Friday, October 1, 2021

ASP Exciting Works in Progress

This weekend, I attended the Central States Law Schools Association Scholarship Conference and ASP was well-represented. each speaker gave a talk highlighting their current works and sought feedback from the audience of faculty members. Here is just a sampling of the ASP presentations:

Cassie Christopher, Texas Tech School of Law
A Modern Diploma Privilege: A Path Rather Than a Gate

Michele Cooley, IU McKinney School of Law
But I’m Paying for This!: Student Consumerism and Its Impact on
Academic and Bar Support

Danielle Kocal, Pace Law School
A Professor's Guide to Teaching Gen Z

Blake Klinkner, Washburn School of Law
Is Discovery Becoming More Proportional? A Quantitative Assessment of
Discovery Orders Following the 2015 Proportionality Amendment to
Federal Rule of Civil Procedure 26

Leila Lawlor, Georgia State College of Law
Comparative Analysis of Graduation and Retention Rates

Chris Payne-Tsoupros
Curricular Tracking as a Denial of the “Free Appropriate Public Education”
Guaranteed to Students with Disabilities under the IDEA

I was delighted to see so many ASPers presenting Works in Progress, and I cannot wait to read and cite your published works! 

(Marsha Griggs)

October 1, 2021 in Academic Support Spotlight, Bar Exams, Guest Column, Meetings, News, Publishing, Writing | Permalink | Comments (0)

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: https://lawprofessors.typepad.com/academic_support/2021/02/memorization-v-understanding.html

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

Here is a little timeline to help:

Four Days Before the Bar Exam

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

Three Days Before the Bar Exam

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

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

Two Days Before the Bar Exam

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

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

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

One Day Before the Bar Exam

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

You also want to make sure you have everything ready for tomorrow. What types of ID do you need? What are you allowed to bring in with you to the exam? Make sure to have all those items pulled together and ready to go. Make sure your laptop is fully charged. And as silly as it sounds, map out how you will get to the exam location (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)

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: https://www.cali.org/lesson/18101

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!   http://www.wsj.com/articles/how-surgeons-stay-focused-for-hours-1479310052  

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 hand...by 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 distractions...so 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 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)

Wednesday, December 2, 2020

So You Failed The Bar.....

I write this, or some variation of it, a few times a year. And I do so because I feel passionately that it needs to be heard. Many of you are getting Bar Exam Results right now, and if the news is good, great! Congrats! However, for some of you, the news is less than idea. That's ok too. Read on!

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

So, take a few days to be upset, it’s ok. Also, remind yourself that you are in a pandemic! And for most of you, the goal posts around the exam kept changing. There was so much extra stress involved in this last Bar Exam, and to be honest, so much extra stress in life. Sure, you might be sitting here thinking that you don't want to make excuses, and that's admirable. But, this isn't an excuse, it's reality. You were likely studying for, or taking the exam, in less than ideal circumstances. So, given that, cut yourself some slack.

Then, remember that you don't owe anyone an explanation. No one. Yes, you have a duty to be honest. If you currently have a law related job, or are in the hiring process, yes, you have to tell your employer or future employer. And you can't pretend to be licensed when you are not. But beyond that, you don't have to explain this to well meaning family or friends, or anyone else. However, you also want to trust me when I say that more people will understand than you think, and very few people will judge. 

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

FIRST: Look at your score (if your state gives you the breakdown) and request back your essays (if you can). It's going to be hard, you likely don't want to look back. But you can learn so much from those scores and the essays!

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

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

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

NEXT: Think about external factors, ya know, like a pandemic!

Did something unrelated to the bar impact your studying? Perhaps a health issue, physical or mental? Perhaps a family emergency, or ongoing family issues? Did you have a good place to study? Or time? Much of this might have been beyond your control, and it might feel like you are searching for excuses, but really,  you are analyzing the situation so you can create a plan moving forward. 

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

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

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

REVIEW: Your study habits!

The most important thing you can do is practice. Many bar students get caught up in trying to memorize every sing law, or master every subject. While this is admirable, and takes quite a bit of time and effort. However, mastering the bar is a SKILL. You need to practice. When I work with repeat takers, I often find that they knew the law, and they studied hard, but didn’t practice enough essays or enough timed MBE.

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

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

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

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

FINALLY: Meet with your Academic Success Professor, if you have one. We are here to help, I promise! I always hope that if my students aren't successful, they will come see me right away. We want you to! And we want to help you go through those essays and that score report, and create a game plan. Trust us, it's what we do! Maybe you don't know why one of your essays was given a 1, while another was a 5. We are trained to help you! We can help you with all of the above!

LAST: Change it up. Your Academic Success Professor can likely help you identify ways to change the way you studied, or identify different resources you might use. 

Also, don't forget about non standard testing accommodations. I've had students fail the bar because they use non standard testing accommodations all through law school, and then decide not to apply for those same accommodations on the Bar Exam! That's just silly. You are entitled to them. Yes, the application process can be frustrating, but at least try.

Finally, if you don't have an Academic Success Professor to help you out, here are some resources that I give to my students:

CALI lessons! Which are free, always a bonus!

  • CALI Lessons on improving multiple choice:

https://www.cali.org/lesson/18100

https://www.cali.org/lesson/18024

Other Resources, sadly not free, but some can be helpful. If you do have an Academic Success Professor, they might have discount codes, or other ways to help you get the below resources. 

https://lawtutors.net/

Or

https://www.jdadvising.com/

Above all else, don't give up! I'll say it again, this does NOT define you, not as a person, not as a future lawyer. This is one small hiccup on your road to a fantastic career. And it's frustrating yes, but you WILL get past it!

