Thursday, June 11, 2020
You've heard the quip: "Which comes first? The chicken or the egg?"
"Well," continues the pun, "I'll let you know. I just ordered one of each from Amazon."
With respect to memorization, I think that we can say that memorization comes last. But what comes before memorization then?
As Professor Melissa Hale indicates, the words "memory," "memorization," and "remember" all have - at their roots - stories, and the memories that then come out of those lived experiences is what we can "memories." Hale, M., "Memory Tips," Law School Academic Support Blog (Jun. 10, 2020). So, memorization is preceded by stories and stories are produced through experiences.
Consequently, for those preparing for bar exams, don't focus on memorization at all, at least for now. Rather, as Prof. Hale writes, focus on learning, experiencing, and sharing in the stories that are wrapped into the many essay and multiple-choice questions that you are practicing. Id.
Learn from them. Experience them. Talk to them. Wrestle with them, too.
Then, when it comes time to work on memorization, in the final two weeks of bar prep, you'll have something real to recall, something memorable and tangible, because you will have experienced those rules, not in the abstract, but in the context of experienced narratives. That way, when it comes time for your bar exam, you'll have more than just the law to talk about; you'll also be able to show how to apply the law to solve bar exam problems.
And, back to the pun shared at the beginning of this little blog, that's something to smile about. (Scott Johns)
Wednesday, June 10, 2020
I keep getting asked about memorization for the bar exam. Specifically, “How on earth am I supposed to memorize all of this?” and “Do you have any tips on memorization?”
So, here we go!
First of all, memorization is a bad word. I hate it. You want to remember, or recall, but not memorize. Why do I make a big deal about this? Well, for a couple reasons.
First, our brain is awful at memorization. Briefly, we have short term memory, long term memory, and memory retrieval. Short term memory can also be called working memory. It’s like a short picture that only lasts minutes. Next is long term memory, where memories are stored. And finally, memory retrieval, which is what you are concerned with for the bar exam. This is also the most difficult to achieve. So, your aim isn’t really to “memorize”, but to remember and recall.
Also, if you focus on memorization, instead of learning, you will get overwhelmed and stressed. So, reframe the idea in your mind for more success.
So, what CAN you do?
The power of Story and Emotion
Memory is often tied to stories, and strong emotions. This is why our autobiographical information is easy to recall. We might smell a certain food, and fondly remember a lovely family celebration we had as a child. These memories are typically vivid and strong. That’s because we process them as stories, not facts. If you are at a party, you don’t focus on individual details to remember, like the color of the walls, or the music playing, and consciously try to memorize it. You remember it because it’s happening to you, it’s a story. In addition, you are more likely to have a vivid memory of that party if you are feeling a strong emotion, usually intense happiness. (Carey, 2014) or (Tyng, Amin, Saad, & Malik, 2017)
So, how do you make this work for bar review? The act of studying doesn’t make for a good story, and you aren’t likely to feel very strong emotions. Maybe frustration, or stress, but those actual have a counterproductive impact on memory. So, it’s up to you to manufacture stories and happiness. Don’t just stare at outlines, or black letter law. Do more and more practice questions, which are stories. Or, even better, make up new hypotheticals of your own, the more ridiculous the better. If you’ve seen me lecture on any bar topic, you know I love crazy stories. I’m sure my students often roll their eyes, and wonder why I’m being ridiculous. But it’s to help with memory. The more absurd or ridiculous my examples, the more likely you are to remember the law.
Also, manufacture happiness, as much as you can. Studies have shown that test subjects that are placed in a room with simple smiling faces do better on memory. So, surround yourself with happy photos or pictures of your pets. Call one another on zoom and make up ridiculous hypotheticals until you are all laughing.
Speaking of stories, practice! Each MBE fact pattern, and each essay hypothetical, are stories! So, not only will practice make you better at tackling the essays or MBE questions, but practice gives your brain
stories to hold on to. The examples will help your memory! If you are trying to memorize the rule for parol evidence, doing 10 MBE questions, and really learning from each question, will serve you better than reviewing your outline over and over again.
In cognitive psychology, chunking is a process by which individual pieces of an information set are broken down and then grouped together in a meaningful whole. The word chunking comes from a 1956 paper by George A. Miller, "The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information". This was because the brain can typically only remember 7-8 items at once.
So, what does chunking information mean for you? Well, let’s think of a grocery list.i
So, you have to buy the following:
You might want to chunk by meal. For example, Bread goes with turkey and cheese, and maybe tomato. Milk goes with Cereal, and maybe those go together with orange juice. As I’ve listed it, the items are random, so there is no way to remember them. Or there is, but it’s very difficult. But grouping by the meals will help your memory.
Alternatively, you can group by where the items are in the store. It is likely that the orange juice and milk are together, and the so are the bread and cereal, and the turkey and cheese.
So, the first step in chunking is to think about how you will need to use the information. This is one reasons I place practice so highly. When you go to memorize the law, you can’t memorize it in a vacuum. You have to think about how you will be using it, and then chunk from there.
Our brain learns more effectively if we space out information. So, this is more support for my theory that breaks are magic! Think of it like this, if you are building a brick wall, you need to let the motor in between the bricks dry before you stack too high. Similarly, you let one coat of paint dry before you put on another. You get the idea.
So, while studying for the bar, space out your studying. While it might feel like you don’t have time, you need the space to solidify your knowledge.
Take breaks! I wrote an entire blog about this last week. But your brain can only process and remember so much at once. Essentially, if you are reading 50 pages of outline, without a break, you are only likely to remember the first and last few pages. That’s a waste of time! Take frequent breaks, and break up what you do. The more active you are, the better.
Write an essay with open notes. Do a set of 5 MBE questions, and then review the applicable law. Mix up subjects. All of that will help with memory.
General Mental Health
Finally, I mentioned before that if you are frustrated or stressed, that doesn’t help with memory. That means you have to take care of yourself mentally while you are studying. This is going to vary for everyone, but make your mental health a priority. And if you feel yourself getting frustrated or overwhelmed, see above and take a break!
Finally, remember that your aim is to learn, not merely memorize! Also, this is just meant to be a primer, and is already too long for a blog post. There is so much more to be said about various memory techniques.
Carey, B. (2014). How We Learn: The Suprising Truth About When, Where, and Why It Happens. New York: Random House.
Tyng, C. M., Amin, H. U., Saad, M. N., & Malik, A. S. (2017). The Influences of Emotion on Learning and Memory. Frong Psychology.
i I completely took this idea from Paula Manning at the 2015 AASE Conference in Chicago, and have been using it ever since!
Thursday, May 28, 2020
That might be an overreach. But not by much. I only witnessed - at the most - 3 different flowers along the nearby hiking trail. Another hiker, who I met along the way, exploded with joy that she had spotted 44 different flowers along the same identical path, many of which were rarely seen during the short Colorado spring season. Same path; different eyes.
