Month: December 2015

The Almost Daily Word – Why Gamble on Essay Questions: Letting Essay Call Structures Organize Your Answers – Part 2 – The Multiple-Call Call

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“You can know the rules of law. You can know IRAC. You can know how to write. You can know all of that . But if you don’t know the Bar Exam itself, you’re “’playing stupid.’” Adam Ferber – Bar Exam Blogger

Each year, there are six essay questions on each of two bar exam administrations – 12 altogether. That’s 60 essays in the last five years, 120 in the last ten years. This might lead you to conclude, even after your bar preparation, that there is endless variety in essay questions. It might lead you to think that your best bet is just opening the exam booklet and reacting to what you see. It might, but if it did, you wouldn’t be playing smart – you’d just be gambling.

Although California Bar Examination Essay Question calls (the tasks assigned to the applicant in each question) vary slightly, in general, there are four call structures that commonly appear. An applicant who has become familiar with each such call structure and has developed appropriate strategies to respond to them will have an advantage on the essay portion of the Exam.

The first such call, I call “the Multiple-Call” Call.

(a) Description-The “Multiple-Call” Call contains two or more sub-calls, each of which may have additional sub-sub-calls.

(b) Example-“What arguments can Developer make, and what is the likely outcome, on each of the following points:

1. Developer did not breach the contract with Builder.

2. Developer’s performance was excused.

3. In any event, Builder did not suffer $700,000 in damages.

Discuss

(c) Handling the Multiple-Call Call

(i) After reading the question thoroughly and completing preliminary issue spotting, assign tentative weights to each sub-call. What percentage of the maximum achievable grade of 100 is devoted to each sub-call? Allocate answer and/or outlining time and words accordingly.

(ii) If one sub-call appears to be worth substantially more than any other, plan for a two-tiered answer consisting of: (A) analysis of each issue presented by the call (e.g. parol evidence rule, exceptions to parol evidence rule); and (B) organization, analysis and discussion of all issues collectively, to arrive at the answer to the subcall. (e.g. Developer did not breach the contract with Builder.)

(d) Samples of Multiple-Call Call Questions at the Office of Admissions’ “Past Examinations Site” (http://admissions.calbar.ca.gov/Examinations/PastExams.aspx)

– February 2014: Essay questions 3, 4 and 5

– July 2013: Essay Questions 1 and 3

– February 2013: Essay Questions 1, 3, 4, 5, and 6

The Almost Daily Word – Why Gamble With Essay Questions: Letting Essay Call Structures Organize Your Answers – Introduction

“The smarter you play, the luckier you’ll be.” Mark Pilarski – Gambling Expert

“You can know the rules of law. You can know IRAC. You can know how to write. You can know all of that . But if you don’t know the Bar Exam itself, you’re “’playing stupid.’” Adam Ferber – Bar Exam Blogger

Each year, there are six essay questions on each of two bar exam administrations – 12 altogether. That’s 60 essays in the last five years, 120 in the last ten years. This might lead you to conclude, even after your bar preparation, that there is endless variety in essay questions. It might lead you to think that your best bet is just opening the exam booklet and reacting to what you see. It might, but if it did, you wouldn’t be playing smart – you’d just be gambling.

Although California Bar Examination Essay Question calls (the tasks assigned to the applicant in each question) vary slightly, in general, there are four call structures that commonly appear. An applicant who has become familiar with each such call structure and has developed appropriate strategies to respond to them will have an advantage on the essay portion of the Exam.

“Almost Daily Word[s]”to come will review each of the four most prevalent call structures.

Stay tuned.

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 5 – Constructing Your Discussion

“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

Four previous blog entries have outlined steps to create an instinctively good impression of your essay answer on the part of the grader.

Step One is to structure your topic headings in direct response to the call of the question.

Step Two is state your sub-headings articulately and responsively, following the linear flow of the question and looking for the “issues within issues” that essay questions often include.

Step Three is to write the applicable rules of law completely and precisely, whenever possible stating the rule verbatim.

Each method requires more of you than the last: the ability to structure your answer: the ability to identify the legal issues, the ability to articulate clearly the applicable rules of law. Creating a positive instinctive reaction on the part of your grader requires not only that you have these abilities but that you expertly depict them on the page.

Structuring your “discussion” – your analysis of why the facts in the question support the application of a particular rule of law, is the most difficult, but is a key to a superior grade. It’s not only what you say – but how you say it – that can trigger a grader’s “Blink reaction.”

