Thursday, February 7, 2019
Recently, I heard a discussion suggesting that bar passers do things differently in the final two weeks than those who are not successful on the bar exam. That got me thinking about what I've been seeing, at least anecdotally, in my 10-plus years working with students in preparing for their bar exams.
First, both groups tend to work extraordinarily hard in the last two weeks before their bar exams. So, what's the difference? It must be in the type of work that the two groups are doing. In short, during the final two weeks, it seems to me that bar passers tend to ramp up their practice with lots and lots of MBE questions and essays [while also creating super-short compact homespun study tools (2-3-page outlines, flashcards, or posters)]. In contrast, people who find themselves unsuccessful tend to focus on creating extra-bulky study tools and trying to memorize those study tools with very little continued practice of MBE questions and essays. In brief, one group is continuing to practice for the exam and the other group is focused on memorizing for the exam.
But, here's the rub:
It’s a perfectly natural feeling during the final two weeks 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 “useful forgetfulness.” You see, when we jam packet our study tools with everything, we aren’t learning much of anything because we haven’t had to make any hard decisions about what to let go (what to “forget”). We’re just typing or handwriting or flowcharting like a scribe. But, when we purposefully decide that we are only going to make a super-short “starter” study tools (knowing that we can always add more rules as we work through more questions during the next couple of weeks), our decisions about what to put in our super-short study tools (and what to leave out) means that we actually empower ourselves to know both what we put in our study tools (and what we left out).
As a suggestion, tackle two subjects per day – one subject that is essay-only and one subject tested on both the essay and the MBE exam. Starting with one subject in the morning, using the most compact outline that your commercial course provides (and referencing the table of contents for each subject), create a super-short study tool with the goal of completing your study tool in 2 hours or less.
Here’s a tip:
If you think that you need a rule, don’t put it in because you can always add more later. Instead, only add a rule that you’ve seen countless times over and over. Just get it done. Move quickly. Don’t get stuck with definitions of elements, etc. Stick with the big picture umbrella rules. Think BIG picture. For example, be determined to get through all of contracts in 2 hours (from what law governs to remedies). As a suggestion, have just one rule for each item in the table of contents for your commercial bar review outline. Don't go deep sea diving. Stay on the surface. Then, in the remainder of the morning, work with your study tool through a handful of practice essays. In the afternoon, repeat the same tasks using a different subject (creating a snappy study tool and working through a few essays). Finally, in the evening, work through mixed sets of MBE questions.
In the last week before the bar exam, with most of your starter study tools completed, focus on talking through your study tool (for about one hour or so) and then working through lots and lots essay problems and MBE questions. As you practice in the last week, feel free to add rules that come up in practice essays and MBE questions to your study tool. As I heard one person explain it, your study tool becomes sort of a "bar diary" of your adventurous travels through essays and MBE questions (thanks Prof. Micah Yarbrough!). In short, you've created a study tool that has been time-tested and polished through the hard knock experiences of working and learning through lots of bar exam hypothetical problems.
So, for those of you taking the February 2019 bar exam, focus on practice first and foremost 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! (Scott Johns).
P.S. For those taking the Uniform Bar Exam, there are 12 subjects as grouped by the bar examiners (I think there are 14 subjects in California, depending on how you count subjects):
* Business Associations (Corporations, Agency, Partnership, and LLC)
* Secured Transactions
* Federal Civil Procedure
* Family Law
* Wills & Trusts
* Conflicts of Law
* Constitutional Law
* Criminal Law & Procedure
Friday, February 1, 2019
The ABA House of Delegates voted overwhelmingly against the proposed toughening of bar passage standards for ABA schools. The adverse impact on California law schools and on diversity were two reasons given for the defeat of the proposal. You can read about the vote in the post on Inside Higher Ed here.
Thursday, December 20, 2018
Congratulations December 2018 graduates! What a herculean achievement! Simply put, outstanding!
Nevertheless, I know that for many of you, right now it feels like a bit of a let down because you find yourself right back right back in the classroom as you prepare for your bar exam in February 2019.
That's exactly how I felt. Simply put, graduation felt a bit disingenuous as I had so much work left to be done to earn my law license. However, let me be frank. As you approach your bar studies, you are no longer a law student but a law school graduate. It may not feel like much of a difference, but its important to recognize - throughout these two months of your bar review learning - that you are a new person with a new professional identity, trained and well-seasoned to think through, analyze, and communicate solutions to vast arrays of legal scenarios.
Despite such remarkable progress as demonstrated by your law school graduation, many bar takers stumble in the first few weeks of bar prep, finding themselves increasing at odds with how to best learn and prepare themselves for the bar exam. I sure did. I spent much of the first few weeks trying to learn the law by, well, listening to professors talk about the law and watching professors talk about solving legal problems with the law. Big mistake! Cost me a lot of valuable time! That's why I write to you, dear law school graduate and now bar taker. Instead of focusing on learning the law, focus right from the get-go (i.e, that means right now, today!) on working through lots of practice problems each day. In short, I was, unfortunately, a "linear learner," as Professor Catherine Christopher says in her wonderful book entitled Tackling Texas Essays (Carolina Academic Press 2018): https://cap-press.com/books/
I. Linear Learning
Let me explain a bit about the difference between linear learning and recursive learning. As depicted by Professor Christopher in the diagram below from her book on successfully preparing for the bar exam , linear studying has a defined path. And, as a bonus, it sure looks nice and orderly, leading to the illusion of a direct straight-line path to success. Indeed, right now, many of you are focused (solely?) on watching videos, reviewing your notes, reading your commercial outlines, and making gigantic study tools. But, if you are like me, you aren't yet taking practice exams (or are only doing very few of them at the most).
Linear Learning (Professor Christopher 2018)
However, as explained by Professor Christopher, that's a big problem. Here's why. You'll end up spending most of the 8 - 10 week bar prep period doing very few practice problems, trying instead to master the law so perfectly so that you'll have enough confidence in the last few weeks to do well on practice problems. In short, you are afraid (I sure was!) to tackle practice problems because there's so much to know (and so many ways to make mistakes).
However, that's a big problem because it's in our mistakes that we learn best. We don't really learn by watching others. Who ever learned to play piano, play soccer, dance, or even litigate a case without practicing (which means "rehearing" and "acting out") what you hope to accomplish in the future with polish? No one prepares to become an expert without first being a novice.
But, as Professor Christopher comments, it feels really terrible, really terrible, to practice problems so early on because we make so many mistakes. But, if we delay practicing problems until the last few weeks possible, we make that practice much more of a high stake experience, in the words of Professor Christopher, such that there's no wiggle room for errors in our practicing experiences (so that there is no room for learning, either). In my opinion, linear studying leads to disappointment and frustration.
But, there's good news ahead, for those of you who engage in recursive learning.
II. Recursive Learning
Now here's a bit about recursive learning. As depicted in the diagram below from Professor Christopher's text, successfully preparing for the bar exam involves learning in a circular recursive process rather than a straight-line linear process.
Recursive Learning (Professor Christopher 2018)
As Professor Christopher explains, the first step - "reading and reviewing" - involves watching lectures, taking lectures notes, and reading outlines [about 4 hours or so per day].
But take note of second step in the circular process: "work to understand." That means that we get involved in the learning, we take center stage, so to speak, in our own learning by "work[ing] to understand the material" so that it becomes real to us. Just like learning a language, in which we start to start learning to speak and write a language by...speaking and writing a language! For bar takers, that means in this second stage that we make our own personal condensed notes or flashcards or other study tools to "help...get the information into [our] head[s]." (Here's a snappy suggestion: Just take hold of one (1) blank piece of paper, and, referencing your lecture notes in hand, write down, scribble, flowchart, and doodle the major take-aways from that day's lecture. Note: Don't let yourself get bogged down by trying to re-write your entire lecture notes; rather, focus only on big picture concepts because people pass the bar based on the big picture principles rather than the nitty picky details.). [about 1 hour or so per day].
The last step takes real bravery, discipline, and honesty too. And, it's vital for your learning. Start right away that very day, each day, by digging into actual bar exam questions, working through them one by one, using notes and outlines freely, and then reviewing practice answers afterwards to assess what went well along with concrete ways to improve with future practice problems. Here's a key tip for your practice sessions: Be super-curious when you miss a question; poke back around to the fact pattern - like a detective - to figure out whether you missed the question because you missed a rule or, more likely, you missed an important trigger fact in the fact pattern. So, for example, if you write a picture-perfect IRAC essay but then notice that the problem didn't involve that rule, go back and figure out where in the facts the correct rule was triggered. In short, don't just test yourself through practice problems but rather use the opportunity to learn through practice problems. [about 3 to 4 hours or so per day]. (Then, as illustrated by Professor Christopher's diagram, the next day we begin again with another bar review lecture.).