(Melissa Hale)

December 2, 2020 in Bar Exam Issues, Bar Exam Preparation, Bar Exams | Permalink | Comments (0)

Sunday, October 18, 2020

Cut Scores Impact Racial Diversity of Profession without Protecting Public

The UBE is spreading through the country faster than any legal education reform in recent memory.  A few short years ago, multiple people with information on Oklahoma's decision making thought the UBE would never happen in Texas, and following their lead, Oklahoma would also be one of the last states to adopt it.  Oklahoma disavowed scaling just a few years ago, and then, Texas followed the UBE lemmings.  Once Texas joined the crowd, the Oklahoma Supreme Court created a committee to study adopting the UBE.  One major question for the committee was whether the UBE, through scaling, would impact diversity.  The court also wanted to know if certain cut scores would impact diversity.  At that time, no one had a great answer.  No study looked at both the bar's impact on diversity along with cut score implications.  For Oklahoma, any information was even more irrelevant because Oklahoma was one of only a few states not scaling essay scores to the MBE.  The court proceeded to adopt the UBE without much information on that issue.

At that moment, there was a complete lack of information on critical topics.  Thanks to AccessLex and a team of researchers, we now have a quality study on cut scores' impact on diversity.  AccessLex offers grants for research on legal education issues.  You can read numerous interesting articles on their grant page.  The most recent article on California bar exam cut score is especially interesting.

The article Examining the California Cut Score:  An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards considers the impact of California's cut sore on diversity while also asking whether cut scores really protect the public from incompetent or unethical lawyers.  The analysis is very interesting.  I encourage everyone to ready the study.  We are in a unique period for bar exam reform and UBE expansion.  We should definitely ask whether the bar accomplishes its intended goal of protecting the public, especially if the impact functionally prohibits diversity of the profession.

(Steven Foster)

 

October 18, 2020 in Bar Exams, Diversity Issues, Publishing | Permalink | Comments (0)

Thursday, October 1, 2020

Lawyers and Essential Work - An ABA Article of Encouragement from ASP Professional Sara Berman

Just off the press, and not a minute too late, is an ABA article by author Sara Berman with advice for the most recent law school graduates, whether having already taken a bar exam or preparing to take the bar exam this month. https://abaforlawstudents.com/2020/09/01/preparing-for-the-bar-exam-and-practice-during-a-pandemic/

Here's a few tidbits from the article:  

(1) As lawyers (or soon-to-be lawyers), you are an essential worker because democracy and the pursuit of justice depends on the sacrifices, the integrity, and your legal skills.

(2) You've got a inspirational story to share with employers, having successfully navigated the transition to socially-distant learning, with both the completion of your law school studies and preparation for your bar exam.  What you've gone through will make you a better attorney in the long-run, so liberally share the lessons you've learned with prospective employers and attorneys and judges.

(3) Stay flexible as you march forward in your pursuit of your legal career, remembering in your heart of hearts that all of your  hard work has been more than a worthwhile pursuit because you will soon be joining the bar as a critical "guardian of democracy."  Id.  

Let me say that we - in the ASP community - are all so proud of you, admiring your flexibility and adaptability, your commitment to the pursuit of justice, and the inner strength and resolve that you have demonstrated in these unprecedented times.  Personally, we have much to learn from you.  So, please don't ever shy away from letting your voice be heard and your heart inspire us to be the community of practitioners that our world so desperately needs and deserves.  (Scott Johns).

 

 

October 1, 2020 in Bar Exam Issues, Bar Exams, Encouragement & Inspiration, Professionalism | Permalink | Comments (0)

Thursday, August 20, 2020

Making the Most in the Midst of the Many Bar Exam Postponements

It's been many months that some of our Spring 2020 graduates have been waiting to take postponed bar exams.  Florida, for example, just recently postponed its postponed exam, from July to August and now to October.  If that sounds exhaustingly frustrating, it is... So here's a suggestion for the many September/October bar takers that might just help rekindle a bit of the flames of learning:  

Get your heads out of the books and instead take time each day to work through some of the latest current events because much that is in the news also relates to bar tested problem-solving.  

For example, take today's federal court indictment following the early morning arrest of former White House adviser Steve Bannon on conspiracy charges: https://www.reuters.com/article/us-usa-trump-bannon-idUSKBN25G1J4.  Try locating the indictment and the arrest warrant.  Once found, here's a few things to ponder: (1) What authority if any does Congress have to adopt the criminal statutes that are the basis of today's indictment? (2) Did the federal government have probable cause to arrest Steve Bannon, and, if so, why? and, (3) What are the elements that the government must prove for the conspiracy charges?

Here's another possible bar-issue in the news:  Many businesses and restaurants are delinquent on rent contracts due to the COVID-19 pandemic. And, some business owners are seeking rent abatement.  Others are seeking reimbursement from their insurance contracts.    https://www.forbes.com/sites/paulrosen/2020/03/26/what-happens-with-contracts-amid-the-covid-19-pandemic/#774454d342af  These sorts of things raise a number of bar issues, such as, (1) What contract law applies to these contracts?  (2) Do  the defendants have any contract defenses, such as impossibility? and, (3) How should courts interpret force majeure clauses?

Finally, here's another news item to tickle a bit of bar exam intrigue.  This case involves whether a lawyer has a defamation claim against an online reviewer when the review stated that the lawyer "needed to go back to law school." https://www.abajournal.com/news/article/need-to-go-back-to-law-school-comment-isnt-libelous-appeals-court-rules  After reading the article, here's some thoughts to ask: (1) What are the elements of defamation? (2) If you were an appellate court judge, would you reverse the lower court's decision on whether the statement was actionable and why or why not? and, (3) Does the lawyer have any First Amendment issues as a member of the bar (a public officer of the bar?) and why or why not?

Of course, there are lots more issues in the news, from the COVID-19 pandemic to election interference to protester arrests to lawsuits against the President seeking TRO's and PI's, etc.  Search them out.  Find the civil or criminal complaints.  Figure out whether the courts have personal jurisdiction and subject matter jurisdiction.  Focus on the substantive elements.  If it's a civil case, figure out if you could intervene as a party in the case.  Work through how you would rule or litigate these matters.  In short, this is not time to turn your backs on the news.  Our world needs your voices now more than ever.  So, over the course of the next month or two in preparation for postponed bar exams, feel free to take breaks from the books and take time to talk through and work out what's happening in the legal news of today.  And in the process, you'll be learning more about the law. (Scott Johns).

