Adam Ferber is the former Examinations Director for the State Bar of California and grader of 40 California Bar and First-Year Law Students’ Examinations. He provides intensive, individualized tutoring and coaching to applicants for both exams, as well as counseling and advocacy for applicants appealing their unsuccessful exam results. Contact Adam at www.ferberbarreview.com or on Facebook at Ferber Bar Review – Student Resource Group.
“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 in 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.
Copyright 2011 Adam Ferber and www.ferberbarreview.com. Reprinted by permission.
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