The great news is that throughout this process, while you might not feel like you are doing much learning, you are really dancing with the materials, making them your own, developing and finessing your critical reading, organizational, and writing skills. In short, you are productively on the path to successfully preparing for your bar exam.
So, in the midst of this bar review season, take courage. Indeed, be of good cheer, as the holiday saying goes, because true learning takes its shape in you - step by step - through the daily process of recursive learning - (1) reviewing, (2) working to understand, and (3) then testing yourself through practices problems. To be personal, I wish I had known this at the outset of my bar prep season. So, feel free to step out of the "line" and learn! Oh, and congratulations again on your graduation from law school! What a wonderfully momentous accomplishment! (Scott Johns).
December 20, 2018 in Advice, Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Exams - Studying, Learning Styles, Stress & Anxiety, Study Tips - General | Permalink | Comments (0)
Tuesday, December 4, 2018
At this time of year, I am working mostly with two groups of students: 1L students preparing for their first set of law school final examinations, and recent and soon-to-be graduates who are planning to take the February bar examination. While these two cohorts are about as far apart as students of law can be, there is at least one common element to their experiences: the peril associated with reaching a goal.
Regretfully, some of those preparing for the February bar exam, at my school and elsewhere, are graduates who have already taken the July bar last summer and did not pass. Every year, people who find themselves in this position include some strong law school performers, people with GPAs and other indicators that suggested that they should not have had any problem passing with their classmates. Sometimes, their disappointing performances can be explained by extenuating circumstances, like illness. But other times, it just appears that the new graduate only put in a fraction of the effort needed over the summer to prepare for the bar exam -- e.g., having signed up for a bar preparation course, they completed less than half of the assignments. Few people would stand a chance of passing the bar with so little preparation.
Observers of such misguided lack of effort might attribute it to overconfidence -- good students mistakenly believing their law school performance was preparation enough. Maybe it seems like that even to the disappointed graduates, shrugging their shoulders and otherwise unable to explain just how they had let 10 weeks get away from them without applying themselves to their studies as they had in the past. But perhaps for some there is another, less self-condemnatory element at work. Consider this: in the two or three weeks before bar studies were to begin, these students had just completed probably the most grueling three years of study of their lives, and it had all culminated in proud marches across the graduation stage. They had reached the finish line at the end of a very demanding course. But, as Gretchen Rubin notes in her book Better Than Before, "A finish line marks a stopping point. Once we stop, we must start over, and starting over is harder than continuing. . . . The more dramatic the goal, the more decisive the end -- and the more effort required to start over."
We see examples of this all the time. People who exercise scrupulously to lower their weight to a target goal -- and then stop exercising and gain back the weight. Writers who work diligently every day to complete a long-term project, but then lose the daily habit once the project is complete. Surely at least some portion of those capable law school graduates who did not put in the effort they might have made to prepare for the bar had at some level seen their final final exams and their pompously circumstantial degree conferment as manifestations of a very dramatic conclusion, and then found themselves at a psychological disadvantage in trying to start, in bar preparation, what seemed to them a brand new test of willpower, tenacity, and capacity.
This suggests that one way to help some of our 3L students prepare to jump right into the huge bar preparation undertaking is to message it not as a novel ordeal, but as just one more step toward the ultimate goal of practice. We might also downplay the significance of their spring final exams -- liberally reminding our students that those will not be the last exams they ever take -- and even minimize the ceremony of law school graduation, by pointing out to them that the real endgame is the swearing-in ceremony. The more psychological continuity that students cultivate between law school and the bar examination, the more likely they will be able to carry over their habits of diligence and fortitude into the bar study period.
This kind of messaging might also be helpful to some of our 1L students right now. They are not yet near graduation, but no set of final exams before the last seems more momentous and conclusive than the first set at the end of the fall semester. Students who have the perspective to see this first set of exams as just one of six may be less like to feel that they are psychologically starting over again in the spring. Conversely, those who more explicitly see these exams as a finish line -- students who tell themselves, "If I can just get through these . . .", or those who seem to focus on the weeks off between semesters as a sort of quasi-retirement -- may not have as much momentum going in to classes in 2019, and may struggle to bring themselves back to the same level of diligence they had reached in the fall. Bringing to these students' attention the long-term effort required in law school, and the expectation that what they learned in that first semester will be needed again and again through graduation, the bar exam, and practice, may help them find getting back into reading, briefing, and studying in January is just that much more achievable.
Sunday, November 25, 2018
Invitation from NCBE
The National Conference of Bar Examiners requests your assistance with a significant research study regarding the bar examination. NCBE has created a Testing Task Force to oversee a comprehensive, future-focused research study of the bar examination, and we want and need to tap the insights of legal academics. We would like to invite you to participate in one of six focus group sessions held at the AALS Annual Meeting in New Orleans on January 3 and 4, 2019.
The Task Force is approaching its study with no preconceived notions and is considering the content, format, timing, and delivery methods for the bar exam to ensure it keeps pace with a changing legal profession. For more information about the study, please read the overview of our research plan at www.testingtaskforce.org/research/.
As a legal educator, you are a vital part of the legal licensure process, and gathering input from you and other stakeholders is an essential component of the study. We hope you are as eager to share your ideas and opinions about the bar exam of the future as we are to hear them! The focus group sessions will be facilitated by one of the Testing Task Force’s independent research consulting firms, ACS Ventures LLC. The number of participants will be capped at 12-15 people per 90-minute session to ensure that everyone has an opportunity to provide their input, so you are encouraged to register early to reserve your spot in a session.
To sign up for a focus group session at the AALS Annual Meeting, complete this online registration form. You’ll receive a confirmation with logistical details and additional information about the session by email.
NCBE and its Testing Task Force are committed to creating additional opportunities for focus groups and web-based interactions to gain insights from legal academics, law students, and other stakeholders in the next six months. Subscribe at the Testing Task Force’s website to receive updates about the study and to be notified about other opportunities to participate.
Thank you for all you do to help prepare law students to become lawyers. If you have questions, please feel free to contact the Testing Task Force at email@example.com. We look forward to hearing from you!
Tuesday, November 13, 2018
I have learned probably hundreds of tips, tricks, and techniques to improve one's performance on examinations. But there is only one that I learned with ten million people watching.
In 2005, I took the Florida Bar Exam -- my second bar exam, after passing the DC Bar Exam seven years earlier. When I returned to my car, the lone message waiting for me on my cell phone was not the expected call from my family. Instead, it was Glenn, from Culver City, California, calling to inform me that I had been selected to be a contestant on Jeopardy! -- the fast-paced quiz show in which contestants vie to answer 61 questions in 22 minutes.
The taping was to be in a month, and so I went right from cramming for the bar to cramming for trivial warfare. I knew there was no way I could study every possible subject that might come up on the show. At the same time, I felt like I ought to be "training". Today, there are websites that archive years of Jeopardy! clues, and old episodes on demand on Netflix, but these weren't available in 2005, so my main source of practice was watching the daily broadcast of the show at 7:30 p.m. And, perhaps because I felt that it was a rather precious resource, I decided that I wasn't just going to casually sit on the couch and shout out responses with the contestants. I decided that I was going to act like a contestant. Each contestant stands behind a podium and holds in one hand a pen-sized electronic button, and the first person to press that button after host Alex Trebek finishes reading the clue gets the chance to give the response -- famously, in the form of a question (e.g., "Who is George Washington?"). So, for a month, I tried to simulate their actions. I watched the show standing up, behind a living room chair. I held a clickable ballpoint pen, and practiced pressing the top button after Trebek finished reading each clue, and only then did I allow myself to call out a response in the form of a question. From time to time, I would feel a little goofy doing this, thinking, Isn't the show really about what you know? But I kept at it, because it seemed like the only way to really practice.