P.S. Not sure how to get started, here's a helpful link with summaries of current legal news-making events: https://www.abajournal.com/news/

P.S.S. For entering first-year law students, taking a gander through the daily news in academic support groups can help bring life to the law, whether they are studying contracts, or torts, or constitutional law, for example.

 

August 20, 2020 in Bar Exam Issues, Bar Exam Preparation, Bar Exams | Permalink | Comments (0)

Thursday, July 2, 2020

Life versus Licensure...

That's how Texas bar taker Claire Calhoun put it when describing what she and thousands like her face with the prospect of in-person bar exams in light of increasing incidences of COVID-19:  

“We really, really hope and frankly need the bar examiners and the Texas Supreme Court to do something here to step in on our behalf, because it’s life versus licensure, and I don't think that's fair to make us pick." https://www.texastribune.org/2020/07/01/texas-bar-exam/.

It seems like Claire has been heard, at least in part.  On July 2, 2020, the Texas Board of Law Examiners, in part due to calls from students such as Claire, has decided to recommend to the Texas Supreme Court that in-person bar exams be cancelled and replaced with an October 2020 remote online bar exam instead.  Id.  As of this writing, let's hope that the Texas Supreme Court has heeded Claire's warning too.  Frankly, it's a choice that no law graduate ought be forced to make. 

Now I know that some might say that that's a bit too dramatic.  That Claire overstates the risk of harm.  But as any bar taker can tell you, it's a real palpable foreseeable risk of harm, something that tort law might and ought to recognize.  And, I don't think that Claire's concerns are that far fetched, because some states, seeming to recognize the tort risks at hand, are requiring bar takers to waive liability claims against bar examiners as a condition to sit for bar exams.  

In my opinion, that's too much to ask of our future colleagues.  Let me speak plainly.  It's wrong, downright wrong, especially because the risk of harm is not just a risk that the bar takers and proctors are being asked to assume but it's a risk that bar takers will then be spreading to others who didn't assume that risk at all.  That's just not fair or right.

But I'm not convinced that postponement to October 2020 for a remote online exam is right either.  Here's why.  At this point, with just over three weeks to the scheduled bar exam in July, most bar takers have been studying full-time since graduation in May.   They've been planning and preparing for July bar exams.  And, as cited in the Texas Tribune article, the financial impact of a 3-month postponement is not something to be taken lightly:  “I specifically budgeted my whole summer to take this July bar,” [bar taker] Anastasia Bolshakov said. “None of us are working right now. We have no income. The money we had in May, that's been slowly depleting.”  Id

Listen again to the words of these two bar takers.  Don't just read them.  Listen to them.  Take them to heart, or at least hear them out:  

"Slowly depleting."  

"No income."  

"Budgeted my whole summer."  

"Life versus licensure." 

Perhaps the risk of COVID-19 will not materialize such that the July and September 2020 bar exams can safely take place in person without putting bar takers, examiners, or the public at risk.  If so, by all means have the bar exam.  

But if not, let's not fail our most recent graduates by not being ready to immediately provide an alternative licensure path, without any delay at all.  For some states, that might mean being ready to immediately transition to an online bar exam with materials and procedures ready to go, for the July 2020 bar exam.  For other states, that might mean be ready to roll out a diploma licensure option for July 2020 bar takers.

As every pilot knows, no flight plan is complete if it doesn't plan for the possibility of a diversion to an alternate destination in case the weather turns sour or the destination airport closes.  

But it seems like many states have no alternative bar exam plans at all.  And, in my mind, postponement is not really a viable alternative plan because it's asking too much of those who have so little to give, especially when they've spent so much, over the course of the past three years, emotionally, mentally, and financially, to prepare for embarking on the profession of serving as attorneys.  To not have a viable alternative plan for our most recent graduates, at this point of time in the summer, is to leave our bar takers suspended in the air, without any place to land.  

Perhaps I am speaking out of turn.  Perhaps states have alternative licensure mechanisms ready to go so that the July 2020 bar takers need not fear any delays whatsoever.  If so, let them be known. Share them with your future colleagues.  

But if not, reach out to them.  Work with them, their law schools, and state bar associations and practitioners to develop and plan viable alternative licensure pathways that are ready to go if need be.  After all, at this point, no one has been able to accurately predict that path of COVID-19, not even the scientific experts.  

That suggests that the best laid plans must include ready-to-go alternatives, too.  That's the only way to fly safely.  And that's the only way to practice law wisely.  So also, it's the only way to do justice to not only the public but also our most recent law school graduates.  (Scott Johns).

P.S. Let me suggest two possible licensure alternatives.  

• First, a remote online exam with law schools footing the bill to provide - as needed - stable internet and testing locations for individuals without such capabilities.  I would envision a 3-hour open book written exam, composed of four (4) 30-minute essays and (one) 1 mini-performance test, drafted by local practitioners and courts and their law clerks.  Such an exam could be easily prepared and logistically administered by state supreme courts with just under three weeks to go to the July bar exam.  

• Second, a diploma licensure "plus" program.  In the event that in-person exams must be postponed without an alternative remote exam, partner with jurists, practitioners, and faculty to host two-day online workshops, guided by these experts, in which bar applicants and attorneys join together to work through a number of legal problems.  In shaping the online program, I would encourage state supreme courts to frame workshop problems around current events that raise issues from the bar tested-subjects, with the workshops implemented in lieu of the July bar exam, such that completion of the exam would result in the admittance to the bar.

July 2, 2020 in Bar Exam Issues, Bar Exams, Encouragement & Inspiration | Permalink | Comments (0)

Monday, June 15, 2020

What I've Learned

One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.