That experience left me wondering what else I am missing in this journey of life. Much, I suspect. Especially in these times with much of my face hidden behind a bandana. You see, I had a different purpose in mind on the hiking trail. And that resulted in a different pace and a much different outcome.
My fellow hiker's words hit home with respect to bar prep. Much of the colloquial wisdom is to practice testing yourself, constantly, as you prepare for your bar exam. Watch the clock, and my oh my, certainly don't take a timeout to research a bit of law when you are stumped. But, if in your bar prep you are driven by working the clock, you'll miss much. And what you miss is the opportunity to learn to improve critical reading and problem-solving skills because developing those skills takes lots of time and concentration - just like my fellow hiker spotting 44 flowers in beautiful bloom along the trail.
Let me share a secret. Rare is it that people run out of time on the bar exam. Oh it happens. But it's not because they didn't practice with the clock. Rather, it's often because the gambled with proven strategies to tackle their bar exams. They grabbed hold of the essays and then spent precious time looking for their favorites. Or, they hit the multiple-choice bubbling along the way while leaving many answer choices blank, with a long list of questions that they'd like to come back to, in the event that they have more time left at the end. On the bar exam, you don't have time to look at questions twice (or even more). Rather, just solve them one-at-a-time as they appear in the materials.
I know, you're saying, "Well, how am I going to get faster if I don't practice with the clock?" I'm not saying never practice with the clock, but the time to do so is much later, mostly only with mock bar exams, and mostly only in the last two weeks or so. In my experience, if you work on getting faster, you'll be super-fast but also often super-wrong because you haven't worked on seeing the patterns and observing the commas, the phrases, and the many nuances that are the heart of doing well on the bar exams.
Let me make it concrete. I have never seen a person fail the bar exam because they didn't know enough law or weren't really speedy enough. Rather, when people do not pass the bar exam, they tend to write about issues that weren't asked by the problems. That's because they worked mostly for speed through as many problems with goal of constantly testing themselves. "Am I passing yet? Is that good enough? I've got to get up that trail, so to speak, as fast as possible."
Instead, let go of the clock. Spend time in the midst of the problems. Question the questions. Puzzle over them. Ponder and probe the language, the phraseology, the paragraph breaks, and the format of the questions. In short, for the first six weeks of bar prep, practicing problems to learn with just an occasional check-in mock bar exam to see how you are doing. That way you'll be sure to see what's hidden in plain sight. And, that's the key to doing well on the bar exam. To locate and expose, what one of my recent students brilliantly called the "undertones" of the problems...that are really in plain sight...if only we take the time to learn to see.
(Scott Johns - University of Denver).
Tuesday, May 19, 2020
In a normal year, my students would all have begun their bar preparation yesterday, coasting on their post-graduation-ceremony momentum right into a seat in front of the first of many lecturers. But in New York, and more than a third of all U.S. jurisdictions (in which -- again, in a normal year -- more than half of all July examinees would be sitting for the exam), the date of the bar examination has been postponed for six weeks or more, leaving bar students in those jurisdictions with the gift they hate most of all: uncertainty.
What is to be done with all this extra time? Bar preparation companies cannot agree: some are simply administering their typical ten-week program, just starting it six weeks later than usual, while others have reworked their program schedule, starting it earlier and drawing it out over a longer period, but with shorter study days. Employers, many contending with their own virus-induced crises, have added variables to the new graduates' calculations, some allowing their new employees to start early and then take time off, others expecting hirees to adhere to their original early-August start dates, and still others unnervingly withdrawing their employment offers indefinitely. Even we bar support specialists can only make well-educated guesses about how to make use of six extra weeks. We have no data, no direct experience of how a delay like this will affect individual students or the testing cohort as a whole. How much more study can a student put in without burning out? Should the extra time be spread across all aspects of bar study, or should certain skills or subjects receive more attention? Will MBE scores increase overall for those who take the test in September? Decrease? Will the bell curve spread out? Will this hurt or help examinees?
Sensibly, 43 more days of prep time should be seen as a boon. In a normal year for bar study, isn't time the most precious resource of all? In my discussions with students, I have suggested they think of this extra time the way they might think of an unexpected financial windfall. You don't have to spend it all in one place. You might devote a large chunk of it to bar study -- that is, after all, the primary focus of the summer -- but how you specifically budget it depends on your own circumstances. An examinee facing financial pressures might choose to work for a few weeks, then begin studying a few weeks early. Someone eager to get started studying might begin this week, but set aside a week or two, at strategically placed spots on the calendar, to put study aside, connect with family and friends, or do whatever else helps them refill their gas tank. It's important not to let the time slip by unnoticed -- it would be bad to turn off the TV one night near the end of June and realize you had not done any bar study -- and that's why it's important to budget the time and actually create a schedule. And that, for some, is what seems to turn this temporal windfall into a vexation. In order to budget, you have to make choices.
No one wants their bar prep period to feel like playing endless rounds of "The Lady or the Tiger?" At every step: choose the right path, and you will be rewarded with contented knowledge and testing skills; choose the wrong path, and you will be mauled by a ravenous UBE with MPT fangs and MBE claws. In a normal year, examinees only have to be certain that the regimented bar study course they have chosen, which has worked for thousands of examinees before them, will continue to reliably work for them. This summer, though, because so much is unregimented, some examinees are anxious about being uncertain about so much more. Am I studying enough? Am I studying too much? Am I studying too early? Am I studying the right things, in the right way, for the right amount of time?
Two propositions can help people in such a tizzy of uncertainty. First, assure them that they are not feeling this uncertainty because of some character flaw that prevents them from making definitive choices. They are not losing their heads while all about them are keeping theirs. This is an inherently uncertain situation -- we can't even be assured the exam will actually be administered in September! -- and so there is no single "correct" choice. The best they can do is what they've been training to do for the past three years: exercise good judgment based on competent authority and relevant facts. As long as they are not just guessing, as long as they are talking to us and their mentors and their instructors and applying what they learn to what they already know about themselves and the task before them, they can at least make a good choice.
Second, help them subdue the perception that they are overwhelmed by uncertainty by reminding them of what is certain. The content and structure of the bar examination remains the same (well, except in Indiana), as do generally those of the reputable bar courses designed to prepare examinees for the test. They still have their law degrees, and the skill, intelligence, and diligence that helped them earn those degrees. They have a community of classmates, instructors, and mentors who they can rely on to share perspective and feedback on the decisions they do make. They have a certain task, they have certain abilities, and they have certain resources. In the face of uncertainty, those are best certainties to have.
Monday, May 11, 2020
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.
Thursday, May 7, 2020
I once had a teacher tell me to never read good books. Never ever. And why not?
