"Prediction is very difficult, especially about the future." Niels Bohr

Clairvoyance is the ability to know things like the future through the use of your mind alone. Many bar review courses sell clairvoyance.  They claim that their panels of experts make useful predictions about what types of essay questions will appear on the next California Bar Examination, often based on what has (or has not) appeared on the Exam in the past.

Can you predict what will be on the Bar Exam?  For ten years I was the State Bar Executive responsible to put together the Exam ... and I don't think so!  But hey...why don't I just tell you how it was done.  Then you can evaluate the bar reviews' claims for yourself.

The Committee of Bar Examiners buys its essay questions from out of state law professors.  It keeps its question inventories in "banks" by subject matter. Members of the Committee's Examinations Development and Grading Team supervise the banks.

Each year Team members request questions on specific topics for their subject matter banks.  The Examinations Director relays the requests to the law professor suppliers.  However, the solicitation doesn't always produce the desired questions. Just as all law professors are not created equal, so do their question submissions vary in subject matter, quality and utility. Sometimes the banks are replenished to the Team's satisfaction; sometimes they're not.

Question selection for a specific bar examination starts when each Team member nominates one or more questions from his or her banks.  It's true that what has been tested in the past is taken into account. But what do you do if there are no good quality questions in topics that you've requested, topics that you believe should be tested next?  My experience was that the Team members then looked instead to the best quality questions in their banks to nominate, even if their subject matters had been recently tested. I agreed with that approach.

Question selection doesn't end there.  What follows is a long and thorough process that involves extensive discussion and debate at all levels: starting with the Team, and then with the Office of Admissions staff and finally, with the Committee of Bar Examiners. It includes seemingly endless edits to ensure that these high stakes questions are of consistently excellent quality.  If need be, questions can be replaced at any step in this process to further assure that kind of quality. 

To my mind, all of this is right and proper.  It's both anticipated by and allowed by the explicit Scope of the Examination.  All areas that fall within the Scope are fair game to be tested, and for good reason.  After all, once you pass the Exam and proceed to practice law for money, you'd better know what you're doing.

 

"He who laughs has not yet heard the bad news."  Bertolt Brecht

"If one studies too zealously, one easily loses his pants." Albert Einstein

The Almost Daily Word has lately been giving you the straight skinny on the subtle and not-so-subtle signs that you could fail the California Bar Exam, and on how to decrease that risk.   You can make yourself stronger, smarter, more strategic and better prepared for what's ahead.

Here's another risk avoidance technique for your tool box:

Keep your pants on and study smarter!

Almost all the Bar Exam applicants I've met, be they first-timers or repeaters, study "pedal-to-the-metal," "24-7" right up to exam time.   They are all in danger of losing their pants.

Hal Pashler and Doug Roher, psychology professors and frequent collaborators, are fascinated by how people learn and remember.  In their article Increasing Retention Without Increasing Study Time (2007 - Current Directions of Psychological Science) they examined two well known but poorly understood study questions:  How long should one study the same material before quitting or shifting to new material, and how should a fixed amount of study time be distributed across study sessions?  What they found should be a lesson to you.

-           Know When to Quit   

Say you've devoted a study session to understanding better the various degrees of murder.  After an hour, you've been able to answer every multiple choice question you can access on the topic without error. Still, you're concerned about forgetting what you've learned. Should you immediately go over the material one more time?

According to Pashler and Roher, if the Bar Exam is more than a week away, the answer is probably no.  They call this continued studying of the same topic "overlearning," or "massing."  For about a week, it produces better test results. But soon after that gains decline rapidly. Eventually, they are undetectable.   

-           Spacing Instead of Massing

There is a better alternative to massing: spread the total amount of study time on one topic across two study sessions separated by an interval.  This  is called "spacing," and the improvement it makes on test results is considerable.  "Final test performance," say Pashler and Roher, " depends heavily on the duration of the spacing gap, with too-brief gaps causing poorer performance than excessively long gaps."

In two separate experiments, the professors fixed the amount of time they allowed their student-subjects to study. However, they varied what they called the "Inter-[study]-session Interval" (the "ISI"), the amount of time between study sessions.  Then they measured how much of what they studied the students retained, and for how long. 

