LSJ: We are flattered that you sought out our publication and requested an interview. Why did you choose the Law Student Journal?
GRADER: I was a fan of the Law Student Journal when I was a law student. I liked it because it wrote articles without caring about whether an advertiser would be offended. When the bar/bri law suit hit the news, the Law Student Journal was all over it. Articles were written about bar/bri’s lack of efficacy when it came to challenged California bar exam candidates, and I appreciated the courage. And when PMBR was sued by the NCBE, again the Law Student Journal was all over it. You didn’t cut Bob Feinberg [PMBR’s founder] any slack at all, even though PMBR had a significant advertising presence.
LSJ: We do our best to act in the “best interests of the law student”, so to speak. If you want to learn how to put your resume together or what suit to wear to your interview with the big law firm, you won’t find any articles about that kind of stuff here. How to get on the good side of the senior partner, how to act during your summer internship -- articles like those, to us, at least, are yawn material. If you want shiny pages full of fluff, don’t bother picking up the Law Student Journal.
GRADER: And that is why I became a fan when I was a law student.
LSJ: Enough of that. I know you said you wanted to conduct this interview anonymously – because you are a current bar grader, not a former bar grader – but could you first tell us a little bit about yourself?
GRADER: I graduated from a top northern California law school and I live in the Bay area and I passed the bar exam on my first attempt. I work for a smaller law firm that is located in San Francisco. I was a top law student. I graduated Magna Cum Laude. I inherently understood the bar exam while I was a law student.
LSJ: Now for a question that I have just been dying to ask. I know the answer, but I want to hear the words come out of your mouth.
GRADER: OK.
LSJ: Do you have to write an essay with rule statements? Does your essay response need to contain separate statements of law?
GRADER: Absolutely not.
LSJ: I knew that already. I passed the California bar exam on my first attempt with absolutely no rule statements in any of my essay blue books. That said, why do you think so many professors and so many bar review courses insist otherwise? Before you answer that, did you write your bar essays with separate statements of law?
GRADER: I did not write with rule statements, but you can if you want. You can write with or without rule statements. But you need to keep in mind that rule statements are worth zero points. In fact, the bar examiners will publish essay answers that contain no rule statements whatsoever. And the bar examiners will publish essay answers that do contain rule statements. The choice is yours.
LSJ: I always say, “Rules are optional; analysis is not”.
GRADER: And that is 100% percent true. Now, why do so many professors and bar review courses insist otherwise? Honestly, I do not know. But it is all based on myth. Rule statements, for bar purposes, are not necessary at all. In fact, many poor answers contain perfect rule statements but contain no analysis. If you take the time to read the Bar Examiner’s essay examination instructions, there is nothing there that even remotely suggests an essay response needs to contain separate statements of law.
LSJ: If you are analyzing properly, your legal knowledge will be apparent.
GRADER: Yes. First and foremost, we are looking for a thought process. Your memory is not being graded. Your ability to analyze is. Your ability to solve a legal problem is being graded.
LSJ: I always tell my students, “An essay is not simply an opportunity to demonstrate how much law you know. It is an opportunity to demonstrate a thought process. It is an opportunity to solve a legal problem.”
GRADER: Yes, “solve a legal problem”. Too many candidates think we want to know how much law you know. If you think that is the case, try filling up a blue book with nothing but pertinent rule statements – you’ll fail. But try filling up a blue book with nothing but pertinent legal analysis – you’ll pass.
LSJ: Any comments on the performance test?
GRADER: Well, there is more to it than simply following instructions. It’s just not that easy. I laugh at the bar review courses that say nothing more than, “Follow instructions”. With a performance test, you are being graded on your ability to analyze . . .
LSJ: There’s that word again.
GRADER: . . . case law and statutes. Simply getting the holding from the cases, without analyzing the cases in your file against the facts in the cases, will, more times than not, cause a failing grade. If you think about it, a holding, without knowing the factual context, is nothing but a holding in a vacuum. You need to demonstrate an ability to use case law, and/or to compare/contrast case law and/or to distinguish case law. A case that is good for your case, your factual situation – there is very little point value in pointing that out to the graders. The points are in the ability to distinguish seemingly bad case law from your factual scenario. As far as cases go, that is what the graders are looking for. And virtually every performance test involves the analysis of case law.
