The Article bar/bri Doesn't Want You to Read. Or, Where Does a 700lb. Guerilla Sleep? Wherever it Wants.

(Publisher's note: The following well-written article was sent to us from a life-long educator, who undoubtedly thought we would find the following interesting and enlightening. Yes, the article is 5 years old, but it is decidedly interesting for obvious reasons, and may even be enlightening to many law students. Yet, some of you might still miss the theme herein.

Let's face it, there are a slew of California law schools where the pass rates are less than 30%. And many schools, ABA included, have repeater pass rates in the single digits. Thomas Jefferson (38%), Western State (25%) and Whittier (40%) have the lowest first-timer ABA bar-pass rates in the state of California. And bar/bri conducts bar-review seminars on Whittier's campus and provides Whittier's in-house bar review course with free bar/bri materials?

In California, did you know that non-ABA schools have an average first-timer pass rate of 26%. Correspondence schools: 22%. Worse yet for unaccredited schools: a lowly 8%. And bar/bri claims to have 95% of the bar/review market - you do the math, and I'll scratch my head.- Steve Liosi, Esq.)

bar/bri backlash?

By John Harrison
reprinted from St. John's Law school,
The Forum (April 2001)
Archived Article April 2006....

It's impossible to be a law student and not know Bar/bri. Bar/bri, a division of publishing giant Harcourt Brace (Publisher's Note: Now, in 2006, bar/bri is a division of Thompson West, as is MicoMash, Barpassers and FindLaw), is the largest bar review course in the country. At St. John's, it has only one primary competitor -- Pieper Bar Review. By contrast to bar/bri, Pieper is a tiny regional company. The relative merits of each of these courses have been the subject of debate between both the companies themselves and students who have taken one course or the other. In reality, it's probably impossible to decide if one is actually "better" than the other. Both have strengths and weaknesses and both seem to adequately prepare law students for taking the bar (providing students diligently participate in the courses). An actual comparison could only be accomplished by taking both courses, and (fortunately) I have not been able to locate a student who has had such an experience.

But this article isn't about which bar review course is better. Nor is it about the relative merits of either course. Instead, this article examines an alarming tend in bar/bri's marketing practices at St. John's School of Law. Bar/bri is an extremely aggressive marketer. And like an industry leader, part of bar/bri's strategy is to minimize its competitor's presence in the marketplace. Such aggressiveness and strategies are fine; they are expected and natural behavior of large corporations. But what's good for bar/bri isn't always good for St. John's Law Students.

One of bar/bri's tactics is to heavily recruit members of the Executive Board of the SBA as bar/bri Representatives. In fact, for the past three years, the president of the SBA has also been the head bar/bri representative at St. John's. Though this might seem innocent enough at first glance, the problem with such an arrangement becomes apparent on discovering that the head rep/SBA President is paid a kickback by bar/bri based on the number of students bar/bri signs up for its bar review course. The conflict of interest created by such an arrangement is obvious; the SBA president is in a position where he is obliged to work for the best interests of bar/bri and the best interests of the student body simultaneously-interest that aren't always compatible. Factor in the monetary incentive provided by the bar/bri and the appearance of impropriety becomes glaring.

This is not to say that this year's head reps (Publisher's Note: Remember, this article was written in April 2001), SBA President, Kevin Coughlin and Academic Vice President, Rob Koubek, have done anything wrong. To the contrary, both have demonstrated nothing but commitment to the good of the student body. But that doesn't prevent bar/bri from attempting to establish a quid pro quo relationship with the SBA.

Another part of bar/bri's marketing strategy at St. John's and other schools is to act as sponsors for various events hosted by the SBA. Bar/bri is fairly generous in providing in providing cash and other support for SBA activities. The trouble is that instead of limiting the purpose of such sponsorship to establishing good will with SJU Law students -- a perfectly permissible purpose for such sponsorship activity -- bar/bri sometimes asserts, and the SBA sometimes believes, that bar/bri is owed something more in return for such sponsorship. The truth is that bar/bri gets what it is paying for in sponsorship dollars merely by being prominently associated with the particular SBA events it sponsors, and should expect no more and no less. But certain events over the past year seem to indicate that bar/bri expects more for its money.

