  S. George (Suffolk Law), The Law Student's Guide to Doing Well and Being Well (Carolina Academic Press, 2021). 

From the abstract:

The ABA and most state bar associations have identified a wellness crisis in the legal profession, and called for educating students on how to better cope with the challenges of law school and practice. At the same time, students must learn how to maximize their brain health so that they perform well in law school and on behalf of their clients in practice. The same way musicians would tune their instruments, or chefs would sharpen their knives, law students must sharpen their minds. This book aims to help students “do well” in their ability to learn, and “be well” in the process, by exploring the deep connection between brain health and wellness.

3.  A. Soled (Rutgers) & B. Hoffman (Rutgers), Building Bridges: How Law Schools Can Better Prepare Students from Historically Underserved Communities to Excel in Law School, 69 J. Legal Educ. 268 (2020).

From the introduction:

This article discusses the needs of law students whose circumstances—including but not limited to economic status, race, nationality, sexual orientation, gender identity, and/or educational background—disadvantage them in relation to their classmates whose privileged environment better prepared them for law school. This article first discusses factors that affect academic performance at law school. Second, it illustrates prelaw school and law school programs that target the needs of students from historically underserved communities. Finally, this article proposes ways law school faculty and administration can help these students succeed in law school and in their careers.

4.  K. Testy (Washington), Advancing an Evidence-Based Approach to Improving Legal Education, 69 J. Legal Educ. 561 (2020). 

From the article:

Student-centeredness should not be a remarkable idea for legal education.
Yet, some educators resist student-centeredness on the grounds that such an
approach sounds too much like “the customer is always king.” Under this
line of thought, faculty members instead see their role as the expert with the
duty of deciding what the student needs. As one of my faculty colleagues once
explained to me, “Dean, you pay me to mold them, not to listen to them.”

In my experience, however, students usually do know what they need; we
can learn a great deal by listening

(Louis Schulze, FIU Law)

September 7, 2021 in Bar Exam Issues, Bar Exam Preparation, Diversity Issues, Publishing | Permalink | Comments (0)

Tuesday, August 10, 2021

The Mistaken Impression that Prior Exams are for Review and Not Practice

Over the years, I have noticed that many legal educators and students have an imperfect understanding of the utility of using prior exams for practice.  This misunderstanding usually holds that the purpose of such materials is for students to review the exams simply to see what topics professors test and methods with which they do so.  In turn, faculty become leery of providing such materials, as doing so might create an unwarranted expectation on students’ part that their exam will test the same topics and use the same methods.

This impression is problematic.  Both students and faculty are squandering the opportunity for students to use materials that will make them better learners, improve their performance in law school and the bar exam, and increase their knowledge and skills (both in classes and on the bar exam).

An important recent (methodologically sophisticated) study supports this claim. In Understanding the Metacognitive “Space” and its Implications for Law Students’ Learning, Professors Jennifer Gundlach and Jessica Santagelo found statistically significant evidence that:  “Students who reported using active strategies at the end of the semester were more likely to succeed in the class … relative to students who never used active strategies.”

Plenty of studies in other fields express similar results.

Faculty should better understand the use of prior exams and other materials that would allow students to practice rather than re-read over and over again.  Although many law professors used re-reading and re-reviewing prior exams in their studies, their success quite possibly could have been despite and not because of those flawed methods.  Faculty tend to have had an elite education, elite aptitude, and elite socio-economic condition opportunities for academic success.  They thus had a great degree of wiggle-room in terms of the efficacy of their learning methods

Many of our students are not so lucky.  If we admit students with fewer socio-economic opportunities and with non-elite academic credentials, we should not erect further obstacles to their success by assuming that the methods we used in very different circumstances will be effective for them. 

Especially given the recent findings quoted above, we should not rely on the anecdote fallacy (that because one person had success with a method all will have such success) and the post hoc ergo propter hoc fallacy (that because certain study methods preceded success, those methods must have caused that success).  Instead, we should rely on the empirical evidence that shows that active learning, including taking practice exams, fosters success more optimally.

(Louis Schulze, FIU Law)



August 10, 2021 in Bar Exam Preparation, Exams - Studying, Exams - Theory, Study Tips - General | Permalink | Comments (1)

Wednesday, July 14, 2021

What to do with only 2 weeks left......

I write about this every bar exam administration, because I always get the same question -“What should I do with the remaining 13 days before the Bar Exam?” so I thought I’d share my advice with anyone else that may be wondering.

First, 13 days 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 the 22nd or so, 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 want 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, and until the day of the exam, take 5-10 minute chunks to work on memory. See this post for more on memory:

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 (if you are going to a 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)

July 14, 2021 in Bar Exam Preparation, Bar Exams | Permalink | Comments (0)

Thursday, July 8, 2021


Right now, many of our bar takers are feeling overwhelmed and inadequate, despite many weeks of laboring studies, as to whether they have what it really takes to successfully pass their bar exams later this month. 

In my own life, self-chatter takes up so much of my thought-time and mental efforts.  

Self-doubt, lack of confidence, deep rooted feelings of not fitting in, of not having, the "right stuff," so to speak.  

In short, we start to wonder if we really do belong, if we really do measure up, if we somehow didn't just happen to make it through law school but someday, we will be found out to be a fraud, to be faking it all along.

For our bar takers, let me say at the outset that, if you feel gripped by worries and fear, you are not alone, at all.  

Most of us, when we took our bar exams, were worried out of our minds.