Because if I spent my time reading good books (or doing good things), then I wouldn't have time left to read the really great books (or do the really great things of life).
That's a lesson that has never left my side.
In bar prep, I'm convinced that too many are trying to do too much, and, in the process of doing good tasks, they aren't doing the great things that are really important for success on the bar exam. Let me be frank. You don't have time in bar prep to do good things. But, you have plenty of time to do the really great things, the things that produce fruitful learning.
With that in mind, here's a few tips:
- Do less reading and more pondering the law, how it works or doesn't, and what it means to you as a person.
- Do less note-taking and more puzzling through problems to learn the law.
- Do less testing and more practicing, feeling free to work problems over slowly, reading them out loud if you'd like, as you develop confidence and competence in your own voice as an expert problem-solver.
That's just a few suggestions.
But, rather than hear it from me, a teacher, I thought I'd share the wisdom of a recent successful bar-taker in that person's own words. After all, they say that a picture is worth a thousand words (but the wise words from the heart & mind of a recent bar taker -- who wants to share with YOU what she/he learned through re-taking the bar exam -- is worth a priceless fortune).
Advice for First-Time Bar Takers:
- Practice way more than you think! If you are wondering whether you should watch a lecture or do a practice question, do the practice question.
- Let go of memorizing everything. It is impossible. Learn what your weak areas are and spend more time with those subjects.
- You will feel like you know nothing until approximately the last week of bar prep. Somehow, magically, it does come together. I promise.
- Do all the bar prep practice tests.
- Think really hard about who you want to study with. This is not the time to do something different from how you handled law school.
- Come up with a plan and stick to it. The bar prep calendar is really helpful for this. Decide how many practice questions you want to do everyday and do it. But if you are starting to burn out, be OK with taking breaks. It's a marathon!
Advice for Fresh Start Re-Takers:
- First, I am so sorry that you have been dealt this card. There is no question that it hurts. Take care of yourself and do things that make you happy.
- As you begin planning your next round of bar prep, make sure to work with the law school to identify the weak aspects of your exam answers. This will help define ways you can “work smarter” instead of “work harder.”
- Also work with the law school to identify new ways to study. It might be changing up your study tool or how you review your answers. For me, studying ALONE the second round vastly improved my scores. I think studying alone boosted my confidence because it required me to look up answers to my own mistakes. I also stopped comparing myself to friends.
- Ditch the bar prep lectures. Use that time to practice WAY MORE MBE and MEE practice questions. I probably tripled the amount of practice questions I did during my second round of bar prep.
- Log your progress. I was way more intentional about compiling lists of rules I kept missing on MBE questions. This helped me to keep track of weak areas so I could spend more time learning the law in specific subjects.
- Spend timing thinking about any testing anxiety you might have. Adding mindfulness meditations to my study plan helped a ton!
That brings me back to the start of this little essay. How do you know what are the really great books to read (or the great things to do)? That's were wisdom comes in. Reach out to a person you trust, on your faculty or staff or from a colleague or mentor who knows you as a person from head to toe. The advice that I've shared in this blog is from such a person, who, although he/she doesn't know you, knows you, because she/he has cared enough to share with you the lessons learned through the process. So, you have a friend who is rooting for you (and that includes me too!).
Monday, May 4, 2020
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.
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?”
 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.”
Thursday, April 30, 2020
Often times I hear students suggest that what they are learning in law school seems so unmoored to the reality of the world, especially in the midst of this pandemic. I wonder. Could there be a way to connect law school learning to real life experiences? More to the point, to the extent that students feel that way, that might be our fault for failing to use the latest news events as tools to facilitate and enhance our students' learning.
So, here are a few examples of some rich possibilities to help bring the gap between academics and practice as students finish their online classes and prepare for their upcoming final exams:
I. Retrieval Practice - Fed Civil Procedure (Venue):
Perhaps this ongoing story caught your eye about the Cuban doctors suing the Pan American Health Organization, an agency of the United Nations in federal court in Miami, Florida. Cuban Doctors Who Worked in Brazil Sue International Organization Alleging Forced Labor, Miami Herald (Nov. 30, 2018).
According to recent press reports, this class action is pending a decision by the judge as to whether to transfer venue to Washington, DC, from Miami, Florida.
Here's some of the questions that I asked students: (1) What's the standard for a request to transfer venue? (2) What's the rule for the initial venue choice? (3) What are the basic requirements for a class action case?
II. Retrieval Practice - Property and Contract Law (Marketable Title & Contract Defenses):
Here's one for the 1L students preparing for final exams. It seems that a Chinese company is suing a South Korean company in State Court in Delaware to compel (i.e, for an order of specific performance) the defendant to close on a real estate deal to buy a portfolio of 15 luxury U.S. hotels. https://www.wsj.com/articles/former-anbang-unit-suing-south-korea-s-mirae-for-failure-to-close-on-5-8-billion-hotel-portfolio-purchase-11588006092?mod=searchresults.
According to the news article, the defendant asserted two grounds for its refusal to close the deal as justification for its breach of a property sales contract. First, the defendant argues that the COVID-19 pandemic serves as valid contract defense of impossibility to perform. Second, the defendant argues that the title for the hotel group was unmarketable at the time of closing earlier this month because a "California individual had secretly created fake deeds [that] purported to transfer ownership of at least six hotels in California [in the hotel group]. Id.
Here's some questions to ask of students? (1) What's marketable title mean? (2) Is the defendant entitled to a contract defense to prevent specific performance? (3) is this lawsuit a common law contract case or a UCC Article 2 case and why?
According to a recent media report, several individuals have filed suit against the California governor alleging that the governor ordered the state police to stop issuing permits for protests on the state capital grounds while "noting the Capital in Sacramento has hosted a variety of [other] demonstrations." https://www.msn.com/en-us/news/us/california-faces-civil-rights-lawsuit-after-highway-patrol-bans-rallies-at-state-capitol-over-coronavirus/ar-BB13lbI7.
The plaintiffs alleged violations of their First Amendment rights, presumably on grounds that the state capital park area is a public forum in which few restrictions of speech are permissible. There also seems to be lurking an equal protection issue based on allegations of differential treatment based on the content of protesters' messages.
Here's a few questions that come to mind? (1) What's a public forum? (2) What's the test for speech restrictions on a public forum? (3) What test would you use for equal protection analysis?
Here's one last suggestion...
With final exams soon to begin, the news is a great way to (a) mix up practice with a variety of different subject matters; (b) help students issue spot and analyze legal issues; (c) develop and strengthen student confidence as problem-solving subject matter experts; (d) encourage students that what they are learning today is valuable for their tomorrows; (e) energize students in practical ways to incorporate retrieval practice and analysis in their final exam preparations; and, (f) help students see how lawyers, the judicial system, and litigants interact in the public sphere to shape social and political policies. So, keep your eye out for the latest news. It almost always has a few legal issues or more buried in it. (Scott Johns).