Of course, oftentimes, a candidate is asked to do more than simply analyze case law. Fact finding is a common task. Providing additional facts is sometimes a task. Offering advice about the inherent quality of a case is sometimes asked for. There are a variety of things you can be asked to do, but virtually every performance test involves an analysis of case law, whether the audience is your boss, the court or a client. Mainly, that is what is being graded.
LSJ: Following instructions?
GRADER: Of course you have to follow instructions, but that, in and of itself, is not enough. You have to follow instructions skillfully.
LSJ: I like that word – “skillfully” – and I use it often. To me, the California bar exam is a skills test. Skillful candidates pass. Unskillful candidates do not.
GRADER: I agree with that. Having the skill to solve a complex legal problem under timed conditions is what gets the job done. Nothing else gets the job done. A photographic memory doesn’t get the job done -- but the ability to problem solve does. In a movie called The Paper Chase [a movie about Harvard 1Ls], the law student with the photographic memory flunked out. Because he didn’t know how to analyze, he didn’t know how to solve a legal problem.
LSJ: So it is fair to say that the California bar exam is an “analysis” test?
GRADER: It isn’t anything else.
LSJ: Let’s see. We shattered one myth: that you have to write with rule statements -- you do not. And there is more to passing a performance test than simply following instructions . . . Anything else? . . . Yes. Do you actually read an essay answer in only 2-3 minutes?
GRADER (smiling): Some of us do. Some of us don’t. I take 4-6 minutes for an essay. I take 10-15 minutes for a performance test.
LSJ: You’re smiling.
GRADER: Because I know that that freaks people out. But I know how to properly grade an essay blue book in 4-6 minutes.
LSJ: What do you look for in an essay?
GRADER: Analysis, of course. We look for the proper issues, of course. Analysis and issues are what we look for. And we do not have to read every single word to realize whether the answer is skillful or not.
LSJ: I tell my students that you do not have to look at a golfer play an entire 18 holes to know if he’s good or bad. On the first tee, you can realize whether the golfer is good or not.
GRADER: Exactly. And on the first page, I can realize if an essay response is good or not. I can tell if the person writes analytically or not. I can tell if the candidate is conveying a legal thought process or if they are simply conveying an ability to memorize. Most failing bar books have the same kind of first page – law, law, law, and more law. No analysis at all. If we’re lucky, we might see some analysis on the third page. But by then, you have already sealed your fate with a poor grade.
LSJ: And that’s because most candidates do not understand the exam. Most candidates think the California bar exam is a legal-knowledge exam.
GRADER: And it isn’t a legal-knowledge exam. It is an analysis exam. This is not a regurgitative exam.
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LSJ: What are the hallmarks of a good essay?
GRADER: Issue spotting and analysis. Many candidates have been brainwashed to believe that issue spotting is all that matters. They foolishly believe that all we do is look for the right head notes. Try turning in a blue book with the right head notes but without any analysis – you’ll fail. In California, the emphasis is ultimately placed on the analysis. You can spot every issue and still fail an essay.
LSJ: If your analysis is lacking.
GRADER: Yes, that’s right.
LSJ: And for this very reason, California’s bar pass rate is so low . . . ?
GRADER: What separates us from other jurisdictions is the written portion of the exam. If all you know how to do is regurgitate legal knowledge, you will certainly fail. We really do need to see your legal problem-solving ability, whether you are writing a response to an essay or a performance test.
LSJ: And not everyone has the ability to solve legal problems.
GRADER: But virtually everyone has the ability to memorize.
LSJ: And it easier to memorize than to refine your problem-solving skills.
GRADER: Yes, it is. Which is why so many failing candidates spend 12-14 hours days in the library memorizing law.
LSJ: What about the MBE?
GRADER (chuckling): The grader there is a scantron.
LSJ: I already know the answer to this, but does a high MBE score guarantee a pass?
GRADER: Not on the California bar exam. You need to understand that nearly 70% of the California bar exam is written. From a weighted standpoint, the passing is in the writing.
LSJ: Through the years, I have seen many raw MBE scores in the 150s – yet the candidate failed the exam. In fact, I have an actual score sheet in my office where the failing candidate scored 152 raw on the MBE.
GRADER: I’m sure.
LSJ: Interestingly, only once have I seen a score sheet where the candidate clearly passed the writing but didn’t pass the bar exam. One candidate scored a 710 raw on the written portion, but did not pass the exam, which is rare. Her scaled written score was 1510 [70 over passing] but a very low MBE score kept her from passing the bar exam. Almost always though, a candidate fails because of the written portion. Rarely do you see a failing candidate with a passing written score. Almost always with a failing candidate, the written score is a failing score.