That's because - to be frank - taking bar exams is really not a natural part of life (and really has no place in the practice of law because it's totally unlike the practice of law with its over-reliance on recall and quick identification and resolution of issues).  Who practices law like that? So, it's okay to be concerned, stressed, and worried.

But let me also say that the next few weeks, while important, don't have to be lived out perfectly, as perfectly studious and perfectly performed. Rather, as you prepare for your bar exam later this month, focus on just two tasks.  

First, work through lots of essays and multiple-choice problems with the goal of discovering and learning and growing.  That means, when you miss things, don't give up.  Rather, use those opportunities as springboards to figure out how to get that sort of problem correct next time.

Second, spend time rehearing your lines, like an actor on stage, walking through, talking out, and practicing your study tools, issue spotters, and big picture problem-solving rules.  Focus on the major rules.  Forget the minor details.  People pass based on majoring on the major rules not on those pesky minor details.

But often times we, as human beings, think we have to know it all to pass the bar exam.  We don't.  You don't.  Rather, be confident in taking these next few weeks as opportunities to experience more practice problems and to practice rehearing the rules.  That's it.  Just two tasks.

That's still a lot - and that's were perspective comes in.  I'm in my sixties.  Just two years ago, I fractured my back in five places in a car accident, leaving me unable to walk without assistance and without a walker for a number of weeks and into several months.  In fact, as I took my first steps, I recall thinking that I would never ever again be able to hike, or walk, or bike.  That's because I was so focused on what I couldn't do, at present.  At best, with lots of help from both sides and a walker to balance myself too, I could only muster a handful of steps.  And painful steps to boot.

Last weekend, my wife and I took two days to trek about a little over thirty miles in the local mountains.  In other words, although I wouldn't have believed it two years ago, I'm back on the trail.  At the time, two years ago, I never saw any progress, or at least not much at all.  

Bar prep is a bit like that.  It just doesn't seem like we are progressing much at all, especially because we keep on missing so many issues and questions.  But, in the last week, things come together, exponentially so to speak, because we've planted and watered so many seeds of learning and discovering throughout this summer that they all start to bloom, like a beautiful flower bed, all at once.  

As we hiked through the mountains this week, headed uphill to a 11,700 foot plateau, I realized that I had actually grown quite a bit, as a hiker, over the past two years, so much so that I actually passed a few people, all much younger that I.  Of course, I was going uphill.  The hikers I passed were going downhill.  But I still take good cheer that I'm hiking on my own trail.  

That's all we ask of you and all that you should ask of yourself in the course of these next few weeks of bar prep.  Be yourself, walk at your own pace, keep going uphill, step by step.  But just like I do often on the trail, feel free to take lots of breaks throughout the day.  Those breaks help you see how far you have come uphill and how much you're progressed in your learning.  So trust yourself.   You can do this, one step at a time.  (Scott Johns).


July 8, 2021 in Advice, Bar Exam Preparation | Permalink | Comments (0)

Sunday, July 4, 2021

July Bar Prep: Keep Shooting Free Throws

July always makes me think of shooting free throws in my backyard. I used to practice continuously, always imagining that moment where I would have an opportunity to shine, picturing no time left on the clock and the game coming down to my performance. If I made two consecutive shots, the crowd in my imagination would cheer, fans would rush the court, and I would be hoisted off the court on the shoulders of Michael Jordan and Scottie Pippen to celebrate winning the NBA Championship (I was a huge Chicago Bulls fan).

However, and this will not surprise anyone who saw me shoot free throws in my early days, I did not always make the shot. Sometimes, despite my intention to win multiple imaginary championship rings, I would hear a clank and the ball would bounce off of the rim for me to chase down. It seemed that I had let the entire arena, all of the television audience, and my beloved Chicago Bulls team down…

BUT WAIT! Someone on the other team had stepped into the lane, and I was miraculously granted another shot (literally) to win the game. My past miss no longer mattered, but instead I now had the opportunity to shine and win again. In fact, no matter how many times I missed, someone would always step in the lane or get hit with a technical foul, and I would get another chance to win the game. During this process, I would always think about the shot I had made or missed, and whether I was balanced correctly, whether my elbow was aligned under the ball, whether my eyes were focused in the right place on the rim, and whether I followed-through correctly (B.E.E.F. for you basketball enthusiasts). 

Eventually, because I gave myself opportunities to be successful in practice, I built both my skill and confidence. Because I didn’t let every miss defeat and discourage me, I was able to diligently work to improve through repetition and positive self-talk. By reviewing constantly what I was doing when I made a shot and when I missed a shot, I got to the point where I was willing to be on that free throw line in any real-life situation, because I knew that every make and miss had prepared me to be successful when it actually counted.

July is a great time to remind our students to treat themselves with kindness and to approach bar preparation the way I used to practice free throws. They need to understand that in order to be successful on the bar exam, you do not have to be perfect in practice, but rather you just have to keep practicing and making adjustments. It is not about getting every question right now, but rather it is about learning and analyzing what you are doing to continuously make adjustments and build towards your eventual success. Students need to be reminded that any one day will neither make them successful nor limit their chances of success, but rather it is the daily effort, reviewing, learning, analyzing, and intellectual growth that will ultimately lead them to win the proverbial championship of being successful on the bar exam.

Encourage your students to keep shooting those practice free throws so they will be ready for game day, and remind them of the famous words of Winston Churchill, “Success is not final, failure is not fatal: it is the courage to continue that counts.” Remind them to continue working each day to realize success.