I’ve learned that:

Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.

Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.

Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.

Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.

(Marsha Griggs)

June 15, 2020 in About This Blog, Academic Support Spotlight, Advice, Bar Exam Issues, Bar Exams, Current Affairs, Diversity Issues, Encouragement & Inspiration, News, Publishing, Weblogs, Writing | Permalink | Comments (0)

Wednesday, June 3, 2020

Hey Bar Students, Take A Break!

Dear Bar Takers,

I’d like to talk to you about breaks. I see you. You are overwhelmed, you are stressed. Some of you don’t even know if you have a seat. Let me stress – I see you.

In addition, I’d like to acknowledge that there are a million things making it hard to focus right now. I’ve been struggling to focus, and I’m not studying for an exam. The non bar exam world is causing a great deal of anxiety, anger, sadness, and fear. For some, more than others. It’s understandable to have those emotions, and not feel like you can 100% focus on the exam in front of you, especially if you aren’t even certain when you’ll take it. That’s all valid.

So, I want to talk about breaks, and why they are important.  Taking frequent breaks helps improve your memory and focus, and helps reduce stress. Basically, research tells us that your brain can only focus for so long. It doesn’t matter how studious or determined you are, the human brain will not stay focused for 8 hours straight. In fact, if you aren’t taking practice exams to work on your stamina, I suggest taking a short break every hour or so. This is not my advice, this is advice from the neuroscientists.

Specifically, if we don’t take breaks, our brain gets fatigued. Once an hour, if not more, stand up and stretch. Or go for a brief walk. Switch your focus. All of these things help you improve memory and focus.

Also, taking breaks for mental health is ok. In fact, it’s encouraged. If you are getting frustrated with a topic of a question, take a break. Walk away and grab lunch. Take a walk outside. Just take a break from the frustration. If you push through, and continue to attempt to study while frustrated, your brain is not processing the information. It’s also ok to plan for entire mental health days. Your brain might need a longer break, and that’s ok too. If you are struggling to focus, maybe current events or family worries are weighing on your mind, step away. Do something for yourself and come back to studying later.

Finally, taking breaks for your physical health is ok and encouraged as well. I can’t tell you how many times I’ve had students get sick, maybe a bad cold for example, and they refuse to take a break. Not only are they not letting their body heal, which is not ideal for the long run, but your brain isn’t as focused as it could be, nor is it properly processing information. It’s far better to take a few days off, fully heal from the cold or other illness, and then dive back in feeling better.

So, in summary, while it is important to get in enough study hours – which are, let’s be honest, many – you owe it to yourself to take care of yourself. This includes breaks, and taking time for yourself.  It’s also ok to be human, and give yourself permission to have unfocused days.

In addition, reminding yourself of your motivation is going to help improve your memory and learning. Write a litter to yourself, or a post it to put on your laptop. Why did you go to law school? Why do you want to take the bar exam? Yes, I know, you want to take the bar exam so you’re licensed. But why do you want to be licensed. Keeping your goals and motivation in sight, literally, will help you focus and learn.

I’d also like to stress the importance of a different kind of break. We learn best by doing different things. So, don’t just focus on video lectures. Or do an entire day of MBE questions. (Unless you are taking a practice test.)  Mix it up. Spend 30 minutes writing an essay, and then review it. But then, do 15 MBE questions. Then watch parts of a video. The more you jump from one item to another, the better your brain is working, and the less likely you are to suffer from fatigue and lack of focus. The same goes for the subjects. Many students think they should spend a day, or even a week, on only one subject. But you actually stretch your brain, so to speak, by doing a mix of subjects.

Finally, despite my profession as bar professor type person, I can assure you that the bar exam is not the most important thing in the world. It really isn’t. Yes, you need to pass it to be licensed. And I want you to be licensed!  But it doesn’t define you as a person, and if you fail, or have to take time off, that won’t even define you as an attorney. So, what I’m saying is that if this is not the right time for you to take the bar exam, that’s ok. There is no shame in that. You need to do what works best for you, and if that means delaying the exam because you are afraid for your health, you are focused on other things, too anxious or unfocused right now, or any number of reasons, the exam will still be there in 2021.

No matter what you choose, good luck! I look forward to seeing you as a colleague soon.

June 3, 2020 in Advice, Bar Exam Issues, Bar Exam Preparation, Bar Exams | Permalink | Comments (0)

Thursday, May 14, 2020

Unmasked

It's in the moments of fiery crises that heroism is revealed.  

I think of our students, heroes everyone of them, finding within the resiliency and creativity to successfully adapt to online learning.  I think of the academic support community and law school faculty and staff, springing into action, resolutely empowering novel ways to encourage vibrant learning despite the difficulties.  I think of the many workers - across all walks of life - giving of themselves, in the front lines all of them.  

It's in these hard spots of life, the difficulties and trials, in which our true beings are revealed, unmasked so to speak.  

But there's more unmasking to be done.  And quickly too.  That's because many of our students have just finished their law school studies and are ready to graduate.  Ready to move onto the next step.  Ready to serve and contribute to the world.  

Yet many states are postponing bar exams with no certainty that latter dates will be any better - health-wise - for holding in-person bar exams.  

However that's not the situation that's just been decided by the Indiana Supreme Court.  Indiana is moving forward this July 2020 with a one-day online bar exam. And it looks like Nevada might be joining the movement to an online exam too. And one state, Utah, has taken an even bolder approach in implementing an emergency diploma privilege.  https://www.law.com/2020/05/08/in-a-first-indiana-will-hold-one-day-online-bar-exam-in-july/?slreturn=20200414232636https://www.nvbar.org/nevada-supreme-court-seeks-comments-by-may-14-re-modification-to-july-bar-exam/

Nevertheless, back in April in a white paper, the National Conference of Bar Examiners (NCBE) brushed aside the possibility of online exams or diploma privilege, arguing that online exams were unworkable and that the diploma privilege was not beneficial to the public good. http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F239.  