GRADER: I am certain that is true. A very low MBE score, say, less than half correct, will certainly equal a failing effort overall, no matter how well one writes. But a high MBE score, say, 75% correct, will not necessarily lead to a passing effort overall. As I said, ultimately the passing is in the writing. Putting things in perspective, if a candidate can write, on average, 67.5 essays and performance tests, and score 128 raw on the MBE, they will pass the California bar exam. That, of course, is easier said than done.
LSJ: Talk to us a little bit about scores. A 70 essay isn’t really like getting a C, is it? It’s not like getting a 70% grade on an English paper from your undergrad professor, is it?
GRADER: Writing a 70 essay answer for the California bar exam is much more difficult than writing a 70 English paper in undergrad. Think of it like this. A bar exam essay that achieves a score of 85 or higher is, for all intents and purposes, like scoring an A+ in undergrad. More rare than common. An 80 essay is like an A in undergrad. A 75 essay is like an A-. A 70 essay is like a B+. A 65 essay is like a B.
What does all of this mean? Writing a 70 bar exam essay is definitely on the difficult side, just like writing a B+ English paper is at a competitive undergrad school. Most failing candidates write a collection of 50, 55, and 60 essays. Most failing candidates top out at 65. I think it is important to point this out. Too many candidates foolishly think they are innately capable of writing a 65 or 70 essay because of the undergrad connotations. Truthfully, most candidates are not capable of writing a 65 or 70 essay for the California bar exam, and they all find this out once their score sheets are mailed to them.
LSJ: I think most candidates overestimate themselves when it comes to the California bar exam, especially attorney applicants.
GRADER: Well, the attorney pass rate is very low. Probably because attorneys from other states do not realize that writing an essay for the California bar exam is not like writing an essay for the jurisdiction in which they are licensed. That, and they do not realize that writing a response to a California bar exam essay is nothing like the writing they do in their law practice.
LSJ: Too often, I will hear attorney applicants say, “I have been practicing law for 25 years . . .” So what, I think to myself. Practicing law for 25 years has nothing to do with passing the California bar exam.
GRADER: Most attorney applicants are too eager to let us know what the answer is. The methodical thought process behind their answer is usually missing, and that is why they fail more often than not.
LSJ: And that is why they can’t understand why they failed. “I passed New York’s bar on my first try,” they’ll say.
GRADER: Different standards. Different essays. Different performance tests. On Tuesday and Thursday, simply not the same exam. California’s exam is worlds different.
LSJ: How does one’s LSAT score play into all of this?
GRADER: I hate to say it, but significantly. An LSAT score of less than 150 means that the candidate will ultimately struggle with the bar exam, if not law school. If you want proof of LSAT correlation, just look at the pass rates of the different California law schools. Year in, year out, Stanford’s pass rate on the California bar exam is one of the highest in the state. You do not get into Stanford law school without an extremely high LSAT score.
LSJ: And some of the smaller, unaccredited schools, where the LSAT scores are obviously lower -- those schools have pathetic bar pass rates. You can get accepted into those kinds of law schools with very low LSAT scores.
GRADER: Bar after bar, the pass rates of the upper-echelon ABA law schools in California are very high, even though California’s overall pass rate is very low. So, yes, there is definitely an LSAT correlation when it comes to passing or failing the California bar exam. Ultimately, a school’s bar pass rate will align itself with its median LSAT score, despite the implementation of in-house bar reviews.
LSJ: I have been on staff at various law schools through out the years and the quality of in-house bar reviews is almost laughable. Informational in nature with an emphasis on mechanical IRAC, taught by people, in many instances, who never sat for the California bar exam. Or taught by people who simply do not know how to teach the skills necessary to pass.
GRADER: Any other questions? I do not want to turn this into a law-school bash session.
LSJ (laughing): Or taught by narrow-minded professors who insist rule statements are part of IRAC . . . Sorry.
GRADER: I think we covered a lot of ground today. I think there is some excellent information in this interview, if I may say so myself.
LSJ: Yes, thank you for taking the time to speak with us today, and thank you for going out of your way to get in touch with us.
The bar grader was interviewed by Steve Liosi, Esq., the publisher of the Law Student Journal and the program director of Barperfect bar review. For more information about Mr. Liosi’s bar review course, visit www.barperfect.com.
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