Last year, the law school was fortunate to have Professor Pieper teach family law as an adjunct. One bar/bri rep, who asked not to be identified by name in this article, said "Erica (Fine, Eastern Regional Associate Director of bar/bri) went ballistic when she found out that Pieper would be teaching." Ms. Fine then asked then-SBA president T.J. Keevins to get assurances from the administration that Professor Pieper would not promote his bar review course while teaching his family law course. Pieper taught the course and received race reviews from students. From time to time, Pieper, without ever once mentioning his pare review course, would give tips on dealing with certain family law subjects on the bar exam; the same sort of tips that many law professionals give.
Several students in the class were also bar/bri reps. These reps reported back to T.J. Keevins and Erica Fine that, though Pieper never mentioned his course, he did occasionally give bar exam tips. Mr. Keevins and Ms. Fine then complained to one of the assistant deans that such behavior on the part of Professor Pieper was "unfair." Exhibiting an unfortunate lack of judgment, the dean called Pieper into his office, "reprimanded" him and told him that he could no longer give such tips. Understandable insulted and upset, Pieper announced that he would never teach at St. John's again; a promise he has since kept. Bar/bri got its way, Keevins got his kickback, and St. John's students lost a great professor.

Another incident revealing the impropriety of the relationship between bar/bri and the SBA occurred this past winter. Bar/bri has traditionally been a generous supported of St. John's Public Interest Auction. In fact, Erica Fine, and alumna of St. John's, was involved with the public interest committee and the public interest auction since their inception, and she has personally continues to be very supportive of both. The problem, however, stems from her signing a contract with last year's chairs of the SBA's Public Interest Committee, making bar/bri the "exclusive" sponsor of the public interest auction. The contract created several problems. First, as students, the chairs were not authorized agents of the school capable of binding the school to a contract with bar/bri. The second problem is more ominous: This year, as in past years, Pieper generously offered to donate scholarships for his bar review course to be auctioned off at the Public Interest Auction. On learning of the offer, Ms. Fine cried foul and argued that such a donation violated the terms of the agreement bar/bri had signed with the Public Interest Committee.

Not let this sink in. Bar/bri was attempting to block the raising of additional funds earmarked for the purpose of creating public interest fellowships for St. John's students. Clearly, what bar/bri saw as its best interests was diametrically opposed to the best interests if the St. John's student body. Sponsorships such as the one allegedly entered into between bar/bri and the Public Interest Committee, are supposed to foster good will with the student body, ironically, all this one did was foster enmity for the bar review giant. Fortunately, Dean Simons settles the dispute but determining that even if the contract between Bar/bri and the Public Interest Committee was valid, blocking Pieper's contribution to the auction effectively breached that contract.

The most recent incident to reveal bar/bri's bad-faith tactics occurred a few weeks ago. BALSA has arranged to sponsor a presentation by professor Pieper on how to prepare for the Bar Exam. The planned presentation was similar in scope to the presentations given earlier by bar/bri and PMBR. The presentation was free to students and food was to be served, BALSA publicized the event by posting flyers on the schools bulletin boards. One seeing the flyers, Ms. Fine complained to both the SBA and at least one dean that, by posting the flyers where they were posed, BALSA was in violation of the schools ban on commercial advertising on its bulletin board (a policy that does not appear to be well enforced). Ms. Fine denies that she ever complained to the administration about this, but at least two sources confirm that she met with at least one dean regarding the BALSA sponsored event. Ms. Fine later explained that because bar/bri was a national sponsor of BALSA, the Pieper event at St. John's violated that sponsorship. Mysteriously, all of the BALSA flyers vanished from the bulletin boards and no one associated with bar/bri knows where they went.
I again ask you to let this sink in. Bar/bri was attempting to block the promotion of an event that was being held for the purpose of raising students' awareness of the importance of adequate bar preparation. With bar passage being such an important issue for both individual students and the school as a whole, it would seem that bar/bri's efforts in this regard were clearly contrary to the best interest of the student body. Again, thanks to the actions of both Dean Simons and Dean Bellacosa, the bar/bri flyers were approved as noncommercial and reposted.