(Scot Goins - Guest Blogger)

July 4, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Thursday, June 17, 2021

Purposeful Connections

According to a recent article, research suggests that changing the way curriculum is presented and taught can improve retention of underrepresented minorities in STEM programs. Berman, Jillian, How to Get More Women Into Technology: A Number of Programs Have Tried to Steer Women Into Step--Here's What Works, WSJ (Jun 1, 2021)

The article focused on a number of programs within the STEM fields in trying to increase representation and graduation in STEM majors of women and underrepresented minorities.  The overall trends are not promising.  For example, the percentage of women earning computer science degrees has decreased in the 20 year period from 1998 to 2018, and the percentage of Black women earning computer science or engineering degreee has likewise decreased during the same time period 1998 to 2018.  Nevertheless, one comment in particular caught my eye and it has nothing to do with programs but with a person - a person making a difference.

In the article, Dr. Cara Gomally laments that courses, particularly introductory biology courses, are often taught as a "march through content with no connection of why you should care."  Id.  Sounds a bit like some introductory law school courses to me.  

That lack of connection, of a nexus to purpose, the article suggests, leaves some people behind, particularly in the STEM fields.  To remedy the deficit, Dr. Gomally is designing curriculum to focus not just on content but on the broader connections and uses one can make with the content, such as exploring questions with students as to how antidepressants work or whether students should participate in genetic testing.  Id.  

Those sorts of "why-questions" are filled with life; they create space for people to see how what they are learning can make an impact for them and for their communities and the world at large.  It's in those opportunities in exploring the why of what we are learning that we start to see ourselves, as I understand the article, as valuable participants in the enterprise of, in this case, science.  Id.

This summer, we are working with a number of recent law school graduates preparing for next month's bar exams who, for the most part, will not practice constitutional litigation or contract law or the law of future interests or defensible fees.  Consequently, much of bar prep seems like rote memory and regurgitation, without making connections or exploring meanings to something greater than the mere content and skills in which they are tested by bar examiners.  

To the extent that our graduates fail to make such connections with what they are learning to their future lives as legal practitioners, I think we are doing a disservice to them.  Because many of our graduates want to practice immigration law, I like to explore connections to the word of immigration law within the midst of the bar exam content and skills.  Let me share a few examples.  

First, take the definition of a refugee - one who has a well-founded fear of persecution based on a protected characteristic with the government unable or unwilling to protect them.  

That sounds a lot like a type of tort, perhaps both an intention tort and also a bit like negligence with the state unable or unwilling to protect the person fleeing persecution.

Second, take an article this week from the southern border about the U.S. government's decision to ask non-governmental organizations (NGO's) to designate some asylum applicants as especially vulnerable and therefore eligible to enter the U.S. to proceed with their asylum claims while leaving others behind.

That raises at least two constitutional issues, both of which are tested by bar examiners. First, there's a question as to whether vulnerability determinations by the NGO's constitute state action.  Second, there's a question as to whether vulnerability classifications used by individual NGO's violate the equal protection principle.  That's just getting started.  What about procedural due process and substantive due process considerations?  

Recently, I talked with a graduate, heading into criminal defense work as a public defender, who shared that they were not doing very well on contracts multiple-choice questions.  As to why, the content just didn't excite the person; it seemed irrelevant - totally unconnected - to their future practice as criminal defense counsel.  

In reflection, I asked whether there might be any connections b between contracts and the person's future work as a public defender.  It's just a hunch, we surmised, but we suspected that guilty pleas are contracts, which would ostensibly be governed by common law contract principles, such that if  a government withheld exculpatory evidence, that would not only be a constitutional violation but also a contract defense of unconscionability.  

To cut to the chase, the graduate said that in some ways contract law might actually reinforce the person's future clients' constitutional protections.  

In short, there can sometimes be more to the content than just mere rote learning.  Perhaps one day, somehow and someway, something from bar prep will lead to a new way of looking at how the law applies, really applies, to best protect rights and freedoms. And, in the course of exploring those possible connections with our students and graduates today, we might just be able to help them see that they belong in the legal field, that their experiences count, that they have more than what it takes to be attorneys. (Scott Johns).









June 17, 2021 in Advice, Bar Exam Preparation, Current Affairs, Diversity Issues, Encouragement & Inspiration | Permalink | Comments (0)

Sunday, June 13, 2021

Gradual Improvement

This is the time in bar prep when everyone emails me that their MBE scores are too low, and they aren't seeing enough improvement.  I completely understand the feeling.  In my early ASP days, I tried to create small gradual goals for all my students after a diagnostic test.  The problem was no one followed the gradual improvement track because that isn't how improvement works.  I love the image posted below.  I saw it on facebook a while ago and found it again in google images.

Decoding GEnius : An HR Sojourn At GE Digital - InsideIIM

Don't fret if you aren't seeing the improvement you want.  Questions get harder as you go.  Bar prep companies test different subtopics, so you probably did learn something from the last set of questions.  The next set was on something different.  Improvement happens in the end.  You may not see it fast enough, but you are learning.  Keep up the good work.

(Steven Foster)

June 13, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Sunday, May 30, 2021

Keeping Perspective

Tiger Woods won over 25% of tournaments he entered in his prime.  No one in his era came even close.  Michael Phelps is the most decorated Olympian.  Tom Brady won the most Super Bowl titles for a quarterback.  As a society, we celebrate the best/most/greatest.  Society goes even further to denigrate those who aren't the best.  The last player picked in the NFL draft is called Mr. Irrelevant.  A controversy erupted this week about a former basketball player who was picked #1 in the draft and then never played well.  Those players are still elite athletes making it to the highest stage in their profession.  Unfortunately, a multi-billion dollar industry exists that basically talks about relative strengths of elite athletes.  Elite becomes the standard that no one can live up to.

