Douglas Whaley. Law professor, gay rights advocate, atheist, heart transplant recipient, actor, director, novelist, playwright, bridge player, husband, father, cat owner, storyteller. Much humor and, since the writer is a teacher, advice on many topics.
in my teaching career I gave bar review lectures all over the country for a ten
year period.Thus I witnessed thousands
of people facing bar exams, heard their concerns, gave them advice, and
eventually developed a min-lecture I threw into the mix containing my advice on
taking bar exams.That lecture, somewhat
developed, is below, but if some of it sounds familiar to readers of this blog
it may be because a couple of thoughts are taken word for word from a prior
post dealing with a similar topic: “How To Take a Law School Exam” (November
30, 2012).It certainly won’t hurt you
to read them again.
A.Before the Bar Exam
1. Calm yourself down.Yes it’s the most important exam you will
ever take in your life.But, for the
reasons I explain below, you are highly likely to sail right through the
experience so that in a few months you will be raising you hand and swearing to
be a respectable member of the bar.If
you graduated from a good law school and passed all of your course with no
danger of flunking them or even making a “D” your chances of passing the bar
are excellent even if you do little studying for it (which would be a bad
decision).If you graduated from any
accredited law school you likely got a first rate education in the principles
of the law, and, again, the bar exam should be a small (if unpleasant) hill to
climb, nothing like Mt. Everest.
So (deep breath) this is going to happen and is almost certainly
going to end well.
studying is hard work, but whoever said you only get to do easy things in life?
This is your chosen profession—right?—so it deserves the effort necessary to
acquire the knowledge to begin your career.You should take a bar review course, go to
the lectures, study the guides, but—and this is a major “but”—you should do so
with a new goal in mind.
If your goal on the bar exam is to memorize all the law that might possibly be tested, that's of course impossible, and you might as well quit now. No one could do that. In law school your goal (rightfully) was to make the highest grade
you could on every exam you took. But on
the bar exam (happily) your goal is very different.You don’t need to ace this
exam. You only need to make a passing
grade.That leads to altered
Look at the list of the subjects tested on the bar and divide
them into categories: (a) subjects I understood, liked, and did well in, (b)
subjects I understood and with a review can bring back into temporary mastery,
(c) subjects I can learn enough to get by, and (d) subjects where I don’t have
a chance of gaining the knowledge necessary to do well when asked about this
subject on the bar exam.For items in
category (a) brushing up is all that is necessary.For (b) you need to concentrate to regain information
you once had and bring it back into service.For (c) pay attention to the fundamentals and ignore everything
else.And for (d) do nothing.
What?Yes, nothing.When I give this advice I’m assuming (d)
consists of one or two subjects you never had in law school, subjects that are
complex, and subjects that if you flunk them are not going to keep you from
passing the bar.Let me give you
examples of (d).
I have taken two bar exams in my life: Illinois in 1968
immediately after I graduated from law school and moved to Chicago, and Indiana
two years later when I moved to Indianapolis to begin teaching at the Indiana
Indianapolis School of Law.For the
first exam I signed up for and religiously attended a bar review course, read
the materials, and passed the exam.For
the second I was teaching law (Contracts and Commercial Law subjects) and I
decided not to take another bar review course.I made this decision for two reasons.First, I was not that far removed from having just taken that first bar
review course and even still had my materials.Secondly, as I made the decision I was grading the exams of third year
students who would be my competitors and I remember thinking, immodestly, “with
one hand tied behind my back” I could best their collective efforts on the
exam.The Indiana bar exam, however, had
two subjects on it that were not tested in Illinois: Tax and Labor Law.I had had courses at the University of Texas
Law School in both subjects, but I remembered almost nothing about either.I also decided not to study either, and just
devoted myself to reviewing the things that fit in categories (a), (b), and (c)
above.As a consequence the bar examiner
who graded my essay exams on these two subjects likely concluded that I’d flunk
the exam.Ah, but the examiners who
graded my answers to the Contracts and Commercial Law questions (which took up
a much larger part of the exam) assumed I earned the top grade given that year
on the exam.The truth was somewhere in
between, comfortably above the pass line.
So you can “punt” on a subject or two, particularly if they are
not key components of the exam (such as the core courses every law school
offers in the first and second years).
3. The night before the exam: GET A GOOD NIGHT’S SLEEP! One of the
major things you’ll be tested on is how well your brain works. If you spent the
night cramming for the exam with coffee, drugs, or who know what, your brain
will be fried and your exam performance dismal. A rested brain is more
important than any last minute knowledge gained.
4. If Big Things Go Wrong. What if the unexpected happens—you get
sick, a family member dies, you receive a distress call from your best friend
to fly across country and rescue him/her—should you postpone the exam?
Obviously things can occur that would keep any rational person from taking the
exam on time, and I’m not saying otherwise. But here should be your rule: if it
is at all possible to take the exam, do
so. I’ve too often seen students with the opposite attitude (“I hope
something comes up so I can duck the exam!”). A postponed bar exam has a way of
never getting done. I’ve known legal careers wrecked because the postponement
of the exam was the end of everything.Don’t
let that happen.Take the damn exam and
get it over with.
Call if off only if that
is the only rational choice.There was
man who was very sick but nonetheless took the Indiana exam, toughing it out,
finishing the whole thing, and then returned after the end of the final day to
his hotel room, and died in his sleep.He was subsequently admitted to the bar, but it was a posthumous
honor—not at all what he’ad been planning on.