These three incidents represent the very real conflict between the best interests of bar/bri and the best interests of the student body; a conflict the SBA and the administration should be vigilant in avoiding.

I do not wish to undercut bar/bri's fine product, I myself am taking their course. Nor do I wish to undercut bar/bri's generosity or Ms. Fine's dedication to St. John's; both are significant and greatly appreciated. But I do wish to state that the SBA and St. John's needs to take a step back and reimpose an arm's length between bar/bri and St. John's. Such a step will ensure the student body's best interests are never usurped by bar/bri's commercial activities. Mark O'Rourke, the new SBA president, has already indicated an intention to take this step by promising to adopt a policy that would prohibit SBA executive board members from "repping" for any commercial entity.

Some members of the SBA have articulated a fear that if St. John's doesn't yield to bar/bri's aggressive desires, bar/bri might "pull the plug" on some of its sponsorship activities. Though this could happen, I would sincerely doubt it. First, bar/bri spends money on these endeavors for one reason: To get students to sign up for their bar review course. If bar/bri ceases such sponsorship, it runs the risk of being less visible to the student body and opening the door to its competitors to come in and reap the benefits of such sponsorships. Finally, it's important to remember that St. John's student body represents a potential two million dollars in income to bar/bri. With stakes that high, bar/bri is likely to lick its wounds and continue its support.

In addition to publishing this journal, Steve Liosi, a former Chapman Law Faculty Tutor, is the program director of Barperfect.com, a lecture-hall free bar review

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How Law Schools Help Turn Weak Students into Failing Bar Candidates

By Dr. Mary Campbell Gallagher, JD, PhD

Archived Article April 2006......

Law schools unintentionally help turn weak students into failing bar candidates. In my nearly twenty years of helping students pass the bar exam, I have observed that when law school professors tell first-year students how to study in law school, their words also help their strongest students pass the bar exam three years later. Paradoxically, without the professors' intending it, those very same words help turn weak first-year students into bar-exam failers and retakers.

Law school professors say, "Just spot the issues." They say, "Don't memorize." The strongest students may have parents who are lawyers or judges. The strongest students may have taken outside classes on exam strategy, either the ones my own company, BarWrite, offers or other classes. The strongest students, one way or another, understand what their professors are saying when they talk about just spotting issues. They understand that they must master the black-letter law and learn how to apply it. They figure out that they should outline the course and learn how to apply the outline to a new fact pattern like a checklist. For the strong students, the law school professor who says "Just spot the issues" provides excellent advice. Three years later, strong students know a lot of law, they learn new law easily, and they pass the bar exam.

When weak students hear the law school professor say, "Just spot the issues," they hear the same words but they understand something entirely different. Weak students think the professor is saying, "Don't worry about mastering the rule of law or figuring out how to apply the rule of law, just work with the facts and put names on the issues." Accordingly, weak students never do learn the rules of law. Analyzing hypos is another thing weak students think they don't need to do. Weak students spend all of their time just reading, reading, reading. Unfortunately for them, however, law tends not to stick to the brain without more effort than just reading.

Three years later, weak students do not know much law, they do not know how to learn new law, they do not know how to analyze fact patterns in law exam essays or on the MBE, and they fail the bar exam.

How should students learn the law? Here are some of the suggestions I have included in my book Scoring High on Bar Exam Essays and in the CD Companion to Scoring High on Bar Exam Essays, and that BarWrite includes on our blog, at http://www.BarWriteBlog.com, the blawg for people taking the bar exam. Students should memorize the basic principles in each subject and practice applying them to new fact patterns. Yes, professors say not to memorize. As the strongest students know, what professors mean is that students should not memorize everything, and they should not use memorizing in lieu of understanding. But everyone must do some memorizing.

Educational psychologists know that we learn things better by lightly repeating them over a long period of time rather than by trying to cram them into our brains overnight. On BarWriteBlog.com we urge students to recite the basic definitions from memory every day or every other day.

