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.

“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 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.

Let’s deal with essay questions first.  Part 2 of this Blog will concern itself with performance test questions.

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.

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

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 tutoriing and coaching to applicants for both exams.  Contact Adam at www.ferberbarreview.com or, on Facebook at Ferber Bar Review – Student Resource Group.

“I took the road less traveled by, and that has made all the difference.” Robert Frost

I’m sure you like to figure out how things work.  So, let me ask you this:  In all your preparation for this bar examination that will mean so much, have you ever actually tried to figure out how the performance test works?  And if you could, would it change your approach to writing your answer?  Would you take “the road less travelled by?”

Take “the File.”  It tells a story, but it tells it all out of whack.  If you were the narrator, one story might go like this.  After a workout at their gym, two acquaintances go out for a beer.   Tom agrees to lend Byron his car to go to a job-related meeting. The meeting happens to be at a bar though, where Byron drinks more beer.  On his way back to return the car he uses the car to run an errand.  Then…guess what?  He hits a pedestrian, and all hell breaks loose.  This performance test – PTA from the February 2005 California Bar Examination – is the result. Check it out at: http://admissions.calbar.ca.gov/LinkClick.aspx?fileticket=D8Nvfy-KI%3d&tabid=2269

While you’re doing that, think about how the File works.

This File, as do all others, scrambles a smooth, chronological narrative into out-of-order pieces.  Those pieces have names: In this PT, “memorandum,” “police report,” “Medical Center” admitting form.”  If you attempted to answer this question, you’d read those pieces in the “out-of-order” into which the drafters arranged them. And then you’d outline them.  How?

Here’s one way that you might not have thought of.  Instead of (or in addition to) your present outlining technique, reassemble the scrambled pieces into the original story.  What happened first, then second, and so on.  Your effort doesn’t have to be extensive -  just enough to get you thinking about “the story” as well as “the facts.”

With the chronology in hand you may notice:

-           That if the question calls for a summary of the facts, your summary will be more comprehensible.  Moreover, it will exhibit a necessary analytical skill – giving coherence to the disaggregated “factoids” you might pick up from a police report or deposition transcript as a practitioner;

-           That your answer writing efforts to use the facts will likely be more effective if you remember them in the order that you’d normally expect them to take.  You may recall facts more quickly; and

-           That your discussion style may be less “exam-like” and more “lawyerly,” if you’ve had even the brief chance to think about the question as a situation that occurred in real time.

Does this seem counter-intuitive to the techniques that you’ve been taught?  Are you concerned that it might cost you time that would be better spent elsewhere?  Both reactions are to be expected.  However, if it also sounds intriguing or potentially helpful, why not try it once or twice as you prepare this month.  If it works for you, you’ll be walking successfully down “the road less traveled by,” on your way to a passing grade.

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

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 tutoriing and coaching to applicants for both exams.  Contact Adam at www.ferberbarreview.com or on Facebook, at  Ferber Bar Review – Student Resource Group.

“Another turning point, a fork stuck in the road/Time grabs you by the wrist, directs you where to go/So make the best of this test, and don’t ask why/It’s not a question, but a lesson learned in time” -Green Day

In case you didn’t get the memo, in addition to the purposes explicitly attributed to them by bar examiners, performance tests test your ability to perform legal tasks under intense time pressure.

So while you’re muscling up for those two three-hour sprints next month, consider these strategies:

1)         Outline For More Than 90 Minutes

California performance test instructions suggest that you allocate at least 90 minutes to your outline. Especially if you take the examination on your laptop, consider spending at least 100 minutes outlining.  That’s because this instruction predates the use of laptops by applicants.  It was composed in the days when there were only “writers” and “typists,” who were constrained by their more primitive writing tools, and it has never changed.   If you have reasonable typing skills and the ability to cut and paste portions of your outline into your answers, you can probably say all you need to say in your answer in a shorter time.  Extra outlining time can give you a better grasp of how best to construct your answer.

2)         Leave Yourself Time to Do The Hardest Things Twice

My students reach a point of diminishing returns when they take extra test time to bolster their strengths.  In fact, those strengths show up nearly as well when we cut their time.  For example, the good writers write nearly as articulately in fewer words.  They are better able to adapt.

However, students’ weaknesses do seem to improve with more time and attention.  Do you repeat yourself when you’re stressed? Edit for a few minutes longer.  Do you often start writing, only to realize that you missed something that you need to add?  Leave some time (and some space) to capture that last minute insight.