When I applied to law school (and for the bar exam), there were no online applications.  It just couldn't be done.  But oh how times change, if only we are willing, courageous, and creative.  Now, I doubt one can apply for law school save through an online application.  The same goes, I suspect, for most bar exam applications.  It's all online now.  Except for the bar exam itself.

The only thing that limits us to the present is us.  

It's not too late for New York, or California, or any other jurisdiction to implement a one-day online bar exam this July.  

But that takes removing the masks that so often keep us living in the present, forever failing to see the future.  And, to be honest, living in the present, when the present of the past no longer exists due to COVID-19, is not really living in the present.  It's living behind the mask of the past.  

The next step is for you - state supreme courts and jurists.  We would like join with you, and local and state bar associations and practitioners, to move forward thus summer, whether that's with an online bar exam or with diploma privilege.  The choice is yours. (Scott Johns).

May 14, 2020 in Advice, Bar Exam Issues, Bar Exams, Encouragement & Inspiration | Permalink | Comments (1)

Monday, May 11, 2020

Bar Exams CAN Be Administered Online

In response to the mounting uncertainty about the administration of the July 2020 bar exam, Indiana has moved its exam online.

By order of the Indiana Supreme Court published May 7, 2020, Indiana will offer a one-day online exam in late July. According to law.com “that makes Indiana the first jurisdiction to commit to an online July exam, and the first to say it is creating its own version of the licensing test.” Indiana was one of the last states to adopt the Multistate Bar Exam, and had, for years, given a purely “state-made” exam. Today, the Indiana exam includes multistate content and state specific essays, so the bar examiners likely have an arsenal of potential test content. Other states, like California and Massachusetts, have made nods towards an online exam, but have not publicly defined what their exam would look like or when it would be administered. Both California and Massachusetts have postponed their July exam until September.

Indiana may soon have company. The Chief Justice of the Nevada Supreme Court filed a petition recommending a temporary modification of its July 2020 bar exam to an online format. The petition is based on a recommendation from the Nevada Board of Law Examiners (BLE). The Nevada BLE proposed to administer a two-day, fully online, exam consisting of eight essays and one Nevada performance test. The Nevada proposal excludes multiple-choice questions. If accepted, Nevada will join California and Pennsylvania in administering its own performance test. The Nevada proposal is open for public comment. Anyone wishing to support (or oppose) the proposal should email the Clerk of the Nevada Supreme Court. Like Indiana, Nevada uses both multistate content and administers a state law essay exam. 

The COVID-19 pandemic has added new layers of stress to the already hectic workloads of the academic support community. ASPers are affected by the pandemic in ways that our doctrinal colleagues are not. Traditionally, we are the ones from whom students seek counsel and clarity about the bar exam and how to prepare for it. Our ability to respond to those questions has been upended by proposed delays and the looming threat that a face-to-face exam cannot be administered in either July or September. All we know now is that we really don't know what will happen or how our students should best prepare. Added to the worry about whether there can be a bar exam at all, is how our students will fare on the exam and what our pass rates will look like.

The Society of American Law Teachers (SALT) called for suspension of ABA Standard 316 mandating that law schools maintain a 75% bar passage rate to remain in compliance. We can reasonably anticipate that bar pass rates will be lower in 2020 than in recent prior years. Students are under extreme stress dealing with pandemic related adjustments, fear of contracting the virus, and fear of spreading it to loved ones. Summer bar takers lack of access to law schools, public libraries, and quiet coffee shops for bar study, because they are not open to the public. Some may be battling illness themselves. Moreover, the administration of three separate exams with comparative and wholistic grading will also likely skew the exam outcomes and lead to a higher number of bar failures than would have occurred had all candidates taken the exam in the same administration. The Bar Advocacy Committee supports the SALT position and will present a letter to the Executive Board of the Association of Academic Support Educators (AASE) for signature, delivery, and public posting. 

In the past, New York has been the state to follow, in terms of bar exam policy and development. Not so, anymore, as the limited seating debacle has cast a cloud of embarrassment and incompetence over the empire state. Who knew that we would see such progressive and compassionate bar policy leadership coming from Utah, Indiana, and now, hopefully, Nevada! It just goes to show that good ideas aren’t tied to population or politics—good ideas stem from compassionate effective leadership. And there is still room for more leaders with regard to the July 2020 exam.

(Marsha Griggs)

May 11, 2020 in Advice, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Exams - Studying, Miscellany | Permalink | Comments (0)

Wednesday, May 6, 2020

A Fun Look at Bar Exam History

The Bar Exam is in the front of everyone's mind right now. When will it happen? Should we change the exam? Does the exam actually measure competence as lawyers? Should we be using diploma privilege instead?

All of these are excellent questions, and handled in much more serious papers, usually by our very own Marsha Griggs!

However, I wanted to take a bit of a fun look at the history of the Bar Exam. I have been reading Robert M. Jarvis' An Anecdotal History of the Bar Exam (9 Geo. J. Legal Ethics 359 (1996)) and wanted to share some highlights.

  • Massachusetts became the first state to offer a written exam in 1855. Prior to this, states would issue oral exams, often with a Judge in the district that the lawyer wished to be admitted, or with a lawyer already admitted to that bar. Massachusetts began the written portion for those that couldn't take the oral portion, but in 1876 Suffolk County (the county that Boston, MA sits in) began requiring lawyers to pass a written examination in order to be licensed. In 1877 New York introduced a written exam in addition  to the oral exam.

 

  • The oral exam seems like it was less stressful and rigorous than what applicants go through today. Huey P Long – former Gov of LA - passed his oral examination easily. When asked by George Terriberry, an admiralty practitioner, what he knew about admiralty, Long replied” Nothing." When further asked about how he would handle an admiralty matter, long answered “I’d associate Mr. Terriberry with me and divide the fee with him.” Long passed. 