Tuesday, April 7, 2020
The last few weeks have been extraordinary in dizzying ways. A massive and abrupt shift to online teaching; a disruptive delay in administration of the bar examination; increased academic, professional, and/or personal responsibilities; fears for one's health or the health of loved ones; actual physical illness; loss of income; loss of planned employment or experiential opportunities; long-term economic uncertainty; social isolation and loneliness -- any one of these would be distractingly stressful to a student or teacher under ordinary circumstances, and many of us and our students are facing most of them simultaneously.
The saving grace has been the correspondingly extraordinary response -- demonstrations of grit, resourcefulness, generosity, and positivity -- that the situation has generated. Administrators and technicians working 16-hour days to keep classes and resources flowing. Educators implementing and sharing creative solutions to the problems of distance learning, and making special efforts to keep students engaged. Students accepting their changed circumstances with remarkable flexibility, increased effort, and gracious understanding. And, as a backdrop, millions of people, throughout the country and the world, working, sharing, and cooperating towards common goals.
But these last few weeks are really the first few weeks. To many they seem much longer already, but everyone -- law schools included -- faces an even more extended period of disruption and deprivation. That burst of energy and goodwill with which our students faced the initial transformation will have its limits. Even our own stockpiles of buoyancy and resilience are going to be threatened.
That is normal. It is really a form of culture shock, and as anyone who has experienced culture shock can tell you, there will be a cycle of highs and lows until we fully acclimate to our new world. We can all deal with these, one way or another, but the best way is with open eyes and thoughtful consideration. Expect at some point to feel exhaustion and discouragement in ourselves, and to recognize them in our students and colleagues.
Plan for it if you can -- be thinking ahead about when (soon!) you can take some time for yourself, and about how you can encourage your students to do the same. Classes will be over in a few weeks, exams a few weeks after that; a little downtime right about now, and then after exams are over, can help to stretch everyone's reserves.
Reaching out to others for support -- sharing or trading tasks, enjoying a little social time (like a virtual happy hour), or even just mutual commiseration about how tough it has been -- should be a little more manageable at this point, now that we have all familiarized ourselves with our new schedules, our formerly unfamiliar conferencing tools, and the proper guidelines for face-to-face-but-still-six-feet-away interactions.
And, most importantly, don't let the next plunge in spirits catch anyone by surprise. Let your students know -- gently, not with a sense of foreboding -- that it would be natural to start feeling low at some point, and that the feeling will not be permanent, and that you can be there for them while it lasts. Help them to focus on the tasks that will help them not only get through the next several months, but also accomplish things they will be proud to talk about years later. And remember that you will not be immune, and that taking care of yourself is another way to help you take care of your students.
Thursday, March 5, 2020
Every once in awhile I have a "aha" moment. I stumbled into this one, and I'm not the same because of it.
As background, a student reached after having failed the MPRE on multiple tries despite having watched commercial bar review lectures, creating personal study tools, and working lots and lots of practice questions.
I was so impressed with the student's preparatory efforts. The student had created spectacular blackletter study tools. The student knew the law backwards and forwards and could retrieve rules in a flash. And yet, the student missed question after question despite lots of practice in working through and analyzing problems.
That's when it came to me.
My student had learned the law - cold - but was still missing questions because the student had not learned the culture of how the law was tested. Based on my student's prior experiences as an attorney, I asked how my student had learned to solve legal problems as an attorney. My student explained that the key was in learning the culture of how the law applied to client problems.
Likewise, I suggested that perhaps the key to success on the MPRE lies in learning the legal culture of the MPRE. With this thought in mind, my student focused preparation efforts anew on learning MPRE culture rather than MPRE law. And guess what? The student passed the MPRE with flying colors!
Based on this admittedly anecdotal experience, my sense is that many students do not pass the MPRE because they focus on learning the wrong thing. They try to learn the law without learning the socio-legal context of how the law applies - the culture of the law.
With this thought in mind, I now suggest to students that they work through practice problems as armchair legal sociologists to learn the culture of what is being tested. In short, in my opinion, the MPRE doesn't really test the law as much as it tests the legal culture of the law. (Scott Johns).
Wednesday, February 26, 2020
This week we, as in the legal community, are in the midst of the February Bar Exam. For many taking the Feb exam, this can mean that they weren't successful in July. This isn't always the case, there are plenty reasons to take the bar exam in Feb for the first time. However, working with repeaters has made me reflect quite a bit on growth mindset and the importance of grit.
Grit is defined, by the Merriam-Webster dictionary, as "firmness of mind or spirit, unyielding courage in the face of hardship." Growth mindset is a frame of mind, a belief system we adopt to process incoming information. People with a growth mindset look at challenges and change as a motivator to increase effort and leaning. Most experts agree that grit and growth mindset are the most important factors in success.
Let's start with Grit. An entire book on grit was written by Angela Duckworth. (See her website for information on her book, as well as her grit scale - https://angeladuckworth.com/) Angela Duckworth is a professor of psychology at the University of Pennsylvania, and founder and CEO of Character Lab. She started studying why certain people succeed, and others don't. She began at West Point Military Academy, studying why some complete the "Beast Barracks", essentially a boot camp, while others drop out. Given that to get into West Point, there was a certain similarity of background, in term of grades, extracurricular, etc. she set out to see if she could predict who would make it, and who wouldn't. It turns out they couldn't predict this based on grades, or background, but could base it on a grit scale that Prof. Duckworth created. The grittier the West Point cadet, the more likely they would complete the "Beast Barracks". She later expanded on her studies and found that the grittier you were, the more likely you were to complete a graduate degree. She further expanded this to other professions, Olympians, etc, and found that generally, the more grit you had, the more like you were to succeed.
This applies to law school, the bar exam, and the practice of law. Grittier people get back up. They fail, but they learn from that failure and try again. And sometimes try over and over again. However, the key is always learning WHY you failed. This brings me to growth mindset. Dr. Carol Dweck coined the terms "fixed mindset" and "growth mindset." These terms describe the underlying beliefs we have about learning and intelligence.
Professor Dweck explain why a fixed mindset can negatively impact all aspects of your life, but especially your learning:
"Believing that your qualities are carved in stone creates an urgency to prove yourself over and over. If you have only a certain amount of intelligence, a certain personality, and a certain moral character, well then you'd better prove that you have a healthy dose of them. It simply wouldn't do to look or feel deficient in these most basic characteristics.
I've seen so many people with this one consuming goal of proving themselves in [a learning setting], in their careers, and in their relationships. Every situation calls for a confirmation of their intelligence, personality, or character. Every situation is evaluated: Will I succeed or fail? Will I look smart or dumb? Will I be accepted or rejected? Will I feel like a winner or a loser?