Taking a few minutes away from what you’re confident of and turning them over to your weaknesses is likely to get you more “bang” from that time.

3)         Take a Little Time to Relax

You heard me.  Try this the next time you’re in the middle of writing a practice exam.  (1)  Check your time. (2) Close your eyes and breathe in to a count of seven, filling your lungs with as much air as possible. (3) With your eyes still closed, hold your breath for a count of four, and then exhale for a count of eight.  Do this twice.  (4) Open your eyes and check your time. If you feel clearer and better focused, then practice this exercise and prepare to use it during the exam. It will be well worth the time you spend on it.

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York.  For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com.  And while there, feel free to submit a question.  If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com

In a comment to my previous article concerning character evidence, I was asked to write about the distinction concerning buyer and seller remedies under the UCC. This is quite a bit of information, so I will divide the content into two separate articles. This article will focus on buyer’s remedies, and the next article will focus on seller’s remedies.

Let’s first discuss buyer’s right to reject non-conforming goods.  When the buyer receives goods from the seller, if those goods do not conform to the specifications as set forth in the contract, buyer can, under some circumstances, reject the goods, and then either cancel the contract or sue the seller.

Let’s assume buyer has rejected non-conforming goods tendered by the seller. The seller is then given the option within the time originally provided for performance, to cure the defect by giving reasonable notice of intention to cure, and making a new tender of conforming goods.   If the buyer had accepted the goods, rather than rejected, and those goods turn out to be non-conforming, the buyer is not entirely out of luck. The buyer can still revoke his acceptance if the defect in the goods substantially impair their value, and buyer accepted the goods on the reasonable belief that the defect would be cured (and it was not cured); or if the buyer accepted the goods because of the difficulty of discovering the defects or because the seller assured buyer that the goods conformed to the contract.  So, remember to consider both options that buyer has in regards to non-conforming goods: rejecting the goods, or revoking the acceptance of those goods.

Another option for buyer is to replevy identified goods.  All this means is that if the buyer has already tendered full payment and the seller becomes insolvent within 10 days after receiving the buyer’s first payment, or if the goods were purchased for personal, family, or household purposes, then the buyer will be able to obtain those goods from seller, provided that those goods have been identified (ie, specific and ascertained goods currently existing).

Finally, the court may order specific performance, which will again allow the buyer to obtain the goods from seller, but in such a case, it will not be a requirement that the goods be identified; it will instead suffice if the goods are unique.

Now, let’s move on to damages.  Let’s assume that the buyer has properly rejected non-conforming goods, or has revoked his acceptance of non-conforming goods.  The buyer will be entitled to the difference between the contract price, and the market price or cost of buying replacement goods. The purpose here is to put the buyer in the position he would have been in had the seller tendered conforming goods.  Buyer is also entitled to incidental and consequential damages, less expenses saved as a result of seller’s breach.

Another possibility is that the buyer has decided to accept goods, even though those goods do not conform to the contract.  In such a situation, the buyer is entitled to the difference between the value of the goods accepted, and the value they would have had if they had conformed to the contract, plus incidental and consequential damages. Buyer must remember to notify seller as to the non-conforming nature of the accepted goods, otherwise buyer will lose his ability to collect damages for the accepted goods.

As always, should you have any questions at all, or comments about any of the information in the article, feel free to leave them in the comments section of this post, so that I can address them.

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.  Contact Adam at www.ferberbarreview.com or, on Facebook, at Ferber Bar Review – Student Resource Group.

How Knowing the History of Columbia Can Help You Ace the Performance Test

“Lionel Hutz – court appointed attorney.  I’ll be defending you on the charge of …Murder One!  Wow! Even if I lose, I’ll be famous.”  (Cartoon) lawyer Lionel Hutz

If you’ve watched television at all over the past 20 years, you probably know about the Simpsons’ hometown of Springfield (exact state still unknown).  You may also know a lot about Mr. Hutz, Disco Stu, Lake Springfield, Duff Gardens, and all the people and places that make the town feel like home to us as well.  But how much do you know about the State of Columbia, the fictional locale of the bar examination’s performance test?