Remembering these techniques can help:

– Be Persuasive. Take a side! Persuasiveness requires you to express unequivocal judgments about the facts. For example, by labeling a fact “the most important,” or “the one that the court will most likely rely on,” you will make your conclusion clear. Being persuasive requires you to:

– Be Confident. Confidence is not shown by the all-too-common construction: “P will argue…. D will counter-argue.” You can show greater mastery by constructing your sentence(s) to acknowledge the opposing argument this way. “D’s argument that [summarize argument] will be unsuccessful because….”

– Make use of transitions. Transitional words and phrases implicitly or explicitly summarize information that you have already presented and help the grader anticipate what you are about to say.

– Be Succinct. Make your sentences factually dense. Your grader knows thoroughly the contents of the question you are answering . There is no need to quote the question.

Contrast the discussions of the answers, “1” and “2” that have been referred to throughout all previous entries on this topic.

Answer 1 discusses the application of the parol evidence this way:

Analysis: Builder will further argue that the contract was Fully Integrated because the contract stated in relevant part, “This written contract is a complete and final statement of the agreement between the parties hereto.” Developer will counter argue that an Oral Condition Precedent to the formation is a valid exception to the parol evidence rule. However, Builder will argue that in pre contract negotiations when Developer told him he would not be able to proceed with the contract he affirmed this statement by acknowledging that he understood such a condition to be implicit in section 14(d).

Answer 2 discusses the application of the parol evidence rule this way:

Here, the agreement between Developer and Builder has been reduced to writing. … [A] court will look at the contract and determine whether the parties likely intended it to be the final and/or complete expression of the agreement given the detailed or specific nature of the terms. In this case, the contract provides for the construction of 10 single family homes and has several sections … describing aspects of the venture. Importantly, the writing contains a merger clause …Courts typically find that the parol evidence bar to extrinsic evidence presumptively applies where the writing contains a merger clause. Accordingly, a court will likely find that the parol evidence rule applies.

Answer 1 is not persuasive. It equivocates. It conveys very little information that is useful in making a grading decision. It portrays the applicant who wrote it in a bad light. What do you think of the answer?

Answer 2 is powerful and persuasive. By reciting what “a court will look to..” the answer presages what facts will be most important to the “ultimate decision maker,” (who can also be described as “the jury,” “the finder of fact” etc.). The applicant then recites those facts succinctly. “Importantly;” “Courts typically find that…” and “a court will likely find” all confer persuasiveness on the applicants use of the facts. What do you think of the answer?

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 4 – Rules of Law

“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

In Part 1, I postulated that the California bar examination grader who reads your essay answer can’t avoid a “Blink moment;” an immediate and instinctive reaction that may influence the balance of his or her grading. Part 2 may have persuaded you to exploit that reaction by constructing your topic headings to respond directly to the call of the question. Part 3 may have persuaded you that masterful, articulate sub-headings will strengthen the grader’s impression that your answer is superior..

Basing your topic headings on the call of the question is a “gimme.” A lay person could do it (though surprisingly many applicants don’t). Composing forceful sub-headings tests your legal knowledge and analytical ability. You must be sufficiently grounded in the subject matter to identify the legal issues that each sub-call raises.

Precise statements of legal rules require even more from you, but their effect is powerful. In some respects, they may do no more than demonstrate your ability to memorize. Nonetheless, they are the most direct evidence that you know the law. And…, that your answer, when taken as a whole, will be complete and correct. A grader can fairly assume that since you can state each rule correctly, your application of it will be competent.

Contrast these rule of law statements from answers to Question 5 (Contracts) from the February 2009 Bar Examination. (Part 3 summarizes the question; Part 2 sets out the call.)

Question 5 requires the applicant to discuss contract formation. Answer 1 states the rule this way: “A contract is formed when there is a bargained for exchange/ a promise for a promise with consideration to bind the parties.” Answer 2 states the rule this way: “…[A] valid contract … requires (1) offer, (2) acceptance, and (3) consideration.

Question 5 requires the applicant to discuss a merger clause and the parole evidence rule. Answer 1 states the rule this way: “[Parole evidence} All pre-contract terms are out unless made part of the contract.” Answer 2 states the rule this way: “A merger clause in a contract indicates that the contract is a final integration of the agreement between the parties. This clause causes the Parol Evidence rule to apply. This rule states that no prior or contemporaneous oral statements are admissible that contradict the final integration between the parties.”