In their first experiment, ISI's varied between 5 minutes and 14 days.  A one-day ISI produced the greatest improvement in test scores.  In their second, where the students were asked to remember the names of a number of very obscure objects, they varied the ISI from 5 minutes to 6 months!  Longer intervals produced even better results in the amount and duration of retention.  The optimum ISI was 1 month!

Pashler and Roher concluded that "...[P]owerful spacing effects occur over all practically meaningful time periods. ... [F]inal test performance depends heavily on the spacing gaps, with too brief gaps causing poorer performance than excessively long gaps."

-           The Take-Away

            -           Limit and optimize the time that you study a discrete topic.  It's time to quit when you have attained a reasonable (even if temporary) mastery of that limited topic. 

            -           Study a separate topic (or topics) before you return to where you started.  Or, better yet, take a break!  With time and practice you should be able to approximate your own ISI.

Use of these study techniques may be the key, both to a successful bar exam result AND to keeping your pants on.

 

"He who laughs has not yet heard the bad news."  Bertolt Brecht

In Parts One and Two of this installment of the Almost Daily Word you got the straight skinny on the subtle and not-so-subtle signs that you could fail the California Bar Exam.  Still reading? Good for you.  You can't change the past.  But you can make yourself stronger, smarter, more strategic and better prepared for what's ahead. We're onto the How of it and have already discussed learning styles.  Here are some "know thyself" questions you may not have considered.

-           What kind of personality do I have?  I'm not talking just about whether you're outgoing or shy.  Your personality is the complex of the behavioral, temperamental, emotional and mental attributes that make you the unique person that you are. 

The Myers-Briggs Type Indicator is an assessment of how you perceive the world and make decisions.  Despite differences in opinion concerning its validity among experts, it may be the world's most widely used personality assessment.  You can fill out a questionnaire on line that will help you understand which of 16 personality types you are and what that can mean to your Bar Exam preparation. 

   -        What is my emotional style?     "Flow" is the positive psychology first proposed by Professor Mihaly Csikszentmihalyi.  In a nutshell, it is a feeling of confident and single-minded immersion in a task.  When you have it you feel energized, joyful and "dialed in" to what you are doing.  You can achieve it for all or part of the Bar Exam, but to do so you'll need to harness not only your intellect but your emotions.  So, what is your emotional style?  Do you operate best when you are calm or when you are stimulated? Do you prepare best when you are reassured (say, by the presence of a teacher or mentor) or when you are a little nervous? How can you adjust your preparation to your emotional style bring out your flow at crunch time.

-           Could I have an undiagnosed learning, or other, disability?  Several times, on a hunch, I've asked my students who took the bar exam without accommodation whether they thought  they might be learning-disabled.  All of them admitted that they had.  Some eventually documented, applied for and received accommodation, with good results.  How to deal with a learning disability is a highly personal choice.  Please remember though: If you have a disability, appropriate accommodation on the Bar Examination is a right that the law guaranties to you. 

Not feeling any better after reading all this?  Don't abandon hope.  More strategies are on their way in this installment of The Almost Daily Word.

 

"He who laughs has not yet heard the bad news."  Bertolt Brecht

Part One of this installment of The Almost Daily Word of Wisdom considered whether exam-related statistics put you at risk of failing the California Bar Examination.

Those whom the statistics favor may deserve a small sigh of relief.  But don't make your swearing in ceremony plans quite yet.  There's still this "gut check" to make: four questions that only you can answer.

1-         How were your written exam grades in law school?

Law school and - yes - even bar exam essay questions vary widely in difficulty.  The statistics geeks among you won't be surprised to know that every American bar examination's statistical reliability derives from the MBE.  Nonetheless, most California Bar essay questions are originally written by out-of-state law professors for their own students.  You may have reason for concern come bar exam time if your law school essay grades fluctuated, were consistently mediocre or got worse regardless of your non-essay based grades.  And guess what: You need to be able to write a performance test too!

2-         How many clinical courses did you take in law school that required extensive writing?

This is just me, a lawyer for 36 years who writes every day, as well as a bar grader and exam director for 20 years. But I see a direct correlation between good performance test writing and good legal writing.   The Performance Test's vaunted "persuasive memo" and a"real world" points and authorities in support of a motion for summary judgment have much more in common than you may think.  If you haven't written some real world "P's and A's" as a law student, you could be going into the exam at a disadvantage.

3-         What percentage of the case law that was covered in law school did you actually brief? 