Finally, I arrived in California for the taping. Jeopardy! tapes five episodes in one day, a couple days every few weeks, so on the day on which I was scheduled to tape, I was herded into the studio with about a dozen other contestants. We spent a few hours signing documents and having make-up applied and learning all the rules and, most important and exciting, playing a few practice rounds on the set to familiarize ourselves with the equipment. I noticed some of the other contestants -- all clearly bright and as delighted as I was to be there -- seemed slightly awkward behind the podium. We all knew intellectually what to do, of course; we had all been fans watching the show for years, and we had just received a thorough briefing on what was expected of us. Even so, some contestants struggled to push their electronic button at the right time -- pushing it before Trebek was done talking would lock you out so that you could not answer, but if you waited too long, someone else would get in before you. Others got the hang of the button, with concentration, but then could not remember the responses they were trying to give. And there were times when contestants would press the button correctly, and give the right response, but forget to give it in the form of a question.
But when I went up on stage to practice, it was like I was standing back in my living room. I had practiced the timing of pushing my pen button so many times that, when it came time to press the real thing, I did not even have to think about it. I rang in quickly, focused entirely on recalling the information needed, and then gave the answer automatically in the form of a question. It worked in practice, and it worked in the actual taping. Yes, the show is about what you know, but it's important that nothing hinder you from demonstrating what you know. I won four games, and eventually came back to be a finalist in the Tournament of Champions.
In the years since, I have learned that what I had stumbled onto is known as "simulation training". It is a kind of practice that is not unlike the physical training that athletes do to develop muscle memory and automatic responses. In the context of quiz shows and law examinations, though, what makes simulation training particularly useful is not just the physical skills that it develops. What makes it useful is that it frees up mental space and focus for more complex thought. Not having to think about when to push the button and how to phrase my answer enabled me to devote full attention to reading the clue and retrieving the correct response.
Practicing to take examinations -- whether final exams or Bar exams -- can provide the same kind of simulation training, under the right conditions. Of course, students should write practice exams for other very good reasons, like improving legal analysis and uncovering weaknesses in subject matter knowledge, because law examinations should also be about what you know. But there is an added benefit when practice exams are done under conditions that imitate expected exam conditions. There are dozens of details and stimuli that students encounter consistently during an actual exam that, if unfamiliar, can demand valuable thought or cause detrimental distraction: dressing comfortably, locating a seat, timing bathroom use, logging into ExamSoft, calculating timing targets, contending with silence or noise, reading and following directions, cutting and pasting text, properly submitting responses, etc. Encouraging students to incorporate attention to these elements during their practice work, even when they are not really necessary, can help them improve performance, not because performance depends on finding a proper seat, but because being able to do so with almost no thought allows them to devote their mental energies to the tasks that really need them. Exam performance is about what you know, but it is important that nothing hinder you from demonstrating what you know.
Thursday, November 8, 2018
I'm worried about final exams. To be frank, I don't like the word "final." I have to say that the word "final" particularly bothered me in my previous aviation career, where air traffic controllers clear airliners for the "final approach to runway 18." I just didn't want that to be my final approach. I hoped to have at least a few more years in aviation.
But, here's the biggest rub that I have with final exams.
Because law students frequently have only a few mid-term exams to assess their learning (and to therefore improve before their final exams), final exams are, well, too final to make an improvement in one's learning. In fact, I suspect that the term "final exams" tends to lead to more of a fixed mindset with respect to our law students' learning. They get their grades, often weeks after finals, and most students - it seems - never review their exams to identify what they did that was good (nor to look for ways to improve in the next round of final exams).
Nevertheless, it's not just final exams that can be a hurdle in improving learning for the future.
Our feedback can be too.
As summarized by Jennifer Gonzalez in her blog "The Cult of Pedagogy," where she writes that "[r]eally, the experience of school could be described as one long feedback session, where every day, people show up with the goal of improving, while other people tell them how to do it. And it doesn’t always go well. As we give and receive feedback, people get defensive. Feelings get hurt. Too often, the improvements we’re going for don’t happen, because the feedback isn’t given in a way that the receiver can embrace." https://www.cultofpedagogy.com/feedforward/. In short, feedback might just stunt growth, which is another way of saying that feedback might stunt learning.
But, there's great news!
Rather than providing our students with more and more feedback, we might consider providing them with "feedforward" instead.
But first, here are the problems with feedback. Feedback focuses on the past. It focuses on the negative without necessarily providing ways forward to improve. It focuses on being stuck rather than helping people get unstuck. Indeed, as outlined by Jennifer Gonzalez, there are at least three ways that feedback hinders learning:
• First, citing to author and educator Joe Hirsch, feedback shuts down our "mental dashboards." In my words, it crashes our brain. That's because the "red marks" and the many comments to "change this" or to "change that" tend to cause us to believe that all is lost; there's no hope for us. We just don't see a way forward because, frankly, we are stunned with a horrible feeling that we just don't get it...and never will. We are locked in the past. The future is hidden from us.
• Second, citing again to Joe Hirsch, feedback tends to reinforce negative thoughts because the comments tend to lead us to believe that we are stuck in a sort of "learned hopelessness" in which we cannot change our future. Rather than building a growth mindset in our students, feedback that is focused solely on what our students have done in the past creates a fixed mindset with students believing that there's little that they can do to improve their learning in the future.
• Third, citing again to Joe Hirsch, we tend to approach feedback with a single-minded crystalized focus to see what grades or marks or numbers we received (rather than seeing feedback as providing us with helpful and hopeful positive tools forward to achieve better grades in the future). In short, despite all the feedback given, students tend to see and internalize their grades first, and, because first impressions lead to lasting impressions, feedback often falls short in producing improvements in learning for future assessments. Too often, the grades on feedback crystalize into final exam grades, too.
In contrast, "feedforward" focus on the future. It takes the work of today and provides insights, comments, and tips framed in a communicative, generative way that leads to improvement in the future. It is forward looking; never backward looking. Feedforward believes in the future - a bright future - and provides particular ways for our students to move forward towards that future of improvements in their learning.
So, what is "feedforward?"
Simply put, it's coaching students about their current performance with heart-felt questions and insights that get our students thinking for themselves about how they can improve their learning for the future.
Curious? Rather than going through the six steps in providing helpful "feedforward" to our students, let me just point me to you the steps as cited by Jennifer Gonzalez in her blog article about "Feedforward," available at: https://www.cultofpedagogy.com/feedforward/.
And, one last thought...
As academic support professionals, this month is a great opportunity. In particular, nothing really needs to be "final" about final exams. That's because we can provide our students with opportunities to receive positive "feedforward" well before final exams - via practice exams, exam writing workshops, academic support small group tutoring sessions, etc. - such that our students will learn to improve well before they take their final exams. Indeed, the key to a great final exam experience is to have great "feedforward" experiences on the way to taking final exams. So cheers to the future - our students futures! (Scott Johns).
Thursday, October 25, 2018
My dog loves rabbit trails. Luckily for the rabbits, at least thus far, the trails have never led to rabbits.
That got me thinking about exam writing and rabbit trails.
But first, a bit of background...
I find that most bar exam takers who do not pass the bar exam write brilliantly well-organized professional essay answers. The rules are crisp; the IRAC is polished. But, in most cases, some of the answers are unresponsive to the fact patterns at hand. In other words, its as though the fact patterns were irrelevant to answering some of the particular essay questions. Instead of finding the "rabbits" in the essays, they followed "rabbit trails" leading to no where. And, it's often that way on law school exams too.
Take this summer's first essay question on the Uniform Bar Exam (UBE), available free-of-charge at https://www.ncbex.org/July2018Essays.
The fact problem was set in the world of constitutional law. As specified in the fact problem, the essay expressly indicated that US Supreme Court had recently found that Congress was within its power under the interstate commerce clause (ICC) to punish marijuana use. On the other hand, the fact problem indicated that a number of states were (and have) legalized marijuana use both for medicinal purposes and recreational purposes.
Frustrated by state decriminalization of marijuana, the fact pattern specified that Congress enacted a federal drug abuse prevention statute. Pertinent to the essay problem, one section of the statute required state law enforcement officers to investigate whether anyone within their custody, even on matters unrelated to controlled substance violations, was under the influence of marijuana and then make reports to the federal government. The other section of the statute, as specified in the fact pattern, provided that Congress would restrict federal law enforcement grants to states which decriminalized marijuana use. The fact pattern went on to indicate that a State had recently decriminalized marijuana use and would therefore be subject to a loss of approximately $10 million dollars in annual federal grant money out of a state budget of about $600 million total of state law enforcement spending. Based on this fact pattern, bar exam applicants were told to analyze whether each of these two statutes were constitutional as applied to this particular state's situation.
