The bar exam is coming – late July – 5-6 more weeks.  I can tell because the complaining on facebook and other social media is increasing.   None of the complainers really say the exam is too hard; the complaints are that the passing rate is too low, sort of a back door complaint that it is too hard, or perhaps graded too hard.

My students have heard me say many times over the years that the bar exam is a function of effort.   You will pass the bar exam if you make sufficient effort.  If you have finished law school and got at least Cs in the foundational courses, Contracts, Property, Constitutional Law etc you will pass the bar exam if you prepare properly.

To pass the bar exam you need three things in my view:

1. Knowledge of a certain amount of rules;
2. Ability to apply those rules to a fact situation and reach a conclusion;
3. Ability to write a coherent sentence and paragraph, ability to communicate in writing.

As to 1, my personal view is that the “certain amount of rules” you need to know is pretty low.   I’ll give it to you that it is rules in a bunch of different legal areas, most of which you will not use when you start practicing.   I have not practiced in the criminal law arena in my 37 years for example.  But the amount of rules actually out there in the lawyer world is staggering.  With a zillion exceptions for each exception.  What you need to know for the bar exam is only the basics.  Most students spend far too much time trying to memorize rule after rule.

I have reread this portion of my little blog and fear I am poo-poohing the rules that you spent so much effort learning in law school.  So I will add that the “few” rules you need to know to pass the bar exam at the big ones.  What is personal jurisdiction comes up every day  and although it can be stated fairly simply, it can be a complex topic.  You must not only be able to repeat the rule but to actually understand it.  What are fiduciary duties and what are bona fide purchasers and what is the difference between a contract “condition” and a contract “promise” are big and very important rules.   For each of these rules there are several exceptions that are important.  My comment in the paragraph above this is that there are many, many cases and law review articles and mcle programs about each of those.  The complexity of those in the real world is enormous.  For the bar exam, you need know only the few basic rules – but again you need to really know the rule, not just be able to recite it back to the reader.

As to 2, this is called thinking like a lawyer.  Clients don’t ask me “what is personal jurisdiction?”  They ask me if they can be sued for a car accident they had in Arizona.  To answer that, you state the rule, then apply it to the facts.  You don’t regurgitate as many rules as you can remember and then “argue both sides.”  The ability to apply the rule to the facts starts with actually understanding the rule.

As to 3, this comes only with practice, practice, practice.

I have not graded bar exam questions, but I have graded bankruptcy specialist exams for the state bar.  And of course, I have graded many, many law school exams over the years.  A person who can write a sentence and sound like he or she is stating the rule and applying the facts will get the benefit of the doubt from the grader.  The reader can tell whether you understand the rule or you are just stating a whole bunch of rules hoping the answer is in there somewhere.  A person who spews out rule after rule which, even though completely correct, has little or nothing to do with the question  will not get the benefit of the doubt.

I’ve been thinking that I might choose three students later this year who have failed the bar exam.  I will work with them personally for  December and January for no charge and get them “over the hump” for the February bar.   To qualify a student must agree to study full time for that period, i.e., spend 40-50 hours a week doing exam preparation, i.e., studying and writing.  The student must agree to leave their cell phone at the door, and any other access they have to the internet.  They must sign up for a basic bar review course.  What I will do will be a supplement to that.    I will meet personally with the student for at least 14 hours a week, at my office.   The effort will be largely writing answers to past bar exams, probably more than once.  I will review each answer and personally discuss with the students.

I am going to check with Dean Frykberg about this.  I will post more when I decide what to do.