 

  • Abraham Lincoln was a bar examiner, and judged to be a very lenient one. According to Len Y. Smith, in Abraham Lincoln as a Bar Examiner, B. Examiner, Aug. 1982 (An article I'm currently trying to find), Jonathan Birch of Bloomington relays his experience with Lincoln. Lincoln essentially asked him "how long have you been studying?" with Birch responding "Almost two years."  According to Birch, Lincoln's response was "By this time, it seems to me," he laughed, "you ought to be able to determine whether you have the kind of stuff out of which a good lawyer can be made."  Then Lincoln asked for a definition of a contract, and then sat on the edge of the bed and began to entertain Birch with stories. Then, took him to the clerk, and gave the clerk a note saying "My dear Judge:- The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He's a good deal smarter than he looks to be. Yours, Lincoln." I am certain almost all of my students would pass either of these oral exams. I have also heard that Lincoln once examined an applicant from his bath tub. I love this story, but have yet to be able to find a reliable source, so take that with a grain of salt.

 

  • Before you think that all oral examinations were easy, and most were just a mere formality, they were not easy for everyone. Clara Foltz, the first woman admitted to the CA bar, was administered a 3 hour oral exam. In addition, this "mere formality" was usually a way to find out the applicant was likable, or meshed well with the current bar. You can imagine how this created inequity at the bar.

 

  • 7 states allow you to “read” the law – California, Maine, New York, Vermont, Virginia, Washington, Wyoming – this means aspiring lawyers study to be a lawyer and take the bar without attending law school. This is what Kim Kardashian is currently aspiring to do. I can tell you, it isn't easy!

 

  • It used to be that 32 states allowed for diploma privilege. Currently only WI allows this. It was abolished in CA in 1917, and most recently, Mississippi in 1981,  Montana and South Daktoa in 1983, and West Virginia in 1988.

 

  • New Hampshire was the first state to use a permanent board of law examiners. This occurred in 1872

 

  • KY and  VA used to have strict dress codes of business attire. While they still have dress codes, they are not as strict as they once were, which required women to wear skirts and nylons.

  • In 1985 Laura Beth Lamb, a lawyer with the securities and exchange commission, dressed up like her husband, Morgan Lamb, to take the California Bar Exam for him. She was 7 months pregnant, and diabetic, and passed the bar with the 9th highest score on the exam. However, when she was found out she was disbarred, so please don’t try this one. (Also, on a sad note, she claimed he forced her to sit for him after he failed the bar, and threatened and abused her.)

  • In July 1985 hundreds of bar exams from the New York State bar disappeared without an explanation.

  • Prior to the 1980s, it was more common for states to use geographical exclusions to limit bar admissions, but a series of cases in 1980 struck down suck exclusions.

I hope this gives you a bit of a fun break from the craziness that is the current bar exam!

(Melissa Hale)

May 6, 2020 in Bar Exam Issues, Bar Exams, Current Affairs | Permalink | Comments (0)

Monday, May 4, 2020

Imbroglio

Imbroglio: A complicated situation; a sequence of events so absurd, complicated, and uncommon as to be unbelievable.

Merriam-Webster might as well add a footnote to the July 2020 bar exam administration as an example of the term “imbroglio.” No other term can accurately describe the debacle that surrounds the upcoming bar exam. Blog, essays, and the exasperated cries of bar candidates—summed up in one word. One word with an applicability of meaning that has become self-evident.

A complicated situation – Our nation has become embattled by a contagion that shows no sign of relenting. Across the country, stay at home orders are in place to mitigate the spread of the deadly coronavirus. In states with large numbers of bar takers, there is no safe way to administer the bar exam in the traditional format. Yet, bar examiners and the American Bar Association insist on a bar exam as screening tool for entry into the practice of law.[1]

A sequence of events so absurd Some states postponed the July exam. Some states canceled it altogether. Some states propose to offer a bar exam in early September; others in late September; others have postponed the exam “indefinitely.” No matter what the states propose, the National Conference of Bar Examiners (“NCBE”) will let us know on May 5, 2020 whether there will be any multistate or uniform exams released in July. States that have adopted the Uniform Bar Exam  (“UBE”) are powerless to administer any exam in July if the NCBE won’t provide the questions, because UBE states don’t write their own bar exams anymore.

Complicated – Epidemiologists tell us that the virus comes in waves. Even with proposed and announced dates for the bar exam, COVID-19 may make it impossible or unwise to administer it in the late summer or early fall. But bar takers cannot afford to wait until there is certainty to begin studying. Many will begin bar study this month, for an exam that may or may not take place. They will study in places that are not libraries or law schools, because those places are closed.

Uncommon – COVID-19 presents an unprecedented situation that will impact the flow of new attorneys into the profession at a time when there will be an increased need for legal services. Extraordinary times call for extraordinary measures, like emergency diploma privilege. Utah adopted a sensible emergency diploma privilege, but the ABA and the NCBE discourage other states from following suit.

Unbelievable – Just when we thought things could not possibly get any worse, the New York Board of Law Examiners announced that it may not have enough room to allow bar applicants from out of state law schools to sit for the exam that it hopes to administer on September 30 – October 1. In that same announcement, and with hold-my-beer momentum, the New York bar officials strongly encouraged candidates “to consider sitting for the UBE in other jurisdictions.” That this advice was given without regard for the COVID precautions of other states, and at a time when very few other states were still accepting applications, defies comprehension.

I won’t ask, “what could happen next?”

(©Marsha Griggs)  

 

[1] ABA STANDING COMMITEEE ON BAR ACTIVITIES AND SERVICES LAW STUDENT DIVISION RESOLUTION [sic] (04/07/020) “the Resolution does not . . . modify or limit the historic and longstanding policy of the ABA supporting the use of a bar examination as an important criterion for admission to the bar.”