5. If Little Things Go Wrong. You need to consider ahead of time the
small matters that can turn the exam experience into a nightmare, and develop
fail-safe backups. I’m referring to such things as getting the date or time of
the exam wrong, the alarm clock that doesn’t go off, the car that won’t start,
the pen or computer that won’t work, etc. One year in Ohio an applicant thought that the
three day exam started on a Wednesday when it really started on a Tuesday.Major mistake, that.
When I took the Illinois
bar exam, on the second day thereof, my alarm clock failed to go off, and I’d
have slept right through much of the morning session but for the fact that my phone
rang at 8 a.m.It was a friend of mine
asking if I’d seen the morning paper: the Russians had invaded Czechoslovakia.I was very sorry for Czechoslovakia, but I
was delighted by that phone call.So you
might think ahead how a little help from your friends can be useful in making
sure you don’t have unnecessary problems with the only bar exam you plan on
Make sure your understand
well ahead of time all the rules of the exam, particularly what you’re allowed
to bring with you into the exam and what not, and how to turn in the exam.
Learn the honor code and pay attention to its rules.
B.Taking the Bar Exam
1. Fill out the exam as
instructed. When the starting signal is given, first set up your time schedule.
DON'T MAKE MISTAKES ABOUT THIS.
2. The Questions.
There will be good moments in the bar exam, for example a question
on the subject of your seminar paper, or concentrating on your favorite subject
in which you made your top grade in law school.Treasure these moments, but don’t dwell on their glory.Smile, nail it, and move one.
On objective questions guess unless told that there are penalties
for so doing. (If enough people miss the same objective question the graders
will frequently throw it out—so get in there and do your share by missing it
On essay questions, read each question carefully, trying to get
a sense of its bigger meaning. Issues will jump out at you. This will give you
a sense of relief, but it’s no time to relax. Now re-read the question
carefully, underlining important points, making marginal notes about the issues
or thoughts you want to include. Don't assume away the hard parts and make the
exam too easy. This isn't a contest of wits; it's a performance, and you’ll get few points for evading the hard issues.
Don't repeat the facts
except as necessary to your analysis. Unnecessarily repeating the facts is a
waste of precious time. Good attorneys, however, do use the facts to make their
points (“The plaintiff chose to send an email because it was faster than the
postal service, thus showing the plaintiff's emphasis on speed”).
What issue should you start with if there’s more than one in a
question? Here’s valuable advice: start with the most important issue,
the most vital one, the one at the heart of it all. One of the things being
tested is whether you can spot what’s vital. If your answer starts with
something petty that no lawyer is going to spend much time on, this tells the examiner
you don’t know what’s important and what’s not, a bad message to convey. The
exam has so much time pressure that if you mustn’t spend your valuable minutes
on minutia; you must hone in on the
heart of a controversy.
On essay questions, if you don't know, fake it. What? Yes, fake
it. Pretend you’re the monarch of your own jurisdiction and boldly invent the
rules. Our law is not so perverse that it deviates much from common
assumptions, and your guess will often get you some points, whereas a blank
sheet of paper will get you nothing. Some of you reading this are very, very
good at this skill, having honed it through years of educational endeavors, and
it’s time to strut your stuff.
On the usual law school exams you have time for exploration of
lots of things: policy, minor arguments, etc.But not the bar exam.The
examiners are busy people with large stacks of papers to grade.They are looking at essay exams with one
question only foremost in their minds: what sort of lawyer will this applicant
make.Does he/she know the black letter
rules of law and how to apply them? Therefore make sure you do state all the black
latter rules of law as clearly as you can, apply them well, and throw in a
policy statement only if you have time.Keep saying to yourself, “Law, law, law.”Demonstrate your knowledge of the law.If you have a pertinent real life comment
about what a real lawyer would do (settle this turkey, for example) state that
if you are sure it’s right.Show the
examiner what a stellar attorney you will be.
C.After the Bar Exam
1. If you have more parts of the exam yet to take, stop any
thoughts or discussions about this part of the exam immediately and concentrate
on the upcoming ones. Panic later, when the complete exam is over.
2. Very important rule:
don't do postmortems on the exam by
discussing questions with the other applicants. Violating this rule is a sure
way to panic yourself. Taken collectively you all know more than any one of you
knows individually, so if you want to scare yourself good about the only bar
exam you’re ever planning on taking, postmortems are a sure way to do it. If
someone starts to talk about the bar exam to you (“Did you see the promissory
estoppel issue in question two?”) walk away quickly. You don’t need to hear
things you may have missed. Go out and have a drink with non-law students.Have several.You have months of waiting ahead of you.Fill those moments with constructive things, and forget the exam until
the happy moment arrives when the results are posted and you learn that you’ve
passed.Then throw a party.It’s likely you really have just taken your last
exam.That’s worth celebrating.
3. Swearing In
Ceremony.One of the happiest moments of
your life is raising your hand and taking the oath that turns you into a
lawyer.Consider that your entire
education, starting in pre-school, has led you to this event.Everyone who loves you will congratulate
you.They should.Congratulate yourself.
So, good luck with this
pesky bar exam and with the career that awaits you in the life of the law.I’m rooting for you.