As they are expressed in bar exam answer, legal knowledge and legal reasoning are discrete but interdependent variables.  Over the course of grading 20 general bar exams, I saw answers all the time that displayed impressive rote legal knowledge but insufficient reasoning to "connect the dots."   With insufficient analytical ability when you write an answer all you're doing is playing the notes - you need to reason like a lawyer to play a song.  So if all you've been doing for the past three or four years is memorizing rules and holdings without the curiosity about how they relate that helps you brief a judicial case, you could lack a crucial skill.

4-         (For repeaters only) - How'd you do on the MBE?

I work with many repeat takers, some for more than one administration of the exam.  The ones I'd put my money on to pass on the next go-round have already achieved MBE scores at or above the "cut line."  This shouldn't come as a surprise.  The MBE is the most statistically reliable of the three measures of legal knowledge and ability (essays and performance tests being the other two) on most bar exams.  The higher your  MBE scores on your last exam were, the more likely it is that all you'll need to pass is a writing tune-up.  But if those MBE scores are low, improving your writing will only get you half-way there.

There's Hope

Seeing yourself in any of these at-risk categories can't be comfortable.  There is hope however.  Remember that you got yourself into and through college, and then into and through law school.  Not easy, especially if you were working a job or raising a family along the way. You've got skills! 

Moreover, there are things you can do to reduce your risk of failing and ease your mind.  The Almost Daily Word of Wisdom will have some suggestions in Part 3.

 

"He who laughs has not yet heard the bad news."  Bertolt Brecht

Whether you think that passing the Bar Exam is "a mortal lock" may turn on whether you're a "glass-half-full" or a "glass-half-empty" person.  If you tend look on the bright side, first time General Bar Examination pass rates of 50%  and 68% in February and July 2010 may mean you'll pass "more likely than not."  If your outlook is less sunny ... well... the "fail rates" kind of speak for themselves - don't they?

Regardless of your world view, the numbers paint a darker picture for repeaters: 22% and 31% on those two exams.  One chance in three. One chance in five!

It may be time to find a quiet space to ask yourself these questions. The statistical answers could tell you whether you'll need to make a mid-course correction to stave off a bar exam melt-down.

1-         How'd you do on the LSAT?

Together with undergraduate GPA, the LSAT is the most reliable statistical predictor of law school success.  It stands to reason that the better you did then, the better you're likely to do now.  Oh, and by the way, what was your undergraduate GPA?

2-         Did you go to an ABA-accredited law school?

I'm hoping for a "yes" answer here.  Attending a California-Only-Accredited or even an unaccredited California law school isn't a death knell to your ambitions to practice.  Still, consider these first-time pass rates from the July 2010 Exam:

Cal-ABA-Accredited:  75.2%   Out-Of-State-ABA Accredited:  68.1%

Cal-Accredited:            40.4%   Cal-Unaccredited:                    20.0%      

I won't speculate on the reasons why, but it's clear that if you got your law degree from other than an ABA school, your chances of passing the California Bar Exam are, at least statistically, at risk.

3-         Are you a repeater?

In 2010 12,788 people took the California Bar Examination.  Forty one percent of them were repeaters.  To be sure, they were a group with mixed educational backgrounds and mixed abilities.  Some were taking the examination for a third or subsequent time.  All that said, particularly if your study since your last attempt has just been "more of the same," you may be at risk.

Not moved by the statistics?  You may not be alone.  After all, Mark Twain was fond of saying: "There are three kinds of lies: lies, damned lies and statistics?"    There are always other, and perhaps better, questions to ask.  If you're curious about what those may be, hang on - Part 2 of The Almost Daily Word of Wisdom will scratch that itch.

We have met the enemy and he is us."  Pogo 

Myths abound concerning how bar graders give short shrift to applicant written answers. “They just read topic headings.” “They simply ‘glance’ at each answer before slapping a grade on it. The excuses that these legends provide for why applicants fail are convenient and appealing.  However, if you buy into them you become your own worst enemy.

Consider this.  All graders are California lawyers.  Many  (including myself) have ten or more years of experience.  Grader applications are screened by the Examinations Director. New graders attend an extensive orientation session.  Newly hired “apprentice graders” work through one or more examination cycles, doing all preparatory work and attending all meetings,  before they put a “live” grade on a single applicant answer.  To prepare for grading, all graders, new and old, research and write the answer to their question, attend three calibration meetings totaling at least 12 hours, and grade numerous “sample,” and “calibration” answers. From my experience, I’m convinced that graders never forget what goes into preparing for and taking the examination. Will you ever forget?