Students should practice explaining the law to other people. If you can't explain the law to another person, you don't know it. I say to students: Explain the statute of frauds and give a sample analysis of a case to your study partner or to your three-year-old child or your dry cleaner. If you can't make the law clear to another person now, you won't be able to explain it on a bar exam essay, either.

In Scoring High on Bar Exam Essays, and in our BarWrite classes, we tell students to focus on legal analysis in both the essays and the MBE. Your analysis must use both law and facts. Again and again the state bar examiners stress the importance of logical reasoning and careful proof. This is analysis. Many bar candidates lose points on the essays because they either re-tell the story or jump straight to the conclusion, skipping the analysis We invite students who want to learn more about how to do good analysis on the essays to visit http://www.BarWrite.com. and sign up for the free booklet on how to write bar exam essays. Likewise, when they do the MBE, weak students focus on the answer choices instead of using law and facts to analyze the case. Strong students know that careful analysis is key.

If a student memorizes basic law, practices analyzing hypos, explains the law to other people, practices legal analysis on fact patterns in essay questions and MBE questions, that student becomes a strong student. Strong students pass the bar exam.

Mary Campbell Gallagher is the President of BarWrite and BarWrite Press, divisions of Mary Campbell Gallagher & Co., Inc., http://www.BarWrite.com. Dr. Gallagher is a graduate of Harvard Law School and holds the Ph.D. in linguistics. She is the author of Scoring High on Bar Exam Essays and of the CD Companion to Scoring High on Bar Exam Essays, which can be used along with the book. Scoring High on Bar Exam Essays is applicable to the bar exam essays in all states. BarWrite offers courses in New York City, and, by invitation, in a limited number of other locations, on the MPT, the MBE, and the essays, as well as courses for law students. Students may also read tips on bar study at http://www.BarWriteBlog.com, the blawg for people taking the bar exam

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On 3.7538 and Being California's Dumbest Attorney*: Or, can someone wear a t-shirt with "f__k the bar" stenciled on their back ala Cohen v. California?

By Donald E. Baumeister

Archived Article April 2006......

Everyone has nightmare stories about the California Bar Exam: heart attacks, strokes, electrical blackouts, earthquakes, and typos. Why is this tale of failure worth sharing? My 25+ years of suffering-in-silence strategy had been to keep a low-profile, not cause any waves, eventually pass, apply to a local public defender's office as soon as practical, and put my bar experiences, observations, and perseverations behind me. "Fairness to the entire examinee population" compels me to address several fundamental Committee shortcomings. More accurately, I felt like the Oscar-winning actor Peter Finch who exclaimed in the 1976 film Network, "I'm mad as hell and I'm not going to take it anymore." With all its touted safeguards in place, if the Committee can misidentify a party in the call of a question or miscalculate passing scores, how can the public trust it with grading any answers correctly? I hate whiners. I didn't whine when I served in the South China Sea during the Vietnam War as a Marine Corps platoon commander with 1/9. The very best thing that has been said about whining is that it sometimes is confused with foreplay. Consequently, it has taken me since the Ford Administration to publicly speak out on what is wrong with the California Bar Examination and what should be done to fix it. I am virtually past embarrassment, shame, or professional humiliation on this issue. Just as with the 2000 Florida elections debacle, California's electrical underpowerment problems, and Hurricane Katrina, there are severe flaws in our democratic infrastructure. Though certainly not at the same level of importance, 3.7538 points shy of passing, highlights a professional entry system that is fatally flawed through misrepresentation, unresponsiveness, and unreasonableness. As far as I know, there are no veteran preference points given on the exam.

The primary goal of any professional screening process is to protect the unsuspecting public from incompetent practitioners. No one could legitimately argue that actually incompetent persons successfully "fool" the examination system, as it is currently constituted. Otherwise, there would be little need for a disciplinary arm of the bar. The current process is at the very least incomplete because there is little or no attempt to draw a logical nexus between those attorneys who become involved in the discipline process for in competency versus ethical lapses and the process that licensed them in the first place. Researching and understanding this link could significantly improve the screening process while increasing the pool of attorneys who are less likely to be involved in behavior that leads to discipline. Prevention could again become a powerful tool for the legal profession.