Since its establishment, along with the PT almost thirty years ago, much has come to light about Columbia.  Its law offices grow by at least two every time the bar examination is given.  They include Castro & Ruz, Sanquist & Davis, and one particularly successful firm named after my two sons.  In its state courts (including the county courts of Jackson and Galena) and the federal courts in its Northern and Southern districts, lawyers have litigated claims to sunken treasure, mistreatment of animals, forced medical treatment, and theft of trade secrets.  So long as the performance test is given, hitherto unknown Columbians will have their moments in the sun, just as have Ralph Panine, Kai Banerjee and my personal favorite, investigator Johnny Ripka.

Why should you be interested in this history?  Why should you even consider taking precious study time off just to read through the libraries and files of long-ago litigated battles in this fanciful place?

Because each time you read a performance test and the selected answers that accompany it at the Cal Bar’s Office of Admissions’ website, you are learning about how these test items are constructed, including:

-           The relationship between the facts in the File and the legal authorities in the Library;

-           How what would be a smooth chronological narrative in a magazine article about the dispute the PT involves is broken up and distributed through the File;   And, how to reconstruct that narrative to suit your purposes.

-           Exactly how Columbia’s legal community writes its settlement offers,  persuasive memos, and even, on occasion, their discovery plans;  Just as Marge’s sisters, Thelma and Patty, love MacGyver, so do Columbia’s senior lawyers love carefully crafted subject headings.

To put it simply, you are honing your clinical skills.  And that’s what the performance test is intended to measure!

So, even if it feels counter-intuitive, stop outlining and writing, and just read a few of these test items.  And, if you have any energy left after that, you may enjoy an episode of The Simpsons.

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York.  For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com.  And while there, feel free to submit a question.  If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.

In a previous post, I offered my advice regarding a general approach to studying for the MBE.  In this post, I will review a specific concept that many students find to be difficult when preparing for the exam.  The topic is character evidence in criminal cases, and the rule to consult is in article IV of the Federal Rules of Evidence.

When studying evidence, you should first ensure that you have a clear understanding of the general rules before tackling the exceptions. As such, let’s review rule 404.  That rule states that evidence of a person’s character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.

Now, for the exceptions in criminal cases:  The defendant (or accused) can present evidence of his/her own good character (provided that it is a pertinent character trait), in an effort to prove that he acted in conformity with that trait on a particular occasion.  The defendant also can introduce evidence of a pertinent character trait of the alleged victim in an effort to prove that the alleged victim acted in conformity with that trait on a particular occasion.  In either of these two situations, the door is open for the prosecution to offer evidence rebutting the evidence offered by the defense.

The prosecution is also able to offer character evidence of peacefulness of the alleged victim in a homicide case to rebut evidence that the alleged victim was the first aggressor.

Evidence of the character of a witness can also be introduced for impeachment purposes, but when studying these rules, it is best to keep these topics separated for practical purposes.  Rules regarding impeachment can be found in Article VI of the code.

Finally, you should note that although the general rule (see above) prevents evidence from being offered for the purpose of proving that a person acted in conformity with a particular character trait, that same evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake/accident.  This rule exemplifies the importance of focusing not only upon what evidence is being presented, but WHY or for what purpose) the evidence is being presented.

I hope you’ve found this short summary to be helpful. I intend on posting further “breakdowns” in the future; so please feel free to post requests in the comments!

Copyright 2010 Sean Silverman and http://www.mbetutorial.blogspot.com.  Reprinted by permission.

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.  Contact Adam at www.ferberbarreview.com or, on Facebook at Ferber Bar Review – Student Resource Group.

“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 typical 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?

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York.  For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com.  And while there, feel free to submit a question.  If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.

The MBE is an overwhelming test.  It’s overwhelming both physically, and psychologically.  Discovering the proper approach to taking in, and learning, the large amount of information necessary to do well on the exam, is essential for success.  When tutoring my students for the exam, I always begin by providing the advice that I’m about to set forth in this essay.  In my view it’s the first building block, and foundation, to the months ahead of intense studying.  To begin, let’s discuss the two components of studying for the MBE, each of which alone will not ensure mastery of the material, but taken together provide a very strong basis for learning the material, and ultimately succeeding on the exam.