Here, I think, is the better assumption to work from:  Every word of your essay and performance test answers is going to be read, likely more than once, and often by two different graders.  Preparing and writing with that fact in mind is a much smarter way to go.

I have not failed.  I’ve just found 10,000 ways that won’t work.  – Thomas Edison

Some people take the California Bar Examination repeatedly – chronically - and never pass. 

The explanations for their failures appear to make sense.  They didn’t attend top law schools.  They aren’t native English speakers.  They prepared for each examination too hurriedly. 

One problem with these explanations is that they’re irrelevant. Even if they’re accurate, they can’t be changed. They don’t explain the college and law school successes that preceded each person’s string of frustrating bar exam failures. Most importantly, everyone’s background is a mixed blessing, so why put that “in play” at all.   

Another problem is that nearly as many folks (in my experience anyway) fail chronically without a single explanation that makes any sense.  They were upper echelon students in good colleges and good law schools.  They “made” law review.  They interned in federal courts.  They were “golden children." At least until now.

Since California bar results were released, I’ve had discussions and exchanged e-mails with applicants in shock, with applicants under all sorts of pressure and at the end of their ropes. The next exam is only six or so months out and passing is their highest priority. They’re willing to do anything to prepare, if only they could figure out what it should be.  They ask me “what should I do?”  Much of what I suggest, they’ve already tried.  It feels overwhelming to me; I can only imagine how it feels to them.  And so, I am attempting to write my way through my feelings about this enormous dilemma today, to my truth of it, one that I can share.

I think it is this.

Despite the vast number of bar preparation courses, on-line offerings and other study aids, easy options for multiple repeaters are actually few.  This may be because the very nature of “cram courses,”  limits what and how much can be taught and absorbed.  Simply moving from “Column A” to “Column B”  on the “bar prep” menu isn’t likely to be enough for a repeater.  An entirely new approach may be the only way.

That could be not to “prepare” for the next exam.  Insofar as the very word “prepare” anticipates a fixed event or result, it could be not to “prepare” at all. 

“Preparing,” as I have used the term, assumes facts that are not in evidence.  Such as that one’s legal education was adequate to make only this hurried and cursory review (as compared to law school) sufficient.   Or such as, that despite a sound legal education, the “aha” moments of true legal insight are still too few and far between.  A mnemonic for exceptions to the parole evidence rule won’t get it done if one hasn’t yet learned to recognize when – and why – those exceptions may apply.

 If one hasn’t yet entirely achieved the core elements of legal reasoning necessary to pass the California Bar Examination, then preparing by  “not preparing” could be an open-ended project though, with a frighteningly uncertain outcome. And how does one go about THAT?

I’m comfortable suggesting that doing the same things again is not how to go about it.  It could mean “going back to square one.”  Adding hornbooks and even case books to one’s packaged “outlines.”  Actually briefing cases, if that helps to “connect the dots” concerning when, say, exceptions to the parole evidence rule apply, and why.  For extroverted students who talk their way through the things that puzzle them, a good old-fashioned study group may be an approach.  Or a close working relationship with a trusted tutor or mentor.   Most importantly, it could mean not working backward from the next exam, but, instead, postponing the next reckoning until one has changed – really changed – really grown.

So then, what does it take to really grow?

In Antoine St. Exupery’s The Little Prince, the outer space-traveling narrator and the Little Prince discuss “the catastrophe of the baobabs,” seeds whose existence threatens the viability of the asteroid that they share. The Little Prince exhorts his reticent companion to make a beautiful drawing to warn other space travelers to avoid their considerable risks.  It is only through the greatest effort that the drawing is made, but it is the most beautiful in the book. 

“Perhaps you will ask me, the narrator says, ‘Why there are no other drawings in this book as magnificent and impressive as this drawing of the baobabs?’

“The reply is simple.  I have tried.  But with the others I have not been successful.  When I made the drawing of the baobabs I was carried beyond myself by the inspiring force of urgent necessity.”

How much does passing the Bar Exam really mean to you?