The norm permeates through to everyone, including our kids.  I was talking to my son a couple weeks ago about golfers.  Like many kids his age, anything less than perfection and winning is unacceptable.  I asked him whether the 2nd place PGA Tour golfer was good, and he said yes.  That is obvious because he is second.  I then asked him about a few middle of the pack PGA Tour golfers.  He said they weren't good.  I was shocked.  The players I named are top 100 golfers in the world.  They make a few million dollars a year and play a game for a living better than 99% of the population.  In his eyes, they aren't #1, so they aren't good.  

The elite perspective is impossible to live up to, and we all set that as the standard.  There will always be someone better.  Someone who makes us feel not as good about our own performance.  I don't want anyone to take that attitude into bar prep.  I hear it every summer.  Someone graduated higher in the class.  Someone completed more practice questions today.  Someone's simulated MBE score is higher.  Someone did something better, and thus, I am on the wrong track. 

Continued comparisons are crippling.  Don't let it stop you from achieving your goals.  Someone may have done more, but that doesn't mean you can't also pass the bar.  You can put the work in to succeed.  Don't compare yourself to the Tiger Woods of law school.  No one will get to that standard.  2nd, 3rd, and even 103rd still have J.D.s with the opportunity to become a practicing attorney.  Focus on the work you put in, and you will walk into the bar exam prepared.  Worry about what you can control, and you will be in a great position to succeed.

Everyone compares our own performance to others.  The comparison steals the joy of our accomplishments.  Stop the comparison and enjoy your opportunity to become an attorney.

(Steven Foster)

May 30, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Sunday, May 16, 2021

Finish Your Marathon this Summer

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 400-500 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 3 semesters of 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)

May 16, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Thursday, May 13, 2021

Is Bar Prep Too Slick?

I recently had lunch with one of my colleagues from across town - Professor Denise DeForest at the University of Colorado.  

As we talked through our thoughts on learning, legal education, and bar prep, Prof. DeForest explained something to the effect that she teaches students to expect the unexpected in bar prep, that nothing will every quite feel right, at least not until the very end, because bar prep is just difficult preparation indeed. In Prof. DeForest's words, bar prep is "going from one disaster to another disaster."  That's because bar prep is about learning to solve problems, which means making lots of mistakes and wrong turns along the way.

Sometimes I wonder if bar prep can be too slick, with too many "learning" tools and pithy lines that serve to blur one of the most blunt facts of life, that learning involves challenging ourselves, finding out what we know and what we don't know, and then working on ways to learn what we still have to learn.  In short, it's hard work.  Not impossible work.  But difficult work.

As Prof. Melissa Hale at Loyola University Chicago reminds us, bar prep is  "a taxing full time job." Hale, M., How Do I Study for the Bar Exam? (May 12, 2021).   But, as Prof. Hale also points out, that means treating bar prep as a job, nothing more and nothing less.  Id.  Just like work, take breaks.  Id. Even take mini-escapes because they can rejuvenate your mind and uplift your spirit.  In short, "it's a marathon - train accordingly." Id.  

For our graduates soon to be embarking on bar prep, this is a time to remind them that they can do it, that they can succeed, and that success hinges - not so much on feeling well-prepared - but rather in facing the challenges of learning head on, with adventurous curiosity, recognizing that mistakes are the valuable stepping stones to success, real success, not just on the bar exam, but throughout life, too. (Scott Johns).




May 13, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Wednesday, May 12, 2021

How do I Study For the Bar Exam?

This is the time of year where I see this question popping up all over; from my students, on twitter, probably elsewhere.  And the answer is complicated, mostly because everyone is a bit different. So, with that being said, I can give you a few tried and true things that work.

How much time should I put in?

Conventional wisdom, as well as research and data, shows that those that pass spend at LEAST 500 hours on bar review. It also shows that the more you complete of your commercial prep course, the better.

However, students are not statistics. People are not statistics. So, there is going to be variation and exceptions.

I tell my students to spend 10 weeks (Mid May-July) treating bar prep like a full time job. This means 50 hour or so a week, so a taxing full time job. However, this doesn't mean you aren't eating or sleeping, or doing anything else you enjoy. Think of studying like 8-5 days, with some weekend work. that gives you evenings free - go to the gym, eat good dinners, talk to your friends. I binged Buffy the Vampire Slayer AND Angel. It was worth it.

That being said, not all of my students can do this. Some have families, and it's generally frowned upon if you ignore your kids all day for 10 weeks, or so I've been told. I don't know, my cats enjoy being ignored. Some of my students have full time jobs already, meaning an additional 50 hours a week is just not possible. Some of my students have both, or other things known as "life" that makes a 50 hour week of studying impossible. So, adapt. I tell my students with full time jobs to start early - as early as Feb or March. Or, you just learn to study more efficiently, and do the best you can. 

But, what about life and breaks?

So, having said that you should aim for a "full work day", know that your brain is more likely to retain information if you take breaks. So, your day might not be 8-5, it might be 8-10, and 11-1, and 2-4, and 5-7 and so forth. That's ok, and it's actually encouraged. Give your brain a break to let the information sink in.