Answer 1’s statement of the parole evidence rule is incomplete and general. Its statement concerning contract formation is correct, but it is inarticulate. Answer 2’s rule statements are crisp and complete. If you’ve read my first three entries on this topic, what is your “Blink moment” judgment of the two answers now?

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 3 – Sub-Headings

“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

In Part 1, I postulated that the California bar examination grader who reads your essay answer can’t avoid a “Blink moment,” an immediate and instinctive reaction to your answer and its parts that may influence his or her grading. Part 2 may have persuaded you to exploit that reaction by constructing your topic headings to respond directly to the call of the question whenever possible.

Topic headings are not all that you can do to make an immediate, favorable impression on the grader. Effective sub-headings are not a “gimme” – they require you to demonstrate that you know the legal principles implicated by the question. Writing them articulately, though, will add to the good first impression you want your answer to make.

Let’s continue considering Essay 5 (Contracts) from the February 2009 California bar exam.

In the question, Developer had an option to purchase a five-acre undeveloped parcel from Owner. D planned to develop the parcel once City approved the extension of utilities to it. Expecting that City would also reimburse D for its utilities costs, D signed a contract to construct houses with Builder. D informed B that it could not proceed unless City reimbursed the costs, but language to this effect was not included in the D-B contract, which, instead, contained an integration clause. When City would not reimburse D for the utilities, D abandoned its plans to develop the parcel and did not exercise its option to purchase it from Owner. B has claimed breach of contract by D and sought $700,000 in lost profits. In the meantime, Architect has purchased the parcel from O and contracted with B to develop it at a profit of $500,000 to B. The call of Question 5 is set out in Part 2.

Let’s also continue to compare Answer 1 to Answer 2 from Part 2, this time, by folding sub-headings into the question following each topic heading of each answer.

Here’s how Answer 1 does it:

Issue: Contract Formation
Rule: (followed by text, which I’ll discuss in Part 4)
Analysis:
Conclusion:

Issue: Parol Evidence
Rule:
Analysis:
Conclusion:
Issue: Mistake/Ambiguity
Rule:
Analysis:
Conclusion:

Issue: Mitigation
Rule:
Analysis:
Conclusion:

Here’s how Answer 2 does it:

1. Developer did not breach the contract with Builder
Parol Evidence Rule
Exception to the Parol Evidence Rule – Conditions Precedent
Exception to the Parol Evidence Rule – Explaining Ambiguity
Exception to Parol Evidence Rule – Collateral Agreement
Mistake Due to Ambiguity
Unconscionability

2. Developer’s Performance Was Excused
Impossibility
Impracticability
Frustration of Purpose

3. Builder Did Not Suffer $700,000 in Damages
Applicability of “Lost Volume Seller” Rule
Certainty Requirement
Unavoidability/Mitigation Requirement

I hope you’d agree with these observations:

First, taken together with its topic headings, Answer 2’s sub-headings have demonstrated the applicant’s ability to determine Question 5’s most relevant issues and to organize them in a lawyer-like way. In other words, Answer 2 has exhibited mastery, with sub-headings that are articulate and responsive to the question’s call.

Not only do the sub-headings follow each other linearly and consistently with the flow of the question, they also recognize the “issues within issues” that a question can often include. For example, the parol evidence rule must be known before exceptions to it can be meaningfully discussed. Additional issues regarding breach (or the lack of it) can then logically follow.

By means of its mastery of the crafting of sub-headings, Answer 2 has created a reasonable expectation that its statements of rules and discussion of their applications will likewise be organized, logical and correct. For the grader who first scans highlighted topic headings and sub-headings before digging into the substance of the answer, all this has occurred before the grader has seen a single statement or discussion.

Answer 1 still can be redeemed if the applicant states the relevant rules of law correctly and applies them correctly. Graders are trained and expected to read every word of every written answer until a supportable grade can be give.

Nonetheless, how did you react to the sub-headings? If you had to choose now, which was the passing answer?

The Almost Daily Word – Bar Graders and the Blink Moment – Create the Best First Impression of Your Essay Answer – Part 2 – Topic Headings

“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

In Part 1, I postulated that the California bar examination grader who reads your answer can’t avoid a “Blink moment;” an immediate and instinctive reaction that may influence the balance of his or her grading.

You can take advantage of this tendency with topic headings that reflect the call of the question, whenever possible. Try this exercise and see if you don’t agree.

Pretend you’re grading Essay Question 5 from the February 2009 bar exam. The call of this contracts question is:

What arguments can Developer make, and what is the likely outcome, on each of the following points?