Let's deal with the first statutory section - the federal requirement ordering state law enforcement officers to conduct investigations and make reports. The key to figuring out where to go, i.e., to avoid the "rabbit trail," was to write out a good issue statement, perhaps as follows:
"The issue is whether Congress had constitutional authority when it requires state law enforcement officers to conduct investigations and make reports unrelated to state law enforcement purposes."
In this fact pattern, there's no issue that Congress did not have the commerce clause power because the fact pattern foreclosed that issue, once and for all, with its initial recognition of US Supreme Court precedent specifying that Congress had the power to regulate marijuana use. And, if Congress has the power to regulate marijuana use, it certainly has powers related to that under the "necessary and proper" clause. So, the focus must be elsewhere in answering this problem. As the issue statement makes clear, it's a federalism issue, namely, whether Congress can force states to do the work of the federal government. That's a 10th Amendment issue. In brief, Congress is limited in its ability to commandeer the states, which is precisely what this first section tries to do. It's unconstitutional, at least in my reading of it.
Let's take on the second statutory section - the federal spending restriction of law enforcement grants towards states that decriminalize marijuana. Once again, the key is to start with a sharp issue to avoid the "rabbit trails." Here, we might write as follows:
"The issue is whether Congress had constitutional authority when - as applied to the state at hand in this fact pattern - Congress cut off a federal law enforcement grant in the amount of $10 million out of a state budget of $600 million in state law enforcement spending."
Do you see the issue? It's lurking in the facts stated in the issue statement. Once again, this is a federalism issue. There's no issue that Congress can't spend money for the public welfare, particularly because the state in this fact pattern wants to receive the federal grant money. Rather, the issue is whether these "strings" constitute commandeering of the states by Congress in violation of the 10th Amendment. One could probably come out either way, but I think that the better answer based on Supreme Court precedent is that spending restrictions to encourage states to enact policies and law that comport with federal law are constitutional as long as states have a real choice as to whether to enact new favorable state laws to the federal government or give up the spending grants. In this fact pattern, the amount of money that the state will lose as a result of decriminalization of marijuana is only a small percentage of the entire amount that the state spends on law enforcement, which means that the state has a real meaningful choice to take the federal grant and comply with federal objectives or to refuse the federal grant and still have significant state law enforcement funding. It's constitutional, at least in my analysis.
Despite the fact that this essay problem was centered on federalism issues based on the 10th Amendment, a number of people talked about the commerce clause or equal protection concerns, neither of which were raised by the fact pattern. I can understand why. Bar takers have memorized so much law that they tend to put all of the law that they can think of without thinking through the problem first of all, especially because of the time pressures. But, I have a tip that can help preempt that sort of "rule dump." It's writing out an old-fashioned legal writing issue statement before beginning to write.
Here's what I mean by an old-fashioned issue statement. As set out by Ruta Stropus and Charlotte Taylor in their book "Bridging the Gap Between College and Law School," a great issue statement can take on the form as follows:
"The issue is whether [legal subject-verb-object] + when + [material facts]."
Take a look back at my issue statements. Do I start with the legal issue? Do I have the legal actor as a noun, a verb, and the legal object, here, as to the unconstitutionality of congressional action? Do I then add in a handful of hand-picked material facts from the fact pattern? You bet. In my own case, if I don't take time to work through crafting such an issue statement, I'm lost in most essay problems. I just start writing in circles, moving around in "rabbit trails" so to speak, without really understanding the fact pattern at hand or the questions presented in the essay scenario. In short, I ramble.
So, whether you are a bar taker or a law student preparing for mid-term exams, take a pause before you begin to write out your essays. Hunt for some "red hot" material facts to put down in paper as an issue statement. After all, it's what lawyers do best; they spot issues, the precise issues that are needed for solving their clients' problems. So, as you learn to think like a lawyer, practice like a lawyer too by taking time out to craft, identify, and precisely specify the exact issues posed in your midterms, final exams, or your bar exam essays. It's worth the time. Indeed, you'll be mighty glad because you'll find that you'll avoid the "rabbit trails" found on most essay exams and instead you'll be finding the rabbits themselves. (Scott Johns).
Tuesday, October 16, 2018
Final exams. Olympic competition. Oral argument. Job interviews. The bar examination. These are all high-stakes experiences, often competitive, in which successful outcomes depend on strong performance. As discussed last week, in such situations the human brain can adopt different chemical and behavioral states, depending on whether the situation is perceived as a threat or as a challenge. In a threat situation, the brain becomes hyper-alert to danger and error, processes information more deliberately, and shies away from risk. In a challenge situation, the brain pays less attention to detail, processes information in a more relaxed and automatic way, and is open to taking risks that have sufficient promise of reward. How can we use our knowledge of these two mental states, not just to understand our students better, but also to help them do better?
Let's start by noting that the brain can enter these different states at different times even if it is undertaking the exact same activity. A baseball player might step up to the plate in the third inning and see his task -- to try to get a hit -- as a challenge, and the same player could step to the same plate, even holding the same baseball bat, in the ninth inning and see it as a threat. So it's not the task itself that determines our mental state. It's the surrounding circumstances. Early in the game, when the outcome is still up in the air, a player may be "gain-oriented", focusing on accruing advantages (in this case, runs), and his brain will be in challenge mode. In the last inning, though, if his team has a slim lead, that same player could shift his focus and become "prevention-oriented", focusing on maintaining his team's lead by not making mistakes of which the other team might take advantage. In that case, his brain will be in threat mode.
In the same way, our students can undertake the same activity -- issue spotting, say, or answering multiple-choice questions -- at different times, and might find themselves in either challenge mode or threat mode. This is a good thing, a useful thing. After all, human brains evolved to be capable of these two modes, so each mode ought to have some beneficial qualities.
As Po Bronson and Ashley Merryman point out in Top Dog, in an academic setting there can be an optimal sequencing to these modes. Students perform best if they start their semester working in challenge mode and end it working in threat mode.
This makes sense in a general way. At the beginning of a course, students don't know much about the subject, and their goal should be to try to gain knowledge and skill as quickly as possible. A gain orientation is associated with challenge mode -- the brain plays hunches and takes educated guesses, because the risk (primarily, to grades) is low but the potential reward (flashes of insight) is high. Towards the end of the course, though, risk increases, as the student faces more heavily weighted final exams. At the same time, rewards are lessened, since (ideally) the student has already internalized most of the material and is not likely to learn a great deal more. On a final exam, a student is more likely to be in threat mode -- pondering the answer more slowly and cautiously, less inclined to make risky arguments, perhaps even debating word choice as he tries to recall the exact wording of a rule.
If a student is well-prepared for the final exam, proceeding cautiously with their mind in threat mode may be quite favorable. It can encourage methodical analysis, and help the student avoid unnecessary errors. However, there are two potential issues to consider.
First, as alluded to above, there are two sources of risk and reward in law school. One is the knowledge and understanding of the subject matter, and the other is the final grade in the class. A student who downplays either source is at a disadvantage. Reminding students to pay attention to learning the rules and how to use them, and to developing their test-taking skills at the same time, is part of what Academic Success is about. Being able to describe these abilities as complementary sources of risk and reward may provide us with another way of doing that.
Second, while being in threat mode may help a student avoid errors, they still may not perform well if they only enter threat mode for the first time in the final exam. Since threat mode slows analysis and limits the options the brain is willing to consider, it can change the way people behave during exams. We have doubtless all had students who felt confident in a subject all semester and then did poorly on their final, later explaining that they thought of some of the correct responses but abandoned them because they were afraid they might be wrong, and that they spent so much time working on the first half of the exam that they didn't have time to complete the second half. While there are several plausible explanations for such mistakes, one possibility for them to consider is that they had never practiced answering questions in that course in threat mode. If all of their practice was under the speedier, more relaxed challenge mode, then they had never really practiced under exam conditions.
Ideally, humans would have a switch we could activate to shift from challenge mode to threat mode and back. But, while we don't, it is nevertheless possible for professors to influence students and help shift them into threat mode. As Bronson and Merryman explain, teachers can affect their students' brains just by changing the way they present their examinations. If students are given a test and told that they will receive a certain number of points for every correct answer, then they focus more on the idea of gaining points, which encourages a gain orientation and thus a challenge mode. If, on the other hand, students are given a test and told that their scores start at 100 and that they will lose a certain number of points for every correct answer, then they focus more on not losing points, which encourages a prevention orientation and a threat mode. Even though mathematically the two scoring systems were identical, the differences in presentation caused measurable differences in performance.