May 4, 2020 in Bar Exam Issues, Bar Exam Preparation, Bar Exams, Current Affairs, Exams - Studying, Miscellany, News | Permalink | Comments (0)

Wednesday, April 29, 2020

So you failed the bar....

What's next? 

  1. Take a minute, it’s ok to be upset.

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.

So, take a few days to be upset, it’s ok. 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.

  1. Meet with Someone.

Reach out to your school's academic support or bar professionals.  We want to meet with you, and we won’t judge. We will provide a sympathetic shoulder, and we will talk out a plan. Trust me when I say that we WANT to hear from you.

  1. Request your essays back, if you can.

Many states allow you to request, or view, your essays.  

Once you have your essays, I want you to do a couple things. Review your answers: now that you are removed from the day of writing, what do you notice? 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 (you should still have access) on assessing your own work. It may seem geared towards law students, but it can help you assess your essays: https://www.cali.org/lesson/18101

  1. 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 wit you so you still need to practice essays. The reverse is true if you did better on MBE than the essays.
  • Perhaps you did really well on the torts MBE, but your lowest score was civil procedure. Again, do not just focus on civil procedure, and forget other subjects. Your scores will just swap places, and not improve overall.
  • You might be only 2 points away from passing. Great! However, your score is still starting from scratch. Meaning, in one sense, you only need 2 more points, but that’s not how the bar works, obviously. You have to still work to get the points you already got AGAIN, and it is likely you forgot things, and are out of practice.
  1. Think about external things while you were studying

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.

  1. 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.

  1. Think about study habits

The most important thing you can do is practice. Many bar students get caught up in trying to memorize every sing law, or master every subject. While this is admirable, and takes quite a bit of time and effort. However, mastering the bar is a SKILL. You need to practice. When I work with repeat takers, I often find that they knew the law, and they studied hard, but didn’t practice enough essays or enough timed MBE.

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

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

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

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

  1. 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, I am here for you. I am a resource, and look forward to helping you!

Available Resources:

  • CALI Lessons on improving multiple choice:

https://www.cali.org/lesson/18100

https://www.cali.org/lesson/18024

 

Once again, remember that this doesn't define you. This is one step in the process, and that's it. 

Good Luck!

(Melissa Hale)

April 29, 2020 in Advice, Bar Exam Preparation, Bar Exams | Permalink | Comments (0)

Monday, April 27, 2020

Will the Bar Exam Go the Way of the 8-Track Tape?

For the times they are a-changin’. -Bob Dylan

The times certainly have changed. Almost overnight, every facet of daily life has transitioned to online delivery. Telehealth and telemedicine are becoming the primary source for doctor-patient interaction during the pandemic. Law school classes are online. College classes are online. K-12 primary education is online. Church and religious services have moved to online formats. My grocery and organic farm-to-table products —gone online. Court hearings, also online. I can buy a car, entirely online. I can have legal documents notarized online.

But I cannot take the bar exam online. At least not yet.

The COVID pandemic has tested our resolve and our ability to utilize available technology. Almost every aspect of the legal profession, from court proceedings and probate administration, to law enforcement and legal education, has mobilized for remote administration. Bar examiners at the state and national levels should hang their heads in shame for not harnessing the available technology to deliver the existing exam remotely. It is an embarrassment of epic proportions that those at the helm of legal licensure are so behind the times that the pipeline for entry to the legal profession could be closed until further notice.

Relentlessly tethered to tradition, those insistent that 2020 law grads take an exam that may not be offered until early 2021 have either dropped the ball or are hiding it. It is fundamentally unfair to require an exam for licensure and at the same time withhold that exam from licensure candidates. The cries for diploma privilege and supervised practice options have sounded around the world. To which bar examiners and high courts have responded with either feigned indifference or a proposed solution that is no more than a band-aid for a gaping wound.

To become attorneys, bar candidates should not have to risk their health or the health of their vulnerable loved ones to the spread of the coronavirus. Even today, there are still more unanswered questions than answers. The majority of U.S. jurisdictions have made no announcement as to whether they will offer an exam in July or not. A number of states have canceled the July exam, but still have not announced definitive information about the date or form of the replacement exam. Candidates across the country remain in the dark as the bar exam becomes an archaic qualifier for competence. If the bar examiners hold fast to the pencil and scantron method of testing, we can expect to see it go the way of the pay phone, the answering machine, and the 8-track tape.

Two states, California and Massachusetts, have alluded to an online exam, but with little detail. It remains unknown what role the National Conference of Bar Examiners (NCBE), who produces the multistate exams used in all states except Louisiana, will play in the online exam. If the NCBE can provide an online exam for two states, why not do so for all UBE jurisdictions? And why make candidates in other states suffer the risk of exposure to COVID or career delays by withholding the online exam?  

If the NCBE has not developed an online exam, we must ask “why not” and "where has it been for the last two decades?" And we must not accept “test security concerns” as a viable response. Test security is no less of a concern to law school faculty, and to those who administer admissions exams. Yet all law school exams and the LSAT will be offered online in May 2020. The MPRE (another NCBE exam) and other professional licensing exams are already online.

Whether the bar exam effectively assesses one’s competency to practice law is a reoccurring question that will continue to resurface.  At a time when virtually every state, except maybe Utah and Wisconsin, is under fire for indecisiveness and poor communication regarding the fate of would-be July 2020 bar takers, bar examiners are justifiably under scrutiny. As is the bar exam. The future of the exam is in the examiners’ hands. We’ve only to watch and see if they’ll respond like Blockbuster or Netflix.

(Marsha Griggs© 2020)

April 27, 2020 in Bar Exam Issues, Bar Exams, Current Affairs, Exams - Theory, News, Web/Tech | Permalink | Comments (0)

Sunday, April 26, 2020

Is the Bar Exam Necessary?