1. Developer did not breach the contract with Builder.
2. Developer’s performance was excused.
3. In any event, Builder did not suffer $700,000 in damages.

Now pretend that you have two answers in front of you. Each answer has received a consensus grade at grader calibration sessions – one passed, the other did not. You have 60 seconds to decide which is which. (Don’t worry…it’s never really done this way, but bear with me.)

Answer 1’s topic headings read:
– Issue: Contract Formation
– Issue: Parole Evidence
– Issue: Mistake/Ambiguity
– Issue: Mitigation

Answer 2’s topic headings read:
– Developer did not breach the contract with Builder
– Developer’s performance was excused
– Builder did not suffer $700,000 in damages

Which answer did you chose?

If you chose Answer 2, I’m with you. Based on my 60-second scan, I already know two things about Answer 2 that I don’t know about Answer 1: That it will attempt to answer the precise questions put to it in the call; and that so far at least, it’s likely to be “logical,” “lawyer-like,” and better organized. Answer 1 has shown me a recognition of the question’s subject matter – nothing else.

Finally – pretend that you are instructed to read and grade both answers. Which do you think is more likely to receive a clearly passing or superior grade?

This is where the “deliberate” part of Mr. Gladwell’s formula for good decision-making comes into play in grading. California Bar graders read essays and performance tests carefully and base their final grading decisions on the whole answer. It’s very possible that its author will get Answer 1 organized and fully answered. It’s as possible that Applicant 2 will fail to do much more than “channel” the questions topic headings. However, based on the topic headings alone, which answer would you “put your money on?”

By the way, have you noticed that applicants can get a head start on organizing their essay answer to promise graders good things, without actually having to know the law or even anything about the question? If you have, then good for you. A piece of your grader’s “Blink moment” now belongs to you.

The Almost Daily Word – Bar Graders and the “Blink” Moment – Create the Best First Impression of Your Essay Answer – Part 1

“Truly successful decision making relies on a balance between deliberate and instinctive thinking.” Malcolm Gladwell: Blink: The Power of Thinking Without Thinking

Say you’re an experienced California Bar Examination grader, as I was. You’ve graded essay answers for ten examinations – at least 8,000 books. You’re grading Essay #5 on the February 2009 examination. (Available at calweasel.com) You’re calibrated to the 11 or so other graders on your team – meaning that you consistently stick to the grading standards the team reached following a day and half of deliberations. You read every word of every answer, often twice, before you assign it a grade. You take your job seriously.

Do you honestly think you can ignore your first impression of each answer, or even of pieces of the answer, when you’re grading?

I graded bar examination answers – essays and performance tests – for ten years before I went on to membership on the Committee of Bar Examiners and then to becoming the State Bar Examinations Director. To each answer I graded, I almost always had an immediate and instinctive first impression, a “Blink Moment.” Malcolm Gladwell describes this phenomenon as “…[R]apid cognition … the kind of thinking that happens in the blink of an eye. When you meet someone for the first time, or walk into a house you are thinking about buying, or read the first two sentences of a book, your mind jumps to a series of conclusions.”

I didn’t assign a grade based on that impression – I always read every word before I decided. But I couldn’t ignore my instinct either – it was my introduction to that answer – a handshake with that applicant.

If what I’ve described makes sense to you, how are you going to write an answer that makes your grader’s instinctive reaction a good one?

Further installments on this topic will give you some tips – some easy, some more difficult, on exploiting your grader’s “Blink Moment.”

The Almost Daily Word – Seven Deadly Sins of Bar Preparation – #1 – Meaninglessness

There was an enjoyment to being alive, he felt, that because of an underlying meaninglessness … (one) experiences life in that hurried, worthless way one experiences a mistake he could no longer get at. Tao Lin – American novelist, poet, essayist and short-story writer.

Thirty-five years of experience with the California Bar Exam has led me to reflect on the seven deadly sins of bar exam preparation – self-defeating traits that predict bar exam failure. Number 1 is:

Meaninglessness

Several years ago, I had what I guess you could call a crisis of meaning, or, more precisely, a crisis of living without meaning. It was brought about by a perfect storm of personal tragedies. It seemed as if nearly everything that I’d put my faith in was gone – had failed me. I was bereft. For a while, identifying what meant anything to me was both a huge challenge and a constant preoccupation.