Also, if you are overtired, or frustrated, or feeling ill - take a break! If you are frustrated or anxious, you won't retain information, and that will make you MORE frustrated and anxious. Also, if you are ill or tired, the same thing will happen. I get migraine, and it has taken me YEAR to learn that no matter what, I can't just "push through" a migraine, even if I somehow manage to do so physically, the work I do while "pushing through" will not be stellar. Plus, it takes that much longer for my migraine to go away. 

If you are frustrated with one topic, move on to another. Switching it up can be great. 

The point is - give yourself breaks, and don't work to the point of frustration. 

What about time for myself?

Yea, you need that. You need to take care of your mental health. This means different things to different people, so I can't tell you exactly what will work. I just know that, as stated above, the more anxious, tired, or frustrated you are - your brain stops learning.

So continue to meditate, see your friends (safely, pandemic and all), go for runs or go to the gym, binge a vampire related show from the late 90s, paint, dance, play video games, or whatever it is that's going to keep you sane.


Stay hydrated and well fed  too. I'm serious on that one. And finally, remember it's a marathon - train accordingly. It's a well used cliche for a reason!

(Melissa Hale)

May 12, 2021 in Advice, Bar Exam Issues, Bar Exam Preparation | Permalink | Comments (0)

Wednesday, May 5, 2021

NY ASP Workshop Reminder

As a reminder, New York Law School will be hosting a virtual NY Area Academic Support Workshop on Friday, May 7 from 1:00 p.m. to 3:30 p.m. This year’s workshop will take the format of facilitated discussion so that we can spend more time speaking with each other. Please see the workshop agenda immediately below and note that we’re seeking panelists to offer reflections during the plenary session. If you’re interested in being a panelist, please email Paulina Davis at

The Zoom details for the meeting follow the Workshop agenda, and we’ll resend the Zoom link on this list serv the morning of the Workshop.  Let Paulina know if you need the information.


NY Area Academic Support Workshop Agenda

Plenary Session: Empowering Students: How do we help students identify their needs and maximize use of supports? In a pre- and post-Covid world, students who need support are often reluctant to seek assistance. Sometimes students lack the awareness to identify their needs, and this prevents them from asking for help. But there are other barriers that keep students from obtaining or using appropriate support. During this plenary session, we’ll seek to explore the following questions together: 

  • Why do we think students struggle to identify their academic and non-academic needs? 
  • What barriers exist that may prevent students from seeking or utilizing support? 
  • What supports will we need this fall or going forward to ensure that students have the tools they need to succeed, particularly when struggling mentally or physically in a post-Covid world? 

We’re seeking panelists to reflect on how student services offices see these issues, how these issues manifest in the first year versus upper years, and how bar takers struggle to identify their needs and use supports. Panelists need not have answers; rather, we’d like panelists to reflect on how these and other related questions have shown up in their work recently.  

Breakout Sessions #1 

Academic Success: Leading and Influencing: How do academic success educators lead in implementing the educational mission of their law schools?

In this group, participants will engage in a facilitated discussion about their leadership roles within their institutions and the opportunities that we have or could have to influence the decisions on educational mission within our institutions.  

Bar Success: Working with Boards of Law Examiners or Not: How do we currently work with our respective local boards of law examiners? How could we build a more collaborative relationship with those boards moving forward?

There is a national movement and opportunity to re-examine current bar exam and admissions policies and practices. No matter what direction admission to the bar moves in going forward, each jurisdiction’s board of law examiners will likely continue to play gatekeeper to the profession by determining procedural processes for admission. In this session, participants will discuss ways they currently work with—or alongside—their local board of bar examiners and how we might be able to do that better going forward in a post-Covid—perhaps even a post in-person bar exam—world.   

Breakout Sessions #2 

Academic Success: Building a Growth Mindset: How do we help students develop a growth mindset no matter the level of their academic performance?

While there is some debate over the magnitude of the impact that growth mindset strategies have on a student’s academic performance, students who have a growth mindset are more likely to believe in their ability to improve, and, therefore, more likely to commit to doing the work that will develop their skills and abilities. In this session, Paulina Davis and Megan Montcalm from New York Law School will present briefly on their new program for students on probation and the ways that it has been designed to help those students build a growth mindset. Then, participants will have a facilitated discussion on how we currently foster growth mindset in our programs and the ways that the approach to building a growth mindset may look the same or different for students at the bottom, middle, and top of the class. 

Bar Success: Setting Realistic Expectations for Support for Bar Takers: How do we straddle the line between supporting bar takers and empowering them to work well independently?

Over the years, law schools have increasingly built out supports for bar takers ranging from weekly workshops to individual coaching sessions and grading of practice essays. Yet, we all know that success on the bar exam is largely driven by the independent work that graduates must do on their own. In this session, participants will discuss ways to set realistic expectations for bar takers on the support they’ll receive from bar success educators and the work that they’ll need to do on their own. How do we guide our bar takers without holding their hands too much throughout the intensive bar exam preparation cycle? 

May 5, 2021 in Bar Exam Preparation | Permalink | Comments (0)

Wednesday, April 21, 2021

So You Failed The Bar.....

So You Failed the Bar?

Now what?

First and foremost, this does not define you. Trust me, we have all heard stories of prominent lawyers, judges, and politicians that have failed the bar, sometimes multiple times. I could make you a list of all of the successful lawyers that were unsuccessful on the bar exam their first time.  But I won’t, because failing the bar does not define them. If you try to make a list, you won’t find “failed the bar” on Wikipedia pages, or official biographies, or resumes. It’s not because it’s some secret shame, but because no one cares. In 5-10 years, no one will care how many times it took you to pass the bar. In fact, they won’t care in 6 months or a year. It seems like a defining moment right now, but it isn’t. Your defining moments come from the way you treat clients, the way you treat colleagues, and what you choose to do with your license once you have it.