Thus, one way to encourage our students to practice for final exams (and oral arguments, bar exams, etc.) in threat mode is to explain, in advance, that you will be scoring their practice work by subtracting points from a pre-determined maximum score. Conversely, students who fall into threat mode too early in the semester, perhaps because they are disproportionately worried about grade risk, might be coaxed towards challenge mode by being given exercises for which they will receive a certain number of points for every plausible point or argument. Even though the tasks the students are undertaking remain the same, we can help their brains approach them differently.
Sunday, October 14, 2018
Have you seen the new publication from AccessLex Institute titled Raising the Bar? The first issue includes a mix of articles on conferences, publications, tips, grant information, resources, program profiles, and more. If you missed the first issue, the link is here. (Amy Jarmon)
Thursday, October 11, 2018
It's that time of year. In the midst of many celebrations over bar passage, let's be frank.
There are many that are not celebrating. Their names were not on the list of bar exam passers. And, for some, it's not the first time that they've found themselves in this situation; it's a repeat of the last time around.
For aspiring attorneys that did not pass the bar exam, most don't know where to turn. Often embarrassed, many with significant debt loads, most feel abandoned by their schools, their friends, and their colleagues. All alone.
I'm not expert in helping with turnarounds. But, I'd like to offer a few tips that have proven quite helpful in helping repeaters change history to become "fresh start" bar passers:
First, as academic support professionals, reach out to each one. Make yourself available on their terms. Let them know that you care. Let them know that you are mighty proud of them, success or not. Support them, one and all.
Second, give them breathing room, lot's of time and space to grieve. Don't push them into diving back into the books. Don't lecture them. Rather, assure them that they don't need to get cranking on their studies. Help them to be kind to themselves. It's not a matter of just hitting the books again, and this time, doubly-hard. Instead, they need to take time out to just be themselves.
Third, when they are ready, set up a "one-with-one." Notice: I did not call it a "one-to-one". Rather, set up an appointment or meeting in a place of their choosing at a time that works for them in which you sit side by side, on the same side of the table or desk or cafe. They are not bar exam failures; they are real law school graduates. They earned their parchments. So, listen to them as colleagues on the same side of doing battle on the bar exam. Let them talk and express themselves as they'd like. Hear them out. How are they feeling? What went right? What's their passion? What saddens their hearts?
Finally, whey they are ready, make a copy of one of the essay problems that didn't go so well. Better yet, make two copies, one for each of you! That's because you are on the same team. Set aside 15 or 20 minutes and just ask them to mark up the question, brainstorm what they are thinking, and jot down the issues that they see. But...and this is important...tell them that you don't expect them to remember any law at all. Period. And, you do the same. Exactly the same. Don't peek at an answer key or even their answer. Instead, try your hand too; wrestle with the same question that they are wrestling with. Then, come back together to listen, ponder, and share what you both see as the plot of the essay question, the issues raised by the storylines, and the potential rules that might be in play. Once you've done all this prep work together, now, look at their answer. This is important, just look. Ask them what do they see? What do they observe? What went great for them? Where might they improve? In short, let them see that they have "inside information" about themselves based on their own personal bar exam experience and answers that they can capitalize to their advantage. Most often in the midst of working together, graduates tell me that they realize that they knew plenty of law to pass the bar exam. In fact, most are amazed at how well they memorized the law. And, that's great news because it means that they don't need to redo the bar review lectures at all. They know plenty of law. That frees up lots of time during the bar prep season to instead concentrate on just two (2) active learning tasks.
So, here are the two activities that bar re-takers should be prioritizing to successful pass the bar exam:
1. First, they should work daily throughout the bar study period through lots and lots of practice problems (essays and MBE questions). Every one that they can get their hands on. Open book is fine. It's even better than fine; it's perfect because they should be practicing problems to learn because we don't get better at problem-solving by guessing.
2. Second, they should keep a daily "journal" of the issues and rules that they missed when working over problems (to include tips about the analysis of those rules).
Just two steps. That's it. There's no magic. But, in not redoing the lectures, graduates will find that they have plenty of time to concentrate on what is really important - learning by doing through active reflective daily practice. Countless times, it's through this process of a "one-with-one" meeting that we have seen repeaters turn themselves into "fresh start" bar passers.
Finally, I want to write directly to those of you who find yourself in the situation of having to re-take the bar exam. You really aren't alone. Need proof? Here's a short video clip put together by the Colorado Supreme Court about re-taking the bar exam to include a few tips from some jurists and practitioners that have been in your shoes. (Scott Johns)
Tuesday, October 9, 2018
In the 1994 Winter Olympic Games in Lillehammer, Norway, the Japanese ski jumping team was having a very good day. After seven jumps, it had racked up a score so high that no one believed they could lose. The team’s final jumper, Masahiko Harada, who had already landed a jump of 122 meters on his first jump, only needed to jump 105 meters on his second to clinch the gold medal. But Harada faltered. His jump was not well executed, and he only managed to get to 97.5 meters before his skis touched the ground. The Japanese team ended up with the silver medal, finishing behind the German team.
Four years later, the Winter Olympics were being held in Nagano, Japan, and, once again, Masahiko Harada was on the team. He and the team were hoping to redeem themselves, and, of course, all eyes were on them as the home team. Harada was no longer the team anchor, so it was hoped that, without the pressure of having to be the final jumper for the team, he would perform at the Games as well as the team knew he could in practice. The first two jumpers did extremely well, putting the Japanese team in first place. But then Harada . . . did even worse than he had at Lillehammer, achieving a distance of only 79.5 meters on his first jump. The team fell to fourth place.
Things looked bad until Takanobu Okabe landed an Olympic record-setting 137-meter jump on his second attempt, bringing the Japanese team back into contention. They weren’t back in the lead, but at least they had a chance for a medal. And now it was Harada’s turn again. In his last two Olympic jumps, when he just needed to not screw up to keep the team in position, he screwed up. Now, if he wanted to help the team get a medal, he had to do more than not screw up. He had to excel.
And he did. He tied Okabe’s record, making his own 137-meter jump, and sending the Japanese team into first place. They would go on to win the gold medal in the event.
How did all of that happen? Why did Harada jump poorly in his last jump in Lillehammer, and his first jump in Nagano, but then manage to jump exceptionally well in his second Nagano jump? The stakes were high – Olympic gold – all three times, so surely there was always enormous pressure on him. What made the difference?
It might be easier to explain the difference if we consider, not the stakes, but the positions in which Harada found himself. In his second 1994 jump and his first 1998 jump, his team was in first place. He knew he had to perform to a certain level to maintain his team’s position. Expectations were high, but he didn’t have to do unusually well. He was just focusing on not making a mistake, because this situation was a threat to his (and his team’s) position.
In contrast, by the time he’d reached his second 1998, his team was no longer in first place. They weren’t expecting to win, but, thanks to Okabe’s big jump, at least they had a chance. Harada had less to lose, and good reason to allow himself to take risks, because there was more upside than downside to doing so. This situation was not a threat to his position; it was a challenge.
In their book Top Dog: The Science of Winning and Losing, Po Bronson and Ashley Merryman explain that there are physical differences between the way our brains react when we view a situation as a threat and the way they react when we view a situation as a challenge. In a threat situation, there is an increase in activity in the medial prefrontal cortex, the part of the brain that is associated with more deliberate and less automatic decision making. At the same time, the parts of the brain that watch out for external dangers (the left temporoparietal junction) and for internal errors in judgment (the anterior cingulate cortex) also become more engaged. Also, as activity in the amygdala increases, the brain becomes more sensitized to avoiding risk than to seeking reward.
In a sense, your brain starts paying closer attention to everything you see and do, and it clamps down on behaviors it perceives as potentially risky. In playing it safe, though, your brain limits the scope of the choices you feel comfortable making, which in turn shrinks the range of performance of which you are capable. When Harada was going for the 105-meter jump for gold in Lillehammer, his brain was subconsciously refusing to allow him to take actions – picking up more speed, jumping off closer to the end of the ramp – that would have given him great distance, but also would have carried an increased risk of falling. The cumulative effect of all those refusals made him, in a very real sense, incapable of performing anywhere near his best. In other circumstances, this would have been of little consequence -- 97.5 meters was by no means the worst jump in the Olympics that year, and it was probably several dozen meters longer than you or I could have managed. But in high-level competition, seeing the jump as a threat robbed Harada of the ability to show the world what he was capable of, and left him and his team wanting in comparison to the Germans.