But when you start viewing things as mutable, the situation gives way to the bigger picture.
This growth mindset is based on the belief that your basic qualities are things you can cultivate through your efforts. Although people may differ in every which way in their initial talents and aptitudes, interests, or temperaments, everyone can change and grow through application and experience.
This is important because it can actually change what you strive for and what you see as success. By changing the definition, significance, and impact of failure, you change the deepest meaning of effort."
In short, if you focus on learning for learning's sake, and not the end result, like grades or the bar exam, you will get more out of your effort! As a law student, focus on learning the law, and learning to be the best lawyer you can, will help you be more successful. (Here is the website on mindset, where you can take a quiz to find out where you are on the mindset scale, and learn more about the years of research done by Prof. Dweck - https://www.mindsetworks.com/science/)
Grit and growth mindset also take practice. Those that are grittier know that they have to put in the time and effort, that no one is just a "natural" - there is always behind the scenes work. Again, this also takes serious self reflection to learn from each failure, and to learn from each success. If you are a law student, assess your exams. Learn to assess your practice hypotheticals. Reflect on how you can improve. If you are studying for the bar, learn to track MBE questions and learn from each practice essay. If you are a practicing lawyer, learn from each and everything you do, whether it ended in a win or a loss. There is always room for improvement, and that is what makes successful people successful.
I don't think lawyers, as a profession, talk enough about our failures, or ways we can improve. Therefore, the messaging doesn't get passed down to students. But we have to make it the norm to fail, and get back up again. That needs to be part of our culture.
It should also be noted that I'm biased, because as I'm writing this I'm working on an entire CALI lesson on growth mindset and grit for law students, so if you are a student, look for that soon, and if you are a professor, feel free to pass it along to your students. In that lesson, I encourage students to reflect on failures, and what they learned. I encourage you all to share your failures, and how you bounced back, with your students.
Stay gritty! (Melissa Hale)
Monday, February 24, 2020
The bar exam is so much more than a test. It is an arduous all-encompassing journey that begins with months of study and practice. Today, the journey comes to an end for the February bar takers. As we send positive thoughts and well-wishes to our students taking the bar exam, we should consciously acknowledge the individuality of the journey for each student, the diversity of experiences, and the sacrifices that were made to reach this point.
Bar takers of all ages and backgrounds have sacrificed, surrendered, lost, ignored, delayed, and missed so much while studying for the bar. Yet, life circumstances would not pause during bar study. Some wed, or welcomed a new child; others dealt with the loss of a pet or family member; some faced separation or divorce; while others moved in, moved away, or moved back home. There are bar takers who made the necessary decision to leave young children in the temporary care of family or friends, while others had to find ways to incorporate parenting and family time, or perhaps elder care, into the bar study routine.
For so many, there were financial struggles. Students took out loans to pay for a bar course, to eat, to live. Some quit their jobs for full-time bar study; others lost their jobs because they could not keep up with the hours and the demands of study. Repeat takers managed the stigma and financial distress of a second, or third, bar prep period. No dollar amount can truly capture the real cost of studying for the bar. There is a toll on your body, your back, your hands, and your eyesight.
Bar takers everywhere, we see you. We acknowledge your struggle. We affirm your efforts and we cannot wait to celebrate your success!
Monday, February 17, 2020
Bar takers, you have seven study days remaining to prepare, to take one last look at your bare bones outlines, to try to crack the code for recognizing recording statutes, and to improve your speed at performance testing. Adding to the angst of sitting for an exam that will determine entry into your chosen profession, is the foreboding fact that national bar passage rates have declined and not returned to prior years heights. News from bad to scary, logically, can lead to doubt and self-debasing thoughts like who am I to pass if as few as four of every 10 bar takers pass the bar in some states?
The negative thoughts creep in and resound even louder to those who entered law school against the odds. Those with LSAT scores below 150; those who juggled working to provide for a family by day, and the competitive rigors of law study by night; those who managed the anxiety of chronic illness and attendance requirements; those who faced implicit biases that created a presumption of lower competence and precluded their appointment to prestigious posts; those whose humble social or financial backgrounds placed them in a daily battle with imposter syndrome; those whose law schools don't rank elite; and those who’ve found a home in the bottom quartile of the law school class are left to silently question who am I to pass?
Let these words be the fight song for the academic underdog. You entered law school, wind at your front, and made it. You fed your family and persevered. You commuted two hours to and from school and made the 8:00 AM lectures. You tutored yourself. You feared failure, but kept going. You ignored the rankings, and focused on your exams. When things got hard, you got harder. So to those who still question, who are you to pass . . . ?
I ask the better question: who are you not to?
 The Louisiana Bar Examination is administered February 17 – 21, 2020, eight days before the administration of the Uniform Bar Exam and other state bar exams.
 Mark Hansen, Multistate Bar Exam Average Score Falls to 33-Year Low, A.B.A. J. (Mar. 31, 2016). See also Jeffrey Kinsler, Law Schools, Bar Passage, and Under and Over-Performing Expectations, 36 QUINNIPIAC L. REV. 183, 187 (“Between 2009 and 2013, nationwide firsttime bar passage rates remained in the high seventy percentile range with three years at 79%, one year (2013) at 78%, and one year (2012) at 77%. Those nationwide bar passage numbers slid from 78% in 2013 to 74% in 2014, 70% in 2015, and 69% in 2016.”).
 Joshua Crave, Bar Exam Pass Rate by State, LAWSCHOOLI (Jan. 29, 2019), https://lawschooli.com/bar-exam-pass-rate-by-state.
*adapted from BarCzar Blog originally published April 2018.
Thursday, February 13, 2020
Let me ask you a couple of questions posed by a recent article (illustrating how easily our minds can mislead us). M. Statman, Mental Mistakes, WSJ (Feb 9, 2020).
First, do you consider yourself an above average driver?
Second, do you consider yourself an above average juggler?
Most of us answer the first question: "Yes, of course I'm an above average driver." In contrast, most of us answer the second question: "No, absolutely not. Why, I can't even juggle so I'm definitely below average." But context matters in determining whether our answers to these questions are accurate. Id.
Let me explain.
Take driving. Most of us think that we are at least average drivers (and most likely above average) because we drove today and didn't (hopefully) have an accident. But most drivers are just like us. They didn't have accidents either. Id. Consequently, at least half of us have to be below average and the other half above average. And, because we haven't yet explored any factual evidence in order to accurately gauge our driving abilities (such as accident records, traffic tickets, etc), we are often mistaken about our driving abilities.
Now let's take juggling. Most of us can't juggle at all, and, because that includes virtually all people, we are probably at least average jugglers (and maybe even better than average jugglers!). Id. You see, evidence matters in judging accurately. Id.