I write this twice a year, every time results come out, because I think the message is that important. So let me repeat, this does NOT define you.

Having said that, it’s ok to take a few days to be upset. Do what you need to do. But then dust yourself off, and start looking towards the next bar. Also, remember that failure is not the opposite of success, it’s a part of success. Every successful lawyer has failed – on the bar, at trial, in a negotiation, not getting a job. Every failed politician has lost a race. Every failed Olympian has lost a game or a match. That failure is a normal way to achieves success in the future. However, for that to be true, you have to learn from failure.

So how to learn from this?

Step 1: Request your essays back.  Many states allow you to request, or view, your essays.  There are often deadlines for this, so make sure you do it right away.

Once you have your essays, I want you to do a couple things. Review your answers. Now that you are removed from the day of writing, what do you notice? Then, if possible, compare them to the sample answers. See if you can pick out patterns. Don’t just focus on the conclusions, or the issues spotted. Did the sample answers use more facts? Or have a more in depth analysis? Be honest with yourself. Also, if you have a varied set of scores (one essay is a 1, while another is a 5) compare the 2. What is the difference? Don’t just shrug it off as you know one subject better. Pay attention to the writing in both.

In addition, here is a CALI lesson on assessing your own work. It may seem geared towards law students, but it can help you assess your essays:

Assessing your essays is the really important first step. I have seen so many students that know the law, and know it well. But they don’t put enough explanation in their essays, and that costs them. So really take that time to be critical, and see what you need to work on.

Step 2: Analyze your score  How close or far away are you from passing? Did you do better on a certain subject? Is your written score considerably better than your MBE score? This is an excellent place to start. Some things to keep in mind:

  • If your essay score is higher than your MBE, it may be tempting to place most of your energy into MBE practice, and forget about essays. This will only result in your score “swapping.” So, while it is good to note that you might need more work on the MBE, don’t forget that you aren’t carrying the score with you so you still need to practice essays. The reverse is true if you did better on MBE than the essays.
  • Perhaps you did really well on the torts MBE, but your lowest score was civil procedure. Again, do not just focus on civil procedure, and forget other subjects. Your scores will just swap places, and not improve overall.
  • You might be only 2 points away from passing. Great! However, your score is still starting from scratch. Meaning, in one sense, you only need 2 more points, but that’s not how the bar works, obviously. You have to still work to get the points you already got AGAIN, and it is likely you forgot things, and are out of practice.

Step 3: Think about external things  Did something unrelated to the bar impact your studying? Perhaps a health issue, physical or mental? Perhaps a family emergency, or ongoing family issues?

Have you suffered from anxiety in general or related to exams? If you do, are you being treated for the anxiety?

These things can and will impact your studying. Not matter how much time and effort you put in, if you are not physically and mentally healthy, you won’t process the information correctly.

Not to mention, if there is something in your life that is distracting you, that will also impact how you process information.

And again, we were in a pandemic. This likely impacted your ability to study and focus. That’s ok, and that’s normal.

Step 4: Accommodations  If you were entitled to accommodations in law school, did you use them on the bar exam? If not, make sure you apply for them this time around. If you were denied accommodations, still try again. They likely need more recent testing, or paperwork.

Step 5: Think about your Study Habits.  The most important thing you can do is practice. Many bar students get caught up in trying to memorize every sing law, or master every subject. While this is admirable, and takes quite a bit of time and effort, it's not a surefire way to find success.  This is because mastering the bar is a SKILL. You need to practice. When I work with repeat takers, I often find that they knew the law, and they studied hard, but didn’t practice enough essays or enough timed MBE.

This matters for a few reasons. One is timing. You can know all the law in the world, but if you can’t write an essay in 30 minutes, you will struggle to get the scores you need. Similarly, doing 100 MBE questions in 3 hours is not easy, even if you DO know the law. You need to practice the timing, and practice for the stamina.

Secondly, the skill being tested on the bar is applying the law to the unique set of facts. Yes, you need to know the law to do this, but knowing the law is not enough. You need to practice the application. The application is typically where you will get most points. 

This means that writing essays, fully out, not just passively reading sample answers or issue spotting, is key. It has to be a priority in studying.

In fact, all of your studying should be active. Don’t focus on rewriting, or reviewing, outline after outline. Again, yes, you need to know the law, but you are also more likely to remember the law if you apply it – in MBE questions, writing essays, and so forth.

Step 6: Change it Up.  Different study habits work for different people. If you studied at home and found that you were easily distracted, find a space at the library or nearby coffee shop to study. If you did go the library/school/coffee shop every day, maybe try studying at home.

Finally, if you can, reach out to your school's bar prep person!

And good luck!

(Melissa Hale)

April 21, 2021 in Advice, Bar Exam Issues, Bar Exam Preparation, Bar Exams | Permalink | Comments (0)

Thursday, February 11, 2021

Lessons From Surgeons for the Last Two Weeks of Prep until the Feb 2021 Bar Exam

Wow; do I ever get distracted...with emails...incoming snapchats....Facebook posts....and just the overall buzz of the omnipresent internet.  There is so much NOISE that takes up so much of my TIME that I seem to get so LITTLE done.  That's particularly true for me in preparing for big exams because, to be honest, I am a big-time procrastinator...with a CAPITAL P!