In contrast, when you see something as a challenge, your brain takes on an entirely different set of characteristics. Hormones are released in the brain that dampen the activity in the left tempororparietal junction, the anterior cingulate cortex, and the amygdala, so you expend less energy and attention watching out for dangers, errors, and risks. Instead, your decision making starts to flow more easily and automatically; you rely on expertise and habit rather than stopping to deliberate over every choice. And when risks are perceived, they are not automatically shunned; instead, your brain attends to both the potential losses and the potential gains, and is open to taking the risks when the gains are great enough. When Harada was preparing to take his second jump in Nagano, he was no longer trying to protect his team's first-place position, so he didn't see the jump as a threat. He was able to look at it as a challenge -- Let me see how much I can obtain from this -- and, subconsciously, that freed up his range of behaviors to choose from. Only when his brain allowed him access to all the skills and knowledge he had acquired was he able to achieve the exceptional result he hoped for.
* * * * *
No doubt you smart people have already noticed the resemblances between Harada's performances and those of some of our law students, especially the ones who sometimes seem not to perform to the level of which they are capable. Whether students view tests, oral presentations, and other ordeals as "threats" or as "challenges" can have powerful effects on their performance. As we will see next week, though, threat stances and challenge stances both have a place in legal study, and there are ways that we, as teachers, can help students take the right stances at the right times.
Monday, September 24, 2018
The most recent bar results are reverberating throughout the country. The data collected and distributed by Nancy Reeves the past week is illuminating. From what I can tell, only 2 states currently have first-time pass rates at or above last year. The national MBE average is the lowest since the 80’s. Another round of complaints and accusations aimed at the MBE are starting, especially since scaling essays to the MBE magnifies the impact of the dropping score. My advice to students, ignore the chatter and start preparing now.
I love to complain about the MBE. I think the NCBE’s monopoly on bar licensing tests makes them unresponsive, and the lack of statistical specialists in testing at law schools makes combatting their perceived experts difficult. Supreme Courts’ skepticism of law schools’ motivation amplifies the problem. I believe the NCBE through changes to the MBE (25 non-scored questions, subject matter changes, Civil Procedure addition, style changes, etc.) have made the test harder than it has ever been, and they continually ignore well-established scientific principles (ie – cognitive load theory) that call into question the validity of current MBE scores. My beliefs could be 100% correct, but the reality is alumni still have to take the MBE on February 27th or July 31st.
If MBE complaints are valid, students should respond by starting preparation. In general, changes to legal education and bar exams take forever. The complaints of Deans, Law Schools, and alumni will most likely not change the upcoming exams. The arguments could be correct, which means the upcoming MBE administrations will continue to be difficult with possible lower scores. Students will need more questions correct to pass. I highly encourage starting now to prepare for a much more difficult test.
The MBE requires unique skills to pass the exam, but the foundation for passing the test is still knowledge of the law. Without an understanding of the law, getting to the right answer is more difficult. Both February and July takers can start now refreshing memory of the law. I suggest trying to get a big picture 10,000 foot view of each MBE subject. Knowing the organization or schema for each subject will provide the context to help memorize rules. I then suggest looking through material in highly tested sub-topics for each subject (ie – Negligence, Hearsay, Free Speech, etc.). Many bar review companies will provide early start lectures or outlines or both. Use the material to identify areas to work through.
Additional work throughout the semester is important for February takers. I suggest focusing on 1 subject per week by looking through the material suggested above, completing a few practice MBE questions, and issue spotting 1 practice essay question. The key is to get some of the law and see how it is tested.
July takers shouldn’t spend as much time this semester, but refreshing the law is a good start. My suggestion is to watch the short lectures or look at highly tested material for a short amount of time. The goal is not memorization that lasts for 10 months. The goal is refreshing memory of already learned law and understanding the schema.
The current tasks may be different for February and July takers, but my advice for both is the same. Now is the time to start preparing. If the MBE will be as hard as we all predict, then don’t wait to prepare for the test. However, don’t overwork and burn out now. My suggestion is only for 2-3 hours a week, but 2-3 hours over 7-8 weeks left in the semester can make a huge difference.
The hype and complaints may be true, but students will still be taking the bar in February and July. One ingredient for overcoming the difficulty is early preparation with hard work. To finish using a sports analogy (I couldn’t do a post without it), leave it all out on the field. Anything can happen on the bar exam, but if you can walk out of the room and say you did everything you could reasonably do to prepare, then that is what matters. Start that preparation now, and you can pass the bar!
Thursday, September 20, 2018
According to the American Bar Association (ABA), citing to Law.com and TaxProfBlog editor Dean Paul Caron, the national average score on the MBE multiple-choice portion of the July bar exam dropped to its lowest level in 34 years. http://www.abajournal.com; https://www.law.com; http://taxprof.typepad.com. The National Conference of Bar Examiners (NCBE) reports that the July 2018 MBE average score was just 139.5, while for the July 1984 exam, Law.com reports that the MBE average score was likewise low at 139.21. http://www.ncbex.org/news; https://www.law.com.
In an article by Law.com, the President of the NCBE - Judith Gundersen - is quoted as saying that "they [this summer's lower MBE scores] are what would be expected given the number of applicants and LSAT 25th percentile means of the 2015 entering class." https://www.law.com. In other words, according to the NCBE, this summer's low score average is the result of law school admissions decisions based on the NCBE's appraisal of 25 percentile LSAT data for entering 2015 law students.
Nevertheless, despite the NCBE's claim, which was previously theorized by the NCBE back in 2015 (namely, that bar exam declines are related to LSAT declines), previous empirical research found a lack of empirical support for the NCBE's LSAT claim, albeit limited to one jurisdiction, one law school's population, and admittedly not updated to reflect this summer's bar exam results. Testing the Testers.
As an armchair statistician with a mathematics background, I am leery of one-size-fits-all empirical claims. Life is complex and learning is nuanced. Conceivably, there are many factors at play that might account for bar exam results in particular cases, with many factors not ascribable to pure mathematical calculus, such as the leaking roof in the middle of the first day of the Colorado bar exam. http://www.abajournal.com/news/article/ceiling_leaks_pause_colorado_bar_exam.
Here's just a few possible considerations:
• The increase to 25 experimental questions embedded within the set of 200 MBE multiple-choice questions (in comparison to previous test versions with only 10 experimental questions embedded).
• The addition of Federal Civil Procedure as a relatively recent MBE subject to the MBE's panoply of subjects tested.
• The apparent rising incidences of anxiety, depression, and learning disabilities found within law school populations and graduates.
• The economic barriers to securing bar exam testing accommodations despite longitudinal evidence of law school testing accommodations.
• The influence of social media, the internet age, and smart phones in impacting the learning environment.
• The difficulty in equating previous versions of bar exams with current versions of bar exams given changes in the exam instrument itself and the scope of subject matter tested.
• The relationship among experiential learning, doctrinal, and legal writing courses and bar exam outcomes.
Consequently, in my opinion, there's a great need (and a great opportunity) for law schools to collaborate with bar examiners to hypothesize, research, and evaluate what's really going on with the bar exam. It might be the LSAT, as the NCBE claims. But, most problems in life are much more complicated. So, as a visual jumpstart to help law schools and bar examiners brainstorm possible solutions, here's a handy chart depicting the overall downward trend with respect to the past ten years of national MBE average scores. (Scott Johns).
September 20, 2018 in Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Exams - Studying, Exams - Theory, Stress & Anxiety, Study Tips - General | Permalink | Comments (0)
Tuesday, August 7, 2018
I attended the Southeastern Association of Law Schools (SEALS) Conference earlier this week. On Monday, August 6, 2018, the conference schedule included two bar preparation strategy sessions. Here are my takeaways from those two sessions.
The first session was a panel discussion entitled "Bar Preparation Strategies for Law Professors and Academic Support Program."