I kept on through the sleepless nights, kept working, kept going to the gym, kept thinking, kept faith. What choice did I have? Gradually, thank goodness, time passed and life began to pick its old colors back up – and many new ones as well. My soul and spirit pulled me along in new directions. One was tutoring and, eventually, teaching at a law school. Another was this blog where, for the first time in my very private life I found meaning in talking publicly about my thoughts and feelings. Not only about the bar exam skills and techniques that I’d learned over 35 years, but also about my values – what matters to me. In particular, my view of this exam as a unique challenge to body, mind and soul.

My dark time seemed to leave me with a new kind of intuition, a knack for identifying people who may feel that they are at a crossroads; who may feel a little lost. Regardless of our differences in age, gender or circumstance, I often seem to ask a student or a new acquaintance the type of question that opens a door, starting a very important and personal conversation. What I hear is often sad. It makes me want to help. (After a life of self-centeredness, this ambition to help is probably the brightest new color on my palette.)

More than I’d suspected, many people seem to lose their bearings when preparing for the Bar Exam. On one hand, it surprises me. You’d think that this period of intense preparation and review would be the crowning achievement of academic lives well lived – intelligence validated; ambition, academic effort, generativity and growth all rewarded.

On the other hand, it hardly seems surprising at all. For many students this time can be both an abrupt ending and an uncertain beginning. Twenty or more years of schooling over, the culmination of a sustained ambition that parents, family and friends may have shared, supported, engendered, or even insisted upon. At the same time, an uncertain debarkation on unsettling seas: questionable job opportunities; a changing economy; even a set of disappointing changes from the time so long ago, when becoming a lawyer first seemed so attractive and exciting.

It is certainly possible to pass the bar exam without knowing what it means to you. But, all other things being equal, I’d put my money on the person who has decided that this herculean effort is worth it and, as importantly, has figured out why.

And so, if it is possible to offer “tips” on so weighty a subject as finding meaning in your bar preparation, I offer these.

– Although meaning and humanity’s search for it are timeless and complex, my definition of the word is simple. What is meaningful to you is what is important to you. I use the words “meaningful” and “important” interchangeably.

– There is a difficult part of this simple definition though. It is in the words “to you.” It can feel next to impossible at times to know what is important to you, especially when you are smack in the middle of the effort. It can feel next to impossible to separate what is important to you and you alone from what is important to others, especially when the others are people you love and respect: your family, your friends, your teachers and mentors. You are unique though, and even if you agree with what others believe to be important, you can only profit from making sure that the source of your opinion is truly you.

– Many people I’ve met equate mindless busyness with meaning. (See the quote at the beginning of this blog entry.) Always having a “project” can be a type of avoidance (see Deadly Sin #6). Avoidance of self-reflection, or hurt feelings, or more difficult problems. Avoidance of knowing oneself, “warts and all,” as they say – and then forgiving oneself. So, although it may feel counterintuitive, a simple way to find meaning may be just to slow down, just to sit still for a while.

– Something that may feel meaningless – difficult and unnecessary – may, in fact, be meaningful. One example is when it makes possible something that is unquestionably meaningful. A popular example may be the singer who works her “day job” so that she can sing in clubs and, eventually, compete on “American Idol.” Another example may be passing the bar exam so that you can fulfill your dream of becoming a lawyer.

– Something that once felt meaningful can lose its meaning. Time changes things. “To everything there is a season…” This situation can be the greatest challenge. However, as I’ve come to know recently, the rewards of acceptance and of moving on can be the greatest of all.

And, so, with best wishes to you in your studies, please remember always:

“It is not in the stars to hold our destiny, but in ourselves.”

The Almost Daily Word – Seven Deadly Sins of Bar Exam Preparation – #2 – Mindlessness

Walk as if you are kissing the earth with your feet. Thich Nhat Hanh – Zen Buddhist Monk

Thirty-five years of experience with the California Bar Exam has led me to reflect on the seven deadly sins of bar exam preparation – self-defeating traits that predict bar exam failure. Number 2 is:

Mindlessness

Mindfulness refers to a psychological quality that involves bringing one’s attention to a present experience on a moment-to-moment basis.

Many bar applicants, it appears to me, are entirely unable to be mindful. Their worlds are vortexes of distraction, preoccupation, conflict, aspiration, delayed gratification, projection, introjection and drama – much of it realistic and understandable, but much of it invented and dysfunctional. These worlds often appear to live on a diet of under-acknowledged anxiety – even panic – along with caffeine, alcohol and/or marijuana, poor nutrition and physical lassitude. If my observations are correct, what room is left to consider the study of the law from a place of serenity, enjoyment and gratitude? And, if there’s no room left for those perspectives, why study law at all?