In fact, I was just fretting about how much I had to do (which, of course, is related to my procrastination issues) when I came across an article by Lucette Lugando describing how surgeons stay focused during organ transplants.

Hum...That's what I need.  To Focus. To Stay on Task.  To Just Get Something Meaningful Done Today!  

So, here are a few thoughts that I gleaned from Lugando's article that might be especially handy for law graduates preparing for the Feb 2021 bar exam (and for people like me who live to procrastinate):

First, put away my cellphone.  Turn it off.  Hide it.  Ditch it.

As detailed in Lugando's article, "Transplant surgeons, whose work includes stitching minuscule blood vessels together, minimize their distractions. No one checks cellphones in the operating room during surgery."  

No one checks their phones?  Really?  Are you kidding?  Of course not, at least not during surgery.  And, bar exam preparation requires us to do surgery, so to speak, on our study tools and on loads of practice exams.  

Thus, as I create study tools or as I learn by taking practice exams, I can help myself mightily by placing my focus on my work at hand... rather than the cellphone that is so often in my removing the "cellphone temptation" out of my grasp.  Who knows?  It might even lower my anxiety to stop looking at it constantly.

Second, sharpen my field of vision to just the essentials (working on my study tools, practicing lots of exam questions, and looping the lessons learned from my practice problems back into my study tools) by creating an environment that is free of my own personal that I focus on learning rather than the noise that is so often around me.

As Lugando points out, "The surgeons often wear loupes mounted on eye glasses to magnify their work, which limits their field of vision to a few inches."  

In other words, with respect to bar exam preparation, maybe I need to limit my field of vision to the "few" essentials, namely, creating study tools, testing my study tools out through practice exams, and then editing my study tools to incorporate what I learned about problem-solving through the practice exams.  

There's a saying, apparently by Winston Churchill, that says: "You will never reach your destination if you stop and throw stones at every dog that barks."  Or, as Bruce Lee put it, "The successful warrior is the average [person] with a laser-like focus."

So, instead of having the cellphone bark at you constantly, you might just try out what surgeons do...and turn your focus into a laser by getting rid of distractions during the final two weeks of bar prep as you create your study tools and practice lots and lots of bar exam problems.  

In the process, you'll become, to paraphrase Bruce Lee, a bar exam champion.  (Scott Johns).

February 11, 2021 in Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration | Permalink | Comments (0)

Tuesday, February 9, 2021

Predictions Are Hard, Especially About the Future

Here it is, Tuesday evening, and I am finally settling down to write another blogfest – this, like many weeks, despite having specifically placed this high enough up on my to-do list that I genuinely expected to be starting in the early afternoon. The problem – one I am sure we are all familiar with – is not the writing, but all the other things I had planned to finish beforehand, which took far longer than I had originally estimated they would. Fortunately, such difficulties are illustrative of this week’s topic of discussion – the planning fallacy and how to counteract it.

The planning fallacy is a simple psychological phenomenon: human beings’ predictions about the time needed to complete a future task are usually significant underestimations. In some cases, wild underestimations: for example, when construction began on the Sydney Opera House in 1959, it was expected to be completed by 1963, but the site was not actually finished until 1973. Daniel Kahneman and his partner Amos Tversky were the first to describe this phenomenon, more than forty years ago, and Kahneman writes about it in his wonderful book, Thinking, Fast and Slow. He explains it as a kind of optimism bias, a tendency of people to adopt the rosiest scenarios as they imagine how a task will proceed.  Later scholars added other nuances to this explanation.  One reason for this apparent optimism bias, for example, might be the self-serving human tendency, when considering similar past situations, to take personal credit for all the things that went right (and thus assume they will go right again in the future), but to attribute errors and delays to outside forces that they presume will not occur again.1  Nassem Taleb, in his book Antifragile, suggests it may not only be a psychological phenomenon, but also a consequence of a natural asymmetry: whenever circumstances or events cause a deviation from a well-laid-out plan, chances are far greater that the disruption will lead to delay than to expedition, so that the sum total of all deviations would always be expected to be postponement.

How many times have we seen the planning fallacy in action amongst our students? Just in the past month, I have met with returning students, vowing to perform better in this coming spring semester, who base this determination on unaccountably confident projections of all the steps they will complete to do so.  I have worked with February bar examinees, noses to the grindstone, who despite their genuine efforts are finding themselves slipping behind their intended schedules.  Not every student suffers from this bias, of course, and many of those who experience the bias don't actually suffer for it, either because they start with ambitious goals that leave plenty of leeway or because they find the extra time and energy to offset their underestimated projections.  Still, every year brings a significant crop of students who do not perform as well as they might have, because they seriously underestimate how long it will take them to complete an essay test question, compile a useful outline, learn the rules governing a specific legal topic, research, draft, and edit a significant writing assignment, or attend to the demands of student organizations.

Fortunately, the psychologists and scientists who have studied the planning fallacy have suggested a few strategies that can be used to counteract it, and these strategies are easily adoptable -- or correspond to techniques already used -- by academic support professionals.  In his book, Kahneman suggests the use of reference class forecasting -- that is, making predictions of the time needed to complete a task based not on a person's (or an entity's) internal sense of how long it should take them, but on observations of actual outcomes in prior similar situations.  In other words, if I were going to build an opera house, I might start off by assuming I could get it done in a few years, but if I considered how long it took to build the one in Sydney (and of course in other locations), I should understand that it is likely to take more than a decade.  Many of us do something at least adjacent to this with our students already -- providing them with estimates about how long they should expect to take to complete a case brief, for example, or to study for the MPRE -- but the idea of reference class forecasting suggests that it might be even more powerful to refer specifically to prior performances by other students.  Instead of saying, "You should devote at least 24 hours," it might be more effective to say, "Last year, every student who devoted 4 hours a day, every Saturday and Sunday, for three weeks, completed this successfully."