Nearly every lawyer has a bar exam story.  For some, it was sleepless nights studying.  Others experienced trauma during the preparation period.  I walked under the wrong bird on my way into the exam.  Ask any lawyer, and they will tell a story.  Is the collective experience enough for continued administering the current bar?  The current crisis necessitates asking whether the current bar exam is an appropriate assessment tool.  Brian Tannebaum published this week that the answer is no.  He said the bar should be cancelled forever. (hat tip to James McGrath)

The bar exam debate reached the boiling point this year due to COVID-19.  The 2015 addition of Civil Procedure to the MBE and subsequent crash in national MBE scores raised red flags about the test.  In front of over 100 experts in learning and student achievement, a NCBE representative (current president) ignored and ungracefully punted when questioned about cognitive load theory.  The continued decline in scores caused numerous questions about the MBE.  Now, the COVID-19 crisis could prevent safely administering the bar exam, and state bars must answer the question whether bar exams are necessary for licensure.

The NCBE obviously says the bar exam is critical to licensure.  In a white paper some would describe as insensitive during the current crisis, the NCBE promoted the virtues of the bar exam.  The exam protects the public by ensuring a level of competence by everyone licensed.  You can read their white paper here. 

I am skeptical of the white paper arguments though.  Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public.  They espouse the MBE's greatness through reliability and validity.  Their argument is an objective MBE is fair, and thus the best assessment.  The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law. 

For a paper I want to publish, I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company.  Approximately 20 agreed to take the exam.  The practice experience ranged from 1 year to over 15 years.  Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135).  A litigator passed the Evidence section, but no one else passed the subject they practiced the most.  ADAs and PDs failed the Crim Law section.  Transaction attorneys failed Contracts.  As attorneys' experience increased, MBE scores decreased.  I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test.  The results were the same for everyone.

The argument the bar exam protects the public assumes the exams tests what a lawyer does for the public.  Unfortunately, the MBE fails to test minimum competency to practice law, which is the threshold for licensure in virtually every state.  It tests competency to answer MBE questions which allude to legal concepts within the questions.  I know the criticisms of my research.  It isn't statistically significant and the test isn't a real MBE.  Finding lawyers to voluntarily take a bar exam isn't an easy task.  However, I fully believe the result would occur on a larger scale.  I encourage bar examiners, Supreme Courts, and anyone advocating for the MBE (including lawyers at the NCBE) to take a simulated MBE.  I encourage the NCBE to make a real version of the MBE available for the test and independent score verification.  If a large majority of participants pass, then the MBE tests minimum competence to practice law.  However, if they don't, then maybe the wisdom from learning experts about cognitive load, spaced repetition/the forgetting curve, and other learning science can be used to create a test that truly assesses the minimum competence to practice law.     

COVID-19 is accelerating an ongoing feud over the bar exam, especially the MBE.  This debate will continue, so I encourage everyone to evaluate the information related to the bar.  We can use this time to either modify or solidify the current licensure process.  Previous generations' experience should not be our guiding principle for an exam.  Even if I am wrong, now is the time for boards, Supreme Courts, and the NCBE to evaluate the way we license attorneys.  Confidence in what we are doing actually protects the public should be paramount.

(Steven Foster)

April 26, 2020 in Bar Exam Issues, Bar Exams | Permalink | Comments (1)

Monday, April 13, 2020

Unanswered Questions

Hat tip to Sara Berman who shared an op ed that made it to my inbox this morning. The article: When Will Life Be Normal Again? We Just Don’t Know, by Charlie Warzel, an opinion editor for the New York Times. Warzel’s article consists of 46, mostly single-sentence, paragraphs of pandemic related questions that we simply do not have answers to. Those unanswered questions are flanked by only and exactly eight sentences of text, that bring home the point that as we enter a month or more of shelter in place lockdown, “we have more questions than answers.”

Today, like so many days before, I ended the day with more questions than I started with. And not one of my questions has found a definitive answer. I’ve read and written articles, blogs, exposés, papers, and proposals, but I’ve found no catchall answers for those tasked to assist the incoming class of attorneys with bar readiness. As I ponder my own questions, my thoughts shift seamlessly to the meritorious and unanswered questions of law students and future bar takers:

If there is a bar exam, will masks be included on the list of permitted items? If not, will the examiners provide masks at the test sites?

How will bar examiners ensure the safety of examinees during the exam administration? Will there be on-site coronavirus testing?

What recourse do we have if we contract the virus during an exam administration?

Should we have to risk our health and the safety of our loved ones to take the bar exam? 

If it's not safe to go to school, attend church services, or have dinner in a restaurant, how is it safe to sit in a room with others for six hours to take an exam?

What supervised practice options are available to students who plan to enter solo practice or practice in rural areas without other attorneys?

What arrangements will there be for students who receive test accommodations? 

When did administration of the bar exam become tied to the number of people taking it? 

If there is a bar exam given in July in State A, will students in State A also have the option to take the exam in September instead of July? 

If a student who has registered to take the July exam does not feel safe taking the exam in July or September, can that student receive a refund of their examination fee?

Are you listening to the students in your state or are you listening to some outside entity tell you what is best for us? 

Could you study [effectively] for a two-day bar exam under these conditions? Has anyone ever had to prepare for and take a bar exam under these conditions? 

Do you wonder why the number of people interested in going to law school has dropped?

If an emergency is not a time to make a change, when is?

Why are folks in a diploma privilege state so opposed to diploma privilege?

What is it about diploma privilege that scares you? 

Isn't diploma privilege a bigger threat to those who sell and profit from the exam than it is to the public? 

What good is ABA approval if examiners and the ABA don’t trust our law schools to educate us and prepare us for practice? 

What does the bar exam test that three years of law school did not teach us? 

Why do you have more confidence in an exam than in us?

I claim no originality for this week’s blog. I credit a writer whom I’ve never met for the concept, and I credit the questions to the voices of law students that I have and will continue to listen to.

(Marsha Griggs)

April 13, 2020 in Bar Exam Issues, Bar Exams, Current Affairs | Permalink | Comments (0)