 

 

"This is a do-it-yourself test for paranoia: you know you've got it when you can't think of anything that's your fault."  Robert Hutchins (Educational Philosopher, Dean of Yale Law School and Chancellor of the University of Chicago)

When I was the California State Bar Examinations Director, I had a long time to think about bar review courses.  My impression, which I retain, was that many of them pander to applicants' paranoia about the exam.  "If you flunked, it wasn't your fault.  You were the victim of a grand conspiracy to keep you from practicing law, perpetrated principally by lazy and indifferent graders."

Here's a perspective that I think is more useful. The California Bar Exam is (a) an unpleasant necessity; (b) an imperfect but rigorously constructed and managed tool to protect all the legal "clients" of California from practitioners who don't know what they're doing; (c) the product of over 150 smart and earnest people (including question authors, graders, editors, volunteer Committee of Bar Examiners members, and State Bar staffers) who, as they say, are "just like you and me;" and (d) a legitimate intellectual exercise and "gut check" for anyone who wants to be a lawyer.  

With this in mind, I respectfully offer these suggestions.   Do everything you can to figure out what you didn't do correctly or completely that last time you took the exam.  If it was your substantive knowledge, hit the books.  If it was your performance test or essay writing, write and write and write - both on your own and with someone to help you.  If it was stress, or angst, or even panic on exam day, deal gently and patiently with that as well.  Respect the exam, and lose the paranoia.  There's no reason for it, and it won't get you anywhere anyway.

"I practice overcoming fear and adversity by overcoming fear and adversity.... I climb."  Erik Weihenmayer - The Only Blind Man to Climb Mt. Everest

I have not failed enough in my life.  It may be too early to come to this conclusion.  I'm only 61, and with my wonderful and terrible luck my life may only be two-thirds over. 

But I am intensely self-conscious and introspective.  And I recall incidents of my failure aversion throughout my life - much more, in fact, than incidents of actual failure.  Some feel mundane now and felt mundane then: not dancing (because I am clumsy); not writing (because no one would read me); not asking (for this and that).

However, other such incidents (or non-incidents) felt and feel huge, and sometimes they fill me with regret.  Not having more children.  Just going along when the situation demanded that I speak up.  Not leaving what was bad for me or pursuing what was good for me; both for fear of the unknown, for fear of failing.  In other words, not heeding the stirrings of my deepest self - the stirrings of my soul.  I never willingly put myself at risk.  Most people don't, I think.

Failure came to my life on its own a few years ago though. Disabling failure. At times, seemingly, the failure of everything.  I was lost.  And, because I was lost, I felt profoundly alone.

Fortunately, I'm better now, and very grateful.  I continuously consider why that is - what has happened and what has not.  Some of the most resonant answers are the most ambiguous. With my wonderful and terrible luck they may remain that way.  I am not who I was.  I am more forgiving, of both myself and others.  I am frightened more, but I am also braver more, often at the same time. And, most importantly, I now practice overcoming fear and adversity by overcoming fear and adversity.  I am not as "successful" as I was before (or as I thought I was) and I still have my regrets.  But I am more myself.  I am connected to the world.  I am alive!

Why am I telling you this?   Because one soul-stirring that I've recently heeded is to teach people how to succeed on the California Bar Examination. And to conduct this teaching "soul to soul" with all my heart.  That means that I often spend intensely personal time with people who have failed. It has become my calling to devote myself to their service.  That means I have a responsibility to be real.  And, as here, to be self-revealing if I consider it to be in their interests.

So I also must say how ironic it can all seem at times.  That they (and you?) can seem so stunned, paralyzed and lost after lifetimes filled with success. After graduating college and law school, often at great sacrifice. After starting families, serving in the military.  Often coming here from other countries to painstakingly create new lives. Why, I wonder, can't they see themselves as I see them  - as appealing and admirable people in the middle of noble and intensely personal endeavors to grow and change. 

It isn't that easy.  I understand that. 

Here's what happens though. Some remain stuck - hopefully they will soon find their ways back. 

But over time many others change right in front of me.  They try new approaches.  They calm down. They forgive themselves.  They dig deeper and they forge ahead.  Most conquer the bar exam and move on with their lives.  Whether they pass or not, all seem better for the effort - more themselves, more alive.

So here's why I'm telling you this.  If they can do all this. If I can.  Then so can you! That is one value of failing the bar exam, or failing period - a stellar one - as wonderful and terrible as that is.