Another suggestion is the use of the segmentation effect. It has been observed that a person's estimate of the total time it will take to complete a task will be longer -- and thus likely more accurate -- if they are asked to segment the task (break the task down into a number of sub-tasks), to estimate the time it will take to complete each sub-task, and then to add all those times together to come up with the total time.2  However, there is a cognitive cost to being mindful and particular enough to break complex tasks down into numerous sub-tasks, and, without help, this kind of approach may be hard to learn and sustain.  Fortunately, this is just the kind of help we can give, especially to inexperienced students who may not be able to envision how a long-term task can be broken down, or even what all the steps involved might be.  By providing students with a framework of what to expect, and encouraging them to think realistically about what it will take to build each part of that framework, we can help them to stay on track, or at least in the general vicinity of the track, by using the segmentation effect.

Finally, another tool that has been suggested to combat the planning fallacy is the implementation intention, a term coined by Peter Gollwitzer for a particular model of thinking about future actions.  Encouraging people to think specifically about when, where, and how they will act towards their goal tends to make them more likely to move forward steadily, and in a timely way, towards them.  For example, people who received a telephone call in which someone asked them what time they planned to vote, from where they would be heading to the polling place, and what they would be doing just before they left to vote -- all questions designed to prompt them to think about when, where, and how they would vote -- were more likely to vote than those who did not receive the phone call.3  The mental IF-->THEN statement (as in, "If I am aiming to take a practice exam, then I should get a copy of an old exam from the library on Friday") is the implementation intention that moves people apace towards their goals.  This, too, is something that academic support professionals do, or can do.  By querying students about the specifics of how they expect to achieve their long-term goals, we can induce them to map out their plans in advance, changing vague ambitions about what they would like to achieve into articulable steps (the implementation intentions) that they can follow methodically to their desired ends within the time they have available.

It is a natural human tendency to overestimate what can be done in a given period of time. By helping our students account for this tendency, even if we cannot help them complete everything, we can at least help them get in a position where they've done enough to succeed. 

[Bill MacDonald]

1Roger Buehler, Dale Griffin & Michael Ross (1995) It's About Time: Optimistic Predictions in Work and Love, European Review of Social Psychology, 6:1, 1-32, DOI: 10.1080/14792779343000112.

2Forsyth, D.K., Burt, C.D.B. Allocating time to future tasks: The effect of task segmentation on planning fallacy bias. Memory & Cognition 36, 791–798 (2008).

3Nickerson, D. W., & Rogers, T. (2010). Do You Have a Voting Plan?: Implementation Intentions, Voter Turnout, and Organic Plan Making. Psychological Science , 21 (2), 194-199.

February 9, 2021 in Advice, Bar Exam Preparation, Exams - Studying, Science, Study Tips - General, Teaching Tips | Permalink | Comments (0)

Tuesday, February 2, 2021

Academic and Bar Support Scholarship Spotlight

New Scholarship:

Sarah Schendel, Listen! Amplifying the Experiences of Black Law School Graduates in 2020, __ Nebraska L. Rev. __ (forthcoming 2021).

From the abstract:

Law students graduating in 2020 faced a number of unusual challenges. However, perhaps no students faced more emotional, psychological, logistical, and financial challenges than Black law school graduates in 2020. In addition to changes in the administration of the bar exam (including the use of technology that struggled to recognize Black faces) and delays in the administration of the exam that led to anxiety and increased financial instability, Black communities were concurrently being disproportionately impacted by the COVID-19 pandemic. The pandemic led to increased care-taking responsibilities for many, concerns over the health of family members, and a lack of quiet and reliable space to study. Black law school graduates already struggling to juggle these challenges were also confronted with a rise in anti-Black police brutality, and the racist words and actions of politicians. As a result of this unprecedented series of stressors, many Black law graduates struggled to focus on studying for the bar, with some choosing to delay or abandon sitting for the bar altogether. Many expressed anger, disappointment, and betrayal at the profession they have worked so hard to enter. This Article summarizes the survey responses of over 120 Black law students who graduated in 2020 and were asked how the COVID pandemic and increased anti-Black violence impacted their health, education, and career aspirations. It seems likely that the impact of 2020 on the presence and wellbeing of Black lawyers in the legal profession will be felt for years to come. As professors, deans, lawyers, and policymakers reexamine the function of the bar exam and confront inequalities in legal education, we need to listen to these graduates’ experiences.

Foundational ASP Scholarship:  

Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support Programs, 31 U.S.F. L. Rev. 839 (1997)

From the abstract:

Reviews the history, rationale, development, and different program structures of Law School Academic Support Programs; briefly summarizes learning theory and explains how ASP can implement those theories to teach academic skills; and suggests that notwithstanding the significance of helping students develop solid academic skills, probably the most important work that ASP professionals do is to provide the non-academic support by making the human connection to students and believing in them.


(Louis N. Schulze, Jr., FIU Law)

February 2, 2021 in Bar Exam Preparation, Bar Exams, Current Affairs, Diversity Issues, Writing | Permalink | Comments (0)