Likewise, with respect to learning, most of us think that we are at least above average with respect to easy tasks (like driving) but below average with respect to the hard tasks of learning (like juggling). However, without concrete facts to evaluate our learning, we are likely wrong. And that's a problem because if we don't know what we know and what we need to know we can't improve our learning...at all. Indeed, that's why learning can be so difficult. We tend to get stuck within our minds, our own framework, seeing what we want to see rather than what is really true about our learning.
So, as you evaluate your own learning, step back. Ask yourself how do I know what I think I know. Challenge yourself to see from the perspective of others so that you don't miss out on wonderful opportunities to improve your learning. Be honest but not harsh. Focus on identifying ways to improve.
If you're not sure how to go about self-reflective learning, here's a quick suggestion:
Take for example an essay answer that you've written.
First, find, identify, and explain one thing that in your writing that is outstanding (and why).
Second, find, identify, and explain one way to improve your writing (and why that would be beneficial).
Indeed, towards the end of most meetings with students, rather than telling my students to do "this or that," I ask them to tell me what they've learned about themselves from talking together and what can they do to improve their own learning. And, I don't stop with just one answer. I keep on asking until we have at last three concrete action items, all of which sprung out from them rather than me. That's because the most memorable learning happens in "aha" moments, when we see what we didn't see before. And, after all, isn't that the essence of learning...seeing anew with free eyes to boot.
Monday, February 10, 2020
And you'll finally see the truth, that a hero lies in you. Mariah Carey and Walter Afanasieff
Every lawyer who has completed the journey that begins with law school and ends with a multi-day bar examination knows the anxiety, the overload, and the sheer exhaustion that is bar study. There is no shortage of horror stories involving the bar exam.1 Virtually every attorney has a bar-related cautionary tale. Some of these tales recount the angst of making up legal rules to answer an essay question about which they had no clue how to answer.2 Other tales may involve the heart-stopping panic brought on by “Barmageddon” when technology glitches prevented examinees from electronically submitting their essays.3 The bar exam is a grueling rite of passage that no attorney wants to revisit or repeat.
But not accounted for in the published bar pass lists and statewide bar statistics is a group of unsung heroes that contribute in meaningful ways to the attorney rosters of each state. This group is largely unnoticed, unnamed, or misnomered as law school academic support staff, professional development personnel or even student services providers. These gifted folks, whether or not named or recognized, essentially relive the nightmare that is bar prep two times per year, every year, without break or exception, and without earning any additional licensure.
So, here’s to the bar prep heroes who, despite already having at least one law license, restudy, listen anew to lectures, and peruse endless pages of commercial outlines in search of changes to a majority rule or a better way to explain testable material. Hat tip to my colleagues in the trenches who biannually endure the round-the-clock cries for help, the endless essay grading, and the ulcer generating impathic nervousness for the aspiring attorneys in whom we are emotionally invested.
As the end of February draws nigh, you will soon return to regular sleep patterns and be able to answer the 100+ unread messages in your inboxes. Yes, all will be back to normal . . . except for the two to three months filled with delightfully dreaded anxious anticipation of released results. You are the heroes on the other side of bar prep.
 Marsha Griggs, Building A Better Bar Exam, 7 Tex. A&M L. Rev. 1 (2019).
 Karen Sloan, Software Maker Settles Barmageddon Class Action for $21 Million, NAT’L L.J. (May 15, 2015, 12:26 AM), https://www.law.com/nationallawjournal/
Sunday, February 9, 2020
So how can we avoid having a student’s working memory become compromised? There are a lot of different methods for doing so.
Practice Really Does Make Perfect
If we want to get better at anything, we have to practice it. A lot. This isn’t a novel idea, most of us know this instinctually or through our experiences. Malcolm Gladwell makes a very compelling argument in his book Outliers that in order to become an expert in any field or task, you must put in approximately 10,000 hours of practice. For example, Tiger Woods needed 10,000 hours of practice before he became a top-flight golfer, and he had amassed that mount of practice at a fairly young age because he had been trained since the age of 2 to play golf. By the time The Beatles had any real success, they had played 1200 times over a period of a few years, playing up to 8 hours at a time.
Skadden, Arps, Slate, Meagher and Flom became one of the largest and most powerful law firms in the world because its founders practiced hostile takeover law for decades before hostile takeovers became common – and being a master in that area of law became insanely valuable. That amount of practice shouldn’t be required to avoid the choke on a law school exam, but practice is certainly going to help.
So what might a student do in order to be better on pressure-packed law school exams, or even the bar exam? Take lots of pressure packed exams of course! Faculty can’t replicate the pressure of a bar exam perfectly, but they can put the students under pressure as often as possible. For example, one thing we do is have students take lots of timed, in class, for-credit examinations throughout certain courses. Students are subjected to the pressure of doing well to pass their course, the pressure of performing with their classmates around, the pressure of the clock ticking, not to mention the simple pressure placed upon themselves to perform as best they can. This training can greatly improve results, and might actually change the physical wiring of student’s brains.
Practice and experience can actually change the structure and function of people’s brains. London cabbies, who must navigate the city from memory all day, have enlarged hippocampus, the part of the brain that deals with navigation and recollection of driving routes. Individuals trained in juggling have increased brain mass in the areas of the brain that understand motion. Musicians, who must have superior control of both hands and be able to coordinate them in complex manners, have enlarged corpus callosum. The corpus callosum is the connection between the two halves of the brain that allows for the two halves to communicate with each other – an essential function for a musician who needs their hands to work together.
This makes sense when you think about our bodies’ ability to adapt to what we throw at them. I may not be able to go out and run a marathon tomorrow, but if I take the time to train my body to be able to do something like that, then it can be done. Likewise, practice under pressure can train our brains to manage pressure and stress much more efficiently. It can teach us to handle the pressure and allow our working memory to function at its highest level.
Practice has another terrific benefit for our working memories. Through practice, mental processes can be automated. Take for example a child learning how to tie their shoes. When the child is first learning this process, it requires most of their working memory to tie that shoelace – they have to focus on the process that was recently taught to them and make sure they are executing the steps properly. After lots of practice, however, the same child can carry on a conversation or perform some other mental task at the same time they tie their shoes. Why? Because they have automated the process of tying their shoes, thus freeing up their working memory for other tasks. Another way to look at it: the process for tying shoelaces has moved from the child’s working memory into procedural memory.
The same process can happen for students in law school. This is why we teach and drill our students on the proper use of IRAC throughout law school, for example. Through long periods of practice, the process of structuring an essay around an IRAC format can become automated. It becomes something the student doesn’t have to think about; they just do it as they have done a hundred times before. That frees up the student’s working memory to focus on handling their facts and doing good analysis.