Can you sit still and quiet for five minutes continuously without dwelling on your latest preoccupation (e.g. the bar exam? Duh!)? If you can’t (and many people can’t) or if the effort leaves you anxious or depressed, you may be a candidate for these simple mindfulness exercises, all taken from the excellent website “Pocket Mindfulness.”
www.pocketmindfulness.com (Also consider trying for a minute at a time, to “walk as if you are kissing the earth with your feet.”)

1. One Minute Breathing
This exercise can be done anywhere, any time. All you have to do is focus on your breathing for just one minute. Naturally your mind will wander, but just try to just return to the rise and fall of your breath and let your thoughts, as they arise, just fade away.

2. Mindful Listening
This is the same as one minute breathing, except for just one minute listen to a piece of music you like. Try not to think about it, just listen. If you can’t find any music you like you can simply listen to the noises around you. Don’t try and determine what the sounds are, just listen and effortlessly absorb the experience.

3. The Game of Five
In this mindfulness exercise, all you need to do is notice five things in your day that usually go unnoticed. They could be things you hear, smell, feel on your body, or see. For example you might see what’s hung on the walls, hear the birds, feel your clothes or smell the flowers. Of course you may already do these things, but are you really aware of them and the connections they have with your world?

Learning to be mindful; that is, to bring your full attention to any task, including bar exam study, on a moment to moment basis, is very different from most of the things you do in your life. There is no “ultimate goal,” no delayed gratification. As the saying goes: In mindfulness, practice doesn’t make perfect – practice is perfect.

The goal of mindfulness practice is present, immediate and simple – just relax and focus on one thing. However, if you begin to practice you may well notice that this skill starts to spread to other things you do. You may be less likely to reflexively predict the outcome of what you’re doing – good or bad. You may find that instead of a pressure-and-stress-filled ordeal, your bar studying may start to feel a little less harried and a little more relaxed. For periods of time (not all the time for sure) you may even feel more connected to and taken by what you’re studying. And when you do, among many other good things, you will be “kissing the world with your brain.”

Full of equanimity,
of benevolent thought,
of tender thought,
of affectionate thought,
of useful thought,
of serene thought,
of firm thought,
of unbiased thought,
of undisturbed thought,
of unagitated thought,
of thought fixed on the practice of discipline and transcendent wisdom,
having entered on knowledge which is a firm support to all thoughts,
equal to the ocean in wisdom,
equal to the mountains in knowledge,
rich in many good qualities….
they attain perfect wisdom.

The Almost Daily Word – Seven Deadly Sins of Bar Exam Preparation – #3 – Being Out of Shape

To keep the body in good health is a duty… otherwise we shall not be able to keep our mind strong and clear. The Buddha

Thirty-five years of experience with the California Bar Exam has led me to reflect on the seven deadly sins of bar exam preparation – self-defeating traits that predict bar exam failure. Number 3 is:

Being Physically Deconditioned

In 2011 the American College of Sports Medicine and the American Heart Association recommended minimum daily exercise standards for adults wishing maintain cardiovascular fitness. They said “…all healthy adults aged 18 to 65 years need moderate-intensity aerobic physical activity for a minimum of 30 minutes on five days each week or vigorous-intensity aerobic activity for a minimum of 20 minutes on three days each week.”

Since earlier research disclosed that fewer than half of US adults met these standards, and that nearly 25% of all American adults don’t exercise at all, I’d bet that a significant minority of graduating law students go into the bar exam way out of shape. If I’m correct, I have to ask: “What are they thinking?”

Can we stipulate that studying all day, nearly every day, for this life-changing rite of passage is stressful? Can we also stipulate, without further explanation, that there’s beaucoup stress associated with taking the bar exam – for 18 hours or more over three or more days – and even more stress associated with failing it?

Who does not know that exercise produces endorphins, (the body’s own “feel-good” neurotransmitters), boosts the immune system and combats stress? You may not know that exercise increases the production of BDNF (brain-derived neurotrophic factor) in the hippocampus, the portion of the brain that controls learning and memory. More BDNF equals better memory. Exercise also increases concentrations of serotonin and norepinephrin, neurotransmitters that combat depression.

So … knowing that that brisk half-hour walk in the sunshine would improve your mood AND your memory, returning you to your studies happier, fresher and, in a way, even smarter, are you prepared to get going? To say no would really be a sin.