The Committee of Bar Examiners answers to the state Supreme Court in terms of recommending applicants for admission. The Supreme Court has been remiss in its duty to oversee and supervise the Committee. In at least two instances, the court has

overturned the Committee's decisions on admissions (Warbasse v. State Bar in 1933 and Cockerill v. State Bar in 1936). In a democratic society, government usually works best when there is light and air surrounding the decision-making process. For example, much more public information is needed about the furtive Board of Reappraisers. Who are they? Has each one taken or graded more than 41 California bar exams. Did the person who reappraised my exam have more than that level of bar examination experience? I doubt it since most graders passed on their first attempt. How many other examinees passed who were more than 3.7538 points away from passing when the reappraisal process began? I may not be the sharpest knife in the drawer but my experience vis a vis the Reappraisers ought to be worth something in the mix. If not, then require the members of the Committee to retake and pass the examination periodically to demonstrate their good faith in the integrity of the system. I'd suggest once every three years, just to help them maintain their sharpness and sensitivity to the issues. It would be a pleasant change for the Committee to agree with Dr. Robert Cole who noted that the "ultimate test of moral leadership is the ability to move decisively from 'argument to action.'"

Now, let's do the math. The Committee points to carrying out its calculations to the ten thousandths place as obvious evidence of their sincerity in permitting each examinee a full opportunity to pass the exam. Why not return to simple percents to judge passing scores? Some historical information may be illustrative here. In Salot v. State Bar (1934), the passing score was determined to be 206.5 points or 68.8% (or 1377 in today's points). Simple percentage even lawyers can understand. However, the Committee now discusses passing in terms of 1440 points (72%). But that is not quite accurate either. On the first grading, the passing score needed is a whopping 1466 (73.3%). By extrapolation, my first round score was 1441.2668 (72.06%). The reason for my reversal of fortunes is based on the re-read that invariably lowers overall scores. So what was my final non-passing percentage score? 71.8%. Apparently, this would have been a passing score sufficient by three full percentage points during the Depression but not in the new millennium. Remember, the Committee wants to hold the line on excellence just as in the past.

What the Committee has not acknowledged is the fact that it is actually more difficult today to pass the exam as this simple analysis demonstrates. Of course, examinees are expected to accept as gospel the scale score coefficients as given. The bottom line is that if I were eligible to take the attorney's exam, I would have passed by six points (1446). Additionally, my MBE score (134) would have automatically passed me in at least two other jurisdictions. It's no wonder that in the non-legal community, attorneys, trust, and arithmetic are rarely used in the same sentence.

Lastly, a system is unreasonable when clear logic cannot explain its fairness. Professor Eugen Weber (UCLA) reminds us "a wolf is still a wolf even though we believe it is a chicken." When a system has evolved which forgets why it was developed in the first place and grinds applicants into gruel over decades, something is drastically wrong in Denmark, San Francisco, and Los Angeles. It greatly strains credibility that a final decision to become an attorney can be based accurately on less than four points on an exam totally 2,000 scaled points over three days given in the rain. Even the Los Angeles Times has editorialized that "the state bar cannot demonstrate that the high passing grade means a higher caliber of lawyers here than elsewhere" (9 May 1986).

From these musings, you might draw the conclusion that I wouldn't want to belong to any group that does not want me. That's not true. I still have a sincere passion to serve the community as an advocate for my clients-to-be. These past setbacks will not deter me from boldly stepping into the ring again despite the personal and familial sacrifice it will again extract. I have almost single-handedly supported the local bar review business. But I owe it to my children in modeling for them, that, like Churchill, I will never to give up even if their dad is the dumbest almost-lawyer in California. However, I have no answer when they ask the fundamental question, "Dad, we thought you had to pass that big test only once to be an attorney?" As for the Committee, my response echoes Voltaire in 1767 who said, "I have never made but one prayer to God, a very short one: 'O Lord, make my enemies ridiculous." And God granted it.

If I don't pass this time, I will again see the Committee in late July. They will know it is me because I will be exercising my First Amendment rights of free speech found in Cohen v. California (1971) by wearing a shirt with "Fuck the Bar" stenciled on my back.

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