Professor James McGrath of Texas A&M University School of Law used an IF-AT quiz to frame his discussion about how spaced repetition and self-efficacy are essential components to bar exam success. Next, Professor Kirsha Trychta of West Virginia University College of Law introduced ways to mobilize students, faculty, and staff to become soldiers in both academic support and bar preparation efforts. The session concluded with Professor Patrick Gould of Appalachian School of Law demonstrating how to methodically work through a MBE practice problem and how to spot legal issues. Professor Melissa Essary of Campbell University's Norman Adrian Wiggins School of Law expertly moderated the program.
After the panel presentation, attendees engaged in a lively round-table discussion focused on "Strategies for Bar Preparation and Success."
Each participant had 10-12 minutes to discuss a bar preparation related issue or topic that was of interest to them. More than 30 discussants attended the session, including academic support and bar preparation professors, commercial course providers, and deans. (The session was standing room only!) Of those in attendance, roughly half of the group raised discussion topics. While the full agenda—including the presenters’ school affiliation, contact information, and formal presentation title—is available here (Download BAR PASSAGE SPEAKER SCHEDULE Revised 3), I’ve set forth a brief summary below. If a discussion item sounds interesting to you, I encourage you to reach out to the presenter. Every presenter warmly invited questions and comments.
Bob Keuhn is authoring a research paper on the results of a recent large-scale empirical study, where he found little evidence that clinical or experiential coursework helps students pass the bar exam, contrary to popular belief.
James McGrath offered five quick tips for improving classroom teaching, including adding formative assessment activities directly on the course syllabus so that quizzes and reflection exercises become an essential and routine component of the course.
Michael Barry & Zoe Niesel outlined how they “went big” and dared to “be bold” overhauling and expanding their ASP program. They proactively asked for input from faculty, the advancement (i.e. fundraising) department, career services, and others before moving forward.
Benjamin Madison focused on self-directed learning, and emphasized the importance of incorporation skills building, especially in the first-year, to help students become better self-directed learners. He recommended Dean Michael Hunter Schwartz’s book as a jumpstart.
Ron Rychlak shared his experience with bar passage efforts at two (very) different law schools: Ole’ Miss and Ava Maria. He tinkered with requiring more bar-tested electives, increasing the probation cut-off GPA, and adding more academic support style-courses in the first two years.
Antonia Miceli redesigned her third-year bar course from an “opt in” (i.e. invitation to enroll) to an “opt out” model. All students in the bottom third of the class are now automatically enrolled, and the student must proactively petition to opt out of the course—which has positively increased her overall enrollment.
Debra Moss Vollweiler has spent the last few years as a member of a Florida bar passage focus group, and is now advancing the 3-Ms model: master in 1L, manipulate in 2L, and memorize in 3L. The 3M model aligns with her law school’s newly revised learning outcomes.
Cassie Christopher debuted her online 3-credit, graded, MBE course, which is open to all graduating students. Students watch an online video created by in-house doctrinal faculty, read the required textbook, complete practice MBEs, and engage in a discussion board each week.
Kirsha Trychta asked for attendees’ input on ways to mobilize the entire faculty in bar preparation. Discussants suggested incorporating the MPT into a clinical course, asking faculty to guest lecture, making a practice essay and MBE database on TWEN, inviting outside third-party speakers, and involving the assessment committee in programmatic decision making.
Rob McFarland highlighted a recent (and controversial) conversation online, directed at law school hopefuls, about whether an LSAT score accurately predicts bar passage success.
Laurie Zimet proposed that law schools should (1) educate the entire law school community about the bar exam and invite each person to contribute where they could, and (2) provide an opportunity for students to diagnosis weaknesses, with sufficient time for remediation.
Melissa Essary designed a new course—in just a few months—which offered academic credit for a graded, in-house faculty taught, one semester, flipped classroom MBE bar preparation course, supplemented by Barbri videos and materials.
Patrick Gould, the session’s moderator, concluded by thanking Russel Weaver for hosting us, and encouraging everyone to brainstorm about what we can do next year to make the event even better.
Well done, team!
Thursday, July 19, 2018
Attention Bar Takers:
Here's a couple of short winning tips for your final weekend flight plan checks as you prepare for success on your bar exam next week!
I. Focus on a Winning Attitude:
First, remind yourself right now why you can pass the bar exam...because, after all, you've been trained as an attorney.
That's right. Boldy recognize that out of all of the people in the world, you are one of the very few who have earned a law degree. Yep...YOU'VE earned your law degree, having successfully demonstrated that YOU know how to solve legal problems. That doesn't mean that you know it all (nor that you need to know it all for your bar exam). But, you do know how to read and ponder and analyze and write and communicate as an attorney because you've been trained - for over the course of three years - to think and, more significantly, be an attorney.
So, as Professor Chad Noreuil says, look forward to your bar exam next week as a "get-to" opportunity rather than a "got-to" threat. That's because this is YOUR moment to show YOUR state Supreme Court that YOU are professionally-trained attorney.
II. Rehearsing Your Lines:
Second, keep your focus on positive learning throughout this weekend as you...
YOUR BIG PICTURE RULES FOR YOUR BAR EXAM NEXT WEEK!
In other words, don't think of memorization as dry and dusty work.
Rather, consider memorization as theatre work.
Just like actors, carry your script (your study tool) with you in hand, personally by your side, ready to swing into your eyesight, as you walk through the major issues and rules for each subject. Move swiftly. Your goal on Saturday is to work through each subject in well under an hour or much less. Then, do the same for each subject on Sunday.
Here's a Tip - Less is More!
Stick with talking, singing, or acting out only the big picture rules. Don't dive deep. In other words, just state the rule for burglary but don't practice the definitions for each of the elements. Then, do it again...quicker. On Sunday, grab those study tools and once again work through each subject - one at a time - with freedom and abandon to peek at your study tools.
The Memory Power of Peeking!
Too many people don't want to peek. But here's the secret to memorization (based on the famous saying that a "peek is worth a thousand words").
When we peek, we visually see where the rule is on our study tool and how it is organized and positioned. As the learning scientists indicate, we tend to comprehend (a.k.a., remember) things better when we see them in text (whether in our set of notecards or outlines or posters) because the visual position of the words creates meaning for us. And, memorization is just about creating memories with your study tools. So, be a memory creator this weekend.
Finally, I would be remise if I didn't talk about Monday (also known as the "day before the exam").
If you can't help yourself, feel free to review your study tools. But, most certainly don't do any more practice problems. And, definitely don't work on memorizing your study tools. Just skim through them.
And, if at all possible, take the day off. I mean the whole day. From start to finish.
Recognize that brainwork - just like exercise in preparation for a marathon - requires rest and relaxation time the day before a big event in order to rejuvenate and refresh.
So, be extra kind to yourself, my dear doctor of jurisprudence, and splurge with some good old fashioned R&R. And, good luck on your bar exam next week! (Scott Johns)
Wednesday, July 18, 2018
At this time, I see or hear from many panicked soon-to-be Bar Takers communicating their intent not to sit for the bar exam because they just do not feel prepared. It is unusual for me to have a conversation about skipping the bar exam with a soon-to-be Bar Taker I genuinely believe is unprepared or might not be able to manage the pressures of the bar exam. Usually, students who are so mentally paralyzed by the thought of sitting for the exam are not known to articulate their intent. Instead, they simply do not show for the exam, something I hear after the fact, or I notice once bar results are posted.
Typically, individuals who have endured life, personal, financial, work, and/or health challenges throughout bar review are not the ones looking to postpone the bar exam. Based on my communications throughout bar review with persons in this category, I find that they have already wrestled with feelings of unpreparedness throughout the summer and they have continuously adjusted and readjusted their schedules to ensure bar review progress. When past soon-to-be Bar Takers have opted not to sit for the bar exam, it has occurred very early in the process, around the first few weeks of bar review. Whenever the option was exercised later in the bar review process, it was due to familial, personal, health-related, or other emergencies. As a rule of thumb, whenever the decision not to sit for the bar exam is made, we immediately and honestly consider individual situations, explore implications of the decision, and start to discuss a plan for moving forward.
Experiencing acute levels of stress a week before the bar exam is a normal occurrence but when it becomes debilitating, then it is a critical challenge. Stress is an unavoidable aspect of the bar preparation process but it should motivate, not dominate. Recently, I observed that a larger number of soon-to-be Bar Takers have difficulty managing stress. Some who were able to navigate stress throughout law school are now experiencing difficulties preparing for the bar exam. The bar exam is a beast they are unable to tame and might need additional resources or medication to cope with the high levels of anxiety and its impact on their preparation. Addressing concerns early, if at all possible, can have a positive impact on managing stress and anxiety during bar preparation.