Another example comes during bar exam preparation. We always teach our students to have rule statements memorized for as many different issues as possible. That way, when that particular issue shows up on the bar exam, the student has that rule statement in their procedural memory ready to go. They don’t have to think about it, they just write. Again, working memory is freed to focus on other things.
Practice is something that many of us already know is very effective in helping students achieve on exams. The rest of the suggested methods for dealing with difficult and stressful exams may not be as apparent to many.
Preparation and Confidence
A related concept to practice is preparation. The concepts are related, yet differ in important aspects. Practicing is when you actually do the task you are ultimately hoping to accomplish – for example, practice exams to get ready for the real exam. Preparation is different – this is the studying required to have the baseline knowledge required to perform well on the exam.
The need for preparation is obvious – if we need to prepare for an exam on ancient Greek history, we must study ancient Greek history, as well as write practice exams. But there is an added benefit to preparation, and it is confidence. When you know that you have thoroughly reviewed all required materials, you can answer questions about that material with more confidence. There are no surprises, and nothing rattles you because you have seen it all before – in both your preparation and your practice.
Famous trial attorney David Boies perfectly demonstrates how important preparation can be. He describes his preparation as such:
“When we showed up for the opening statement, I had read every single exhibit we had marked before we marked it. I had read every single deposition excerpt that we had marked for offering into evidence before we had marked it. I had read every single deposition line they had offered.” Such preparation required reading thousands of pages of documents, something most lawyers don’t do in preparation for trial because of the massive resources required to do so. “There are no surprises for me, but you can’t imagine how few people that’s true for” he says. “There is no way most lawyers do that.”
This preparation gives Boies a major advantage. He knows all of the material so well that he can remain focused on the story he wants to tell – not on reacting to what the other side might be saying. “When I get up there, I have the confidence of knowing what the total evidence record is, and I know how far I can push it and how far I can’t. I know what the limits are, and that’s the way you maintain your credibility.” And it is this credibility that wins him major cases, such as the antitrust lawsuit against Microsoft in the late 1990’s. “Most good lawyers lose credibility in a trial not because they intentionally mislead but because they make a statement that they believe is true at the time and it is not.”
Preparation can then clear your working memory to focus on the task at hand. In Boies’ case, he is never caught off-guard by anything during a trial, as happens to so many attorneys. He has seen everything before, and as he says “there are no surprises.” He can focus on his story, on his goals, and not get distracted.
For even more practical advice on this topic, see the Fall 2018 issue of the learning curve on ssrn. That issue includes additional information on overcoming negative stereotypes, journaling, and meditation to improve exam performance.
(Kevin Sherrill - Guest Blogger).
Sian Beilock, Choke: What the Secrets of the Brain Reveal About Getting it Right When You Have To, Free Press Publishing, 2010.
Paul Sullivan, Clutch: Excel Under Pressure, Portfolio/Penguin Publishing, 2010.
Larry Lage (June 26, 2008). Mediate makes the most of his brush with Tiger, The Seattle Times, Associated Press. Retrieved October 24, 2013.
Gerardo Ramirez and Sian Beilock, Writing About Testing Worries Boosts Exam Performance in the Classroom, Science Magazine, January 14, 2011 (Vol 331).
Daniel T. Willingham, Why Don’t Students Like School?, Jossey-BassPublishing, 2009.
S.J. Spencer and C.M. Steele and D.M. Quinn, “Stereotype threat and women’s math performance.” Journal of Experimental Social Psychology, 35 (1999).
Matt Scott, Olympics: Korean Double Medalist Expelled for Drug Use, The Guardian, Retrieved on October 25, 2013 from http://www.theguardian.com/sport/2008/aug/15/olympics2008.drugsinsport
Malcolm Gladwell, The Art of Failure, The New Yorker, August 21 & 28, 2000.
Malcolm Gladwell, Outliers.
Tuesday, January 28, 2020
It is an oddly resonant time of year.
This has been happening for the past week or so:
- A student comes to my office to talk. It's a 1L student, wrestling with a mix of shock and panic after receiving first-semester grades. They did not do as well as they had expected, and they are not sure what that means. Are they really smart enough for law school? Will they even make it through the first year? They are willing to work hard to improve, but they don't even know where to begin, and they are not sure that they will improve enough to make it. I explain that of course they need to take their grades seriously, and that they do have a good deal of progress to make, preferably as quickly as possible. However, I note, it is not unusual for students not to reach their fully potential right away, especially when transitioning into new types of tasks, and that they do have time to get themselves where they want to be, as long as they are diligent and thoughtful and make every effort to learn useful lessons from the disappointing evaluations they have received so far.
- Next, a recent graduate comes to my office to talk. It's someone preparing to take the bar exam in February, wrestling with a mix of shock and panic after receiving the results of their first simulated MBE exam. They did not do as well as they had expected, and they are not sure what that means. Are they really smart enough for the bar exam? Will they even pass? They are willing to work hard to improve, but they don't even know where to begin, and they are not sure that they will improve enough to make it. I explain that of course they need to take their score seriously, and that they do have a good deal of progress to make, preferably as quickly as possible. However, I note, it is not unusual for examinees not to reach their fully potential right away, especially when transitioning into new types of tasks, and that they do have time to get themselves where they want to be, as long as they are diligent and thoughtful and make every effort to learn useful lessons from the disappointing evaluations they have received so far.
- Next, another 1L student comes to my office to talk . . .
It is the nature of our jobs that we sometimes find ourselves trying to convey multiple messages -- sometimes contradictory -- at the same time. In January, this messaging consists of finding the right balance of intensity and perspective, of patience and urgency, of recognizing the effects of circumstance and shouldering the burden of personal responsibility. It can be tough in part because the people we counsel can be so different -- words that barely allay the anxiety of one person might be enough to lull another person into a false sense of self-confidence. Better to calm our advisees down just enough for them to be able to hear and take in our more practical suggestions about focusing on step-by-step goals, specific tasks, and formative assessments, which provide them not only with routes to get to where they want to be, but also help them strengthen their abilities to more accurately judge their performance and progress.
For those preparing for the February bar, it might also be worthwhile reminding them that they may have had similar moments of uncertainty when they first entered law school. They figured out enough to get obtain their J.D.s. Why should they doubt that they have the capacity to figure out how to clear that final hurdle?
Thursday, January 23, 2020
Research suggests a relationship between a positive growth mindset mindset and improved learning. C. Dweck, G. Walton, G. Cohen, Academic Tenacity: Mindsets and Skills that Promote Long-Term Learning (2014). Consequently, I've been trying to "read" the minds of my students (and they often seem to look sullen, downtrodden, and burdened).
To be frank, that might well be my fault because I don't always accentuate the positives about the difficulties involved in learning. Yet for most of us, we realize that it's in the midst of the hard spots of our lives that our character was shaped. In short, we grew into the people we are today because of how we pulled through the difficulties of yesterday. And that's why learning is...growing our minds. So, why not see learning in similar light?