The first component is mastery of the substantive material that could potentially be covered on the exam.  Thankfully, we’re not left in the dark as to the scope of this information.  The National Conference of Bar Examiners (“NCBE”) has provided an outline that all test-takers should print out before beginning their studying.[1] Though the outline is vague, it does provide the test-taker with a convenient checklist to use as a guideline as to whether the information that needs to be learned has been covered while studying.  As you learn an area, check off that area on your subject matter outline.  This will not only help to keep you organized in your studying, but will also alleviate some of the psychological stress that accumulates when studying the large amount of information covered on this test. You’ll have a direct visual as to the information that you know, and the information that you still need to learn.  This is a confidence builder, and the importance of such a mental advantage is paramount. At times, you’ll feel as though you haven’t grasped a certain area of the subject matter outline well enough. Make a note of that on your subject matter outline, so that you can review the material once again in your substantive outlines.

Component two consists of applying the law that you’ve learned through your outlines to the types of questions that consistently show up on the MBE.  Although the scope of the MBE is quite broad, after sufficient practice, you will begin to recognize patterns as to how each area of law (from your subject matter outline) is most often tested in the multiple choice format.  This recognition of patterns is a skill that all test-takers should strive for, and in reaching this level, you can be confident that you are gaining an adequate understanding not only of the substantive law, but also of the mindset of the test-makers.

In summary, to do well on this exam, you must learn the law on a deep level, and then not only learn how to apply the law, but learn how the law has been applied on previous questions, so that you can use that knowledge as a means of understanding how you will likely need to apply it on your exam.   It’s a time-consuming approach, and will often require numerous readings of your substantive outlines, as well as thousands of practice multiple choice questions.   But it’s time well spent! You’ll enter the test with the knowledge you need to succeed, and with a confidence to provide you with the means of doing so.

Copyright 2010 Sean Silverman and http://www.mbetutorial.blogspot.com.  Reprinted by permission.

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.  Contact Adam at www.ferberbarreview.com or, on Facebook at Ferber Bar Review – Student Resource Group.

“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 California 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?

Copyright 2010 Adam Ferber and www.ferberbarreview.com.  Reprinted by permission.

Scott Pearce is an experienced bar examination tutor in Los Angeles.  He provides bar examination tutorial and home study services for bar students throughout the country.  Previously, Pearce lectured and tutored at Bar/Bri, BarPassers, and PMBR.  For more information, visit Pearce’s Web site at http://passthebar.com.

How can you tutor somebody to get better at a standardized, multiple-choice test?

I’ve been teaching bar exam essay writing since 1988, and I’ve written and produced several video series about every part of the bar examination.  I’ve been a tutor this whole time, too.  Over the years I’ve worked for all the big corporate bar exam companies, and my Master Essay Method has been an academic as well as a commercial success.  And yet, for all of this experience, there’s something mysterious about the Multistate Bar Exam as far as I’m concerned.  I can teach somebody to write, and I can explain all the details from most MBE questions, too – but those skills don’t necessarily correlate to student improvement on the MBE.

My instinct is to tell unsuccessful candidates to just do more questions.  I’m the guy who always says people tend to study too much and not practice enough, so it would follow that I would prescribe more practice to anybody who didn’t get enough MBE questions correct.  And yet, over the years I have encountered many students who worked hard and who did thousands of MBE questions in practice, only to be disappointed on the real MBE.  What’s wrong?  Why aren’t they improving?

One honest answer that comes to mind: maybe the candidate has a learning disability that nobody ever diagnosed, that is causing them to not make progress despite diligent work.  Sometimes that’s true.  Yet in my heart I know that very few people make it all the way to the bar exam without already having any disability recognized years ago.  It’s also clear to me that these folks know the law.  Often they can repeat it to me better than I could speak it out loud without notes myself.  All this tells me that the problem is one of technique, not knowledge or intelligence or ability-vs-disability.

What then?

Over the years, MicroMash has been the solution for many of my students who have had more trouble with the MBE than with the essays, even during the years when PMBR was plagiarizing questions from the real MBE.  I think it’s because the computer algorithm does a clever job of diagnosing the student’s shortcomings and giving them more practice on that point.  This is wholly consistent with my idea that it’s wise to try to study and practice the material you’re weak at, not waste endless hours reviewing stuff you already know.

There are a variety of learning styles.  That’s one reason why it is so important for a student to become familiar with the various options available as they get ready to commit to a long and serious study period.  There are a number of competent programs available for each aspect of the bar exam.  The better you study the market before you get rolling, the more likely it is that you’ll be pleased with the result in the end.

Remember, it is my experience that there’s a significant correlation between the amount of practice a student does, both for the MBE and for the written section, and that student’s chance for success on the bar examination.

Good luck, and keep practicing!

Copyright 2010 Scott Pearce and passthebar.com.  Reprinted by permission.