If you are contemplating postponing the bar exam, there is no formula you can use to guarantee success on the bar exam. I am well aware that there are percentages of bar review completion, percentages one should attain on the MBE, scores on the essays and MPTs that help set goals and gauge current performance but these are no guarantee. Quality over quantity, self-awareness of individual needs and making adjustments, and a positive and forward-looking attitude are key. It is also important to assess where you are and whether you covered all of the substantive material, whether you have an awareness (general knowledge and familiarity) or whether you understand (deeper knowledge and ability to explain and write) concepts and ideas. Assess whether you completed a majority of the assigned essays, MPTs, and MBEs but more importantly ask whether you are driven by fear or do you really not know the information. A more poignant question to ask is whether waiting longer, studying longer, and taking the exam later is the best option for you. Develop a plan.
In my experience, some students simply need more time to adjust to bar preparation, to the pace of bar review, to process the information, to dissect answers, and to revisit material. Some students just need more time to adjust to the whole idea of the bar exam and its implications on their lives. These may be valid reasons that should not simply be used as an excuse. Furthermore, over-studying and complacency are things an individual who postpones the bar exam needs to contemplate. Be comfortable with your decision and move forward. (Goldie Pritchard)
Tuesday, July 17, 2018
This past week, I uncharacteristically watched a lot of reality television show competitions—mostly, Big Brother and Project Runway. Somewhere around hour six of my binge, I had a revelation. Bar exam studiers could learn a few things from the contestants on reality TV game shows. Both reality TV competitions and the bar exam studiers cram a lot of learning and formative assessment opportunities into a very short period of time. Those who learn and adjust succeed.
- Figure out which character you are.
Many reality TV contestants fit one of a few well-defined molds. For example, there is:
- The Leader – This person believes in themselves, even when others do not. They possess a confidence that is objectively justified. In Big Brother terms, this is called “The Rachel.” Everyone loves (and loves to hate) Rachel. This person will go quite far in the game.
- The Crier – This person cries, a lot. But have no fear. They will make it to the final found. They possess the substantive skills to succeed, and will succeed so long as they can focus on the task at hand.
- The Floater – This person fails to commit to any particular side. When presented with a hypothetical, they waffle. But, as Rachel Reilly of Big Brother’s Season 12 famously said “Floaters, you better grab a life vest.” If these folks pick a horse, then they undoubtedly survive another week.
- The Fainter – This person doesn’t take care of themselves. This person fails to get good sleep, eat well, or manage their stress. They will eventually faint due to exhaustion. This person can be successful if they regroup and care for themselves, properly.
- The Middle - This person is typically forgettable on reality TV. They don't win challenges, and they don't come in last place either. They don't cause drama; instead they just put their head down and play the game. This person will do just fine--even if no one is watching.
- The Weak Link – This person fails to win any challenges. This person is constantly placed “on the chopping block” because of their sub-par performances. This person is legitimately at-risk.
Bar exam studiers are no different. The key to success is to recognize the role you are playing and adjust accordingly. Just like on Big Brother, leaders, criers, floaters, middlers, and even fainters can succeed with the proper planning. Simply be self-aware and thoughtful about how you want the season to progress.
- Learn to cut off the outside world.
Everyone on reality competitions is isolated from the outside world. The competitors do not have access to social media or the internet. They rarely speak to loved ones. They live in a bubble. While I do not recommend such an existence for most people, most days. For law students studying for the bar exam, it is a potentially glorious plan. For optimal success, most studiers should stay singularly focused on their task – the bar exam. Forget about Facebook, Google, and Big Brother. I promise you, the internet will still exist in August. So, until then, just put up an “out of office” message and get studying!
- Develop a “showmance.”
On reality competitions, “showmances” and “bromances” are common. Showmances are formed when two contestants bond together—sometimes romantically—during the show’s short production. Two challengers lend support to one another for the purposes of mutual success in the competition. While showmances are sometimes mocked by the viewing audience, they do offer numerous strategical benefits to the competitors. Similarly, when studying for the bar exam, forming a deep, mutually beneficial relationship with another bar studier is advisable. The two studiers can help keep each other on task, and offer a sounding board for test-taking ideas and substantive rules. In short, look for a friend or significant other with which to commiserate and cerebrate.
Best of luck competitors! (Kirsha Trychta)
Monday, July 16, 2018
This is the last lap, final stretch, 4th quarter, and any other sports metaphor that indicates you are almost finished! Everyone is burned out now. Use the last week to practice and get mentally ready.
Most students have 1 of 2 feelings right now. Half my students want another 2 weeks to study the material. The other half want to take it right now. Those are normal feelings. Either way, take a deep breath and proceed to put in one more week of quality effort.
Here are my few tips for the last week:
- Spend time practicing. I talk to students each summer who think they need to memorize just a little more law. I understand the feeling, but no one can memorize all the material for the exam. Keep doing MBE questions each day to maintain scores, and also, look through essays. My suggestion is to write out an essay answer for each subject. After that, issue spot and read the model answer for a handful more.
- Get your body on the exam schedule. I suggest waking up at the exact time when you will wake up on exam day. Get ready just like the exam and eat food at the break times of the exam. Getting a good body rhythm can make a huge difference. You don’t want your brain to be used to waking up at 10am if the essays start at 9am. Don’t miss points trying to wake up.
- Tell yourself every morning, “I will pass the bar next week!” Write notes on mirrors, refrigerators, or anywhere else you will ready daily. High self-confidence can increase scores by a handful of points. I see scores right above and right below the pass line every summer. A handful of points makes a huge difference.
- Lastly, don’t study past noon the day before the exam. My suggestion is to take the whole day off. Enjoy time outside or a bad movie. The mental recharge is better than the last few hours of studying.
The marathon is almost over. Keep up the hard work for one more week.
Wednesday, July 11, 2018
As we enter the final days of bar preparation, emotions run very high. Students who appeared to manage stress well are falling apart and the realization that the bar exam marks the end of their education career engenders fears of “adulting”. Other fears, concerns, and physical manifestations also seem to permeate day to day bar preparation. As a Bar Support office, we are keenly aware of student panic and stress about the bar exam and are equally sensitive to both expected and unexpected personal and other concerns. Below are a few issues students can contend with:
• Family and friends interfere. Well-intentioned family members and friends think this is an ideal time to conduct internet searches about the bar exam and share all of the scary details they uncover with the person studying for the bar exam. Shared information relates to bar pass rates, horror stories about preparing for the exam, and countless comments from students on various blogs and discussion groups. Some students studying for the bar exam are able to dismiss this information while others obsess over it and are derailed. This usually leads to mornings spent dispelling myths, putting information in context, and/or reminding individuals studying for the bar exam that they still have control over their fate. Moreover, if family and friends are a source of stress and panic then this probably is the time to stay away from them but also tell them what you need and don’t need.
• My body hates me. I have to admit that lately, I have heard many gruesome stories about physical manifestations of stress and negative physical reactions to food. I will not share all of these here but students should be aware of what is going on with them physically. Certain ailments or discomforts might require you to take immediate action, others might require you to live with them until the exam is over, and yet others may only be address after the bar exam.
• I hate you right now. As individual meetings with students end and we complete the final essays, mini-Multistate Bar Exams, or Multistate Performance Tests together, I try to select areas or things that particular students have expressed challenges with. A few students I have worked with throughout most of their law school careers often say: “no disrespect but I hate you right now.” I laugh and usually say: “I am here for that.” If our goal is to make weaknesses strengths then I will prey on all of the student’s weaknesses because it is possible that those very things will appear on the bar exam. It is also a good time to discuss how to manage areas of limited or no knowledge but still be able to focus enough and move on to the questions they are confident in.
• Unconquerable fatigue. I hear more and more about chronic fatigue, sleep/rest that does not seem to result in refreshing energy, and insomnia all this results in lack of focus, feeling overwhelmed, and inability to be efficient or effective in completing tasks. Students appreciate when I affirm the difficulty of getting true rest and acknowledge productivity challenges but I also remind students that they are not alone. Students cannot perform to their optimal ability until they rest. I admonish them to tap into all the knowledge stored up and to do this, they might want to get some rest now because the day before the bar exam might be a significant challenge.
Every challenge makes you stronger! (Goldie Pritchard)