Here's a couple of suggestions that might help your students approach learning with a more positive growth mindset:
First, my best classes are when I leave room at the end of the class, well, for learning (or at least reflecting on learning). Here's how: I ask students to mingle about what they learned today. Instantly faces are transformed into beams of sunlight; frowns are replaced by the warmth of smiles; and, most significantly, the class becomes alive with criss-crossing conversations. Then, I open up the floor...and the floor fills up oh so quickly. Hand over there, another over here. Three over there. More that away. In short, as students open up, they come to appreciate that they have learned a great deal (and that most of their learning came through courageously probing mistakes made).
Second, I toss out a statement - in my best vocal rendition of Eeyore as possible - gloomily saying: "Oh my...oh me. Woe is me. I missed...another...problem." We then contrast that mindset with Winnie the Pooh: "Oh, look, there's honey over there, up in the tree, and back over there, why, there's even more honey; there's honey everywhere!" Suddenly students recognize that law school life is not really as gloomy as they think it is, that there's plenty of "honey" to be gathered from every problem that we miss; that it's in "climbing up the trees" and putting our hands in the thick of the "bee hives" that leads us to even more honey...because, well, "where's there's bees--there's got to be honey."
In short, it's in the midsts of mistakes that we learn best. So, to sum up what I've gleaned about learning from Winnie the Pooh and Eeyore it's this: "The best learning is like honey; it's a sticky mess of a problem (but a mighty good treat!)."
P.S. To learn more about Winnie the Pooh and friends, visit: https://winniethepooh.disney.com/winnie-the-pooh
Monday, January 20, 2020
Across the country this week, bar candidates will take a full-length practice exam. Your first simulated MBE scores may not be exactly what you expected. I took my first bar exam years ago, but I still remember the shock of my first practice test score. I could not believe my eyes. Never before had I seen a percentage so low. My practice test results triggered a fight or flight instinct in me. For others, this week's results may yield any one of a host of emotions: fear, devastation, sadness, indifference, or overconfidence. Bar passers must develop the coping mechanisms to rebuff these counterproductive, yet understandable, emotions.
The first step in your battle for resilience must be to reflect on your pre-bar journey. Approximately three years ago, you were wondering if you would get into your first-choice law school — or any law school for that matter. Once admitted, those first-year exams made you question your ability to make it through law school. Yet somehow by grace and sporadic unhealthy doses of caffeine, you are here with a law degree and one test that stands between you and the practice of law. What began as a quest both shaky and unsure, is now a dream realized. How you started is NOT how you will finish.
The second step is self-assessment. You may have learned that while you love e.g. Torts or Contracts, they do not reciprocate your sentiments. You may be equally shocked to discover that you excelled in a dreaded subject area, proving that you know the doctrine of equitable conversion and standards of review far better than you previously led yourself to believe. Analyze your practice exam results to identify your areas of strength and weakness.
The third step is to slow your roll. Before looking to new sets of practice questions, revisit questions that you have already answered and missed. Don't reread the answer explanations. Instead reread the question facts. It is highly likely that you may know the tested rule of law, but missed some key detail in the fact pattern or misread the call of the question. It is unwise to do more practice questions until you fully understand how to analyze and answer the ones you've already answered.
The fourth and final step is to execute a plan of attack. Once you come to terms with your weaknesses, develop an effective plan to combat them. The tools and assignments from your commercial bar review provider can only take you so far. If you need drastic improvement, consider reaching out to your law school academic and bar support team or a professional bar tutor. Sometimes the best bar therapy comes in the form of a volunteer bar coach or the supportive words of a recent bar passer.
Tuesday, January 14, 2020
I had a minor enlightening encounter this week that I thought worth sharing. I was going over the responses to some previous bar exam essay questions that a former student had wanted to review with me. One of the first questions we went over had a moderately long fact pattern involving a will of uncertain validity, and then asked simply, "Who will inherit the decedent's property?" The student properly recognized that there were several issues that had to be addressed in order to answer that question, and identified and fairly discussed most (but not all) of them.
Another question had been written in such a way that it clearly indicated that there were three specific issues to discuss: at the end of the page-long fact pattern, three separate questions were asked, in separate sentences, formatted into three separate enumerated paragraphs, as in*:
- Do you really want to hurt me?
- How can you mend a broken heart?
- Should I stay or should I go?
*Questions selected for illustration only. Not actual bar exam questions.
The student had done a fair job of answering these questions, creating a separate header for each one that incorporated the language of the question and then earnestly examining each question presented. A rule or two was misstated, some relevant facts were overlooked, but essentially the student had properly identified the relevant issues and had done some creditable analysis for each one.
A few questions later, we were looking at another question that seemed to wrap up in a similar way, with three enumerated statements. In this case, however, the question explained that one of the parties in the question had filed suit against another, and that the complaint had three allegations**:
- You think love is to pray, but I'm sorry I don't pray that way.
- You don't have to prove to me that you're beautiful to strangers; I've got lovin' eyes of my own.
- Now that I've surrendered so tenderly, you now want to leave, oooo you want to leave me.
**Valid only in jurisdictions that permit bar examination responses to be produced via karaoke.
After listing these allegations, the question asked, "Is the plaintiff likely to succeed on these issues? Explain."
As with the previous enumerated question, the student took cues from the formatting in the text to format the answer, again creating a separate header incorporating the language of each issue and then examining each issue separately. In doing so, however, the student implicitly assumed that the assertions made by the plaintiff were as sound and valid as the questions asked by the constructor of the question. In other words, the student took the precedent statements in the plaintiff's assertions -- "You think love is to pray", "I've got lovin' eyes of my own", and "I've surrendered so tenderly" -- as givens that could be employed to prove the asserted conclusions, rather than as unproven premises that needed to be demonstrated or disproved with reference to specific facts and legal rules. Thus, the analysis in this question was abbreviated and circular: "Because the plaintiff has lovin' eyes of his own, defendant does not have to prove that she is beautiful to strangers."
I pointed out to the student that, ordinarily, a decision maker would not simply take the plaintiff's assertions at face value, but would likely seek proof by citing facts and legal standards. The student acknowledged that it had not appeared, in the heat of the exam, that the implications of the two questions were very different -- the first providing three issues for analysis, and the second requiring the examinee to determine the real issues themselves. The student had not had any trouble recognizing this need to figure out the relevant issues in the first question, so it wasn't an inability to dig deeper that had prevented her from doing so in the last question. Instead, we agreed, it had been a reflexive reaction to the form of the question -- "1,2,3 means take those words as your givens". Making this explicit seemed to prepare the student to avoid doing the same thing in the future.
Just a neat little example of how the shortcuts we take, or make for ourselves, can sometimes take us places we don't want to go.