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THE BAR REVIEW PROCESS: An Interview
with Paul Pfau, Esq.
Conducted by Steve Liosi, Esq.
Archived Article APRIL
2007....
Paul Pfau helps with Mt. Everest, too!
WE
HAVE TOUCHED ON THIS IN AN EARLIER INTERVIEW, BUT, BRIEFLY
WHAT ARE THE DIFFERENCES BETWEEN PREPARING FOR LAW SCHOOL
FINALS AND THE BAR EXAM?
The
differences between preparing for a law school exam and the
bar exam revolve around a few fundamental factors. First,
the time that you prepare for law school vs. the bar exam
is a main difference. Characteristically, in law school, most
will conform to a cramming period of anywhere from one to
three weeks, but on the bar exam with fourteen subjects and
the three sections of the exam including the essay, performance,
and multistate, the culture for preparation is usually eight
to twelve weeks for most first-time applicants. That will
have a bearing on the strategy or planning for preparation.
For example, in law school,
many law school students do not spend time from day one of
their semester working on the development of their substantive
understanding, doing multistates for the subject if it's a
multistate subject, do any issue spotting or full writing
exercises, and so the cramming period is almost always relegated
to substantive review at the very end. Now, that culture is
often extended to preparation for the bar as well. So in that
typical eight- to twelve-week period, many of those same applicants
will go back to that same method and put the emphasis on substantive
information as the main ingredient to help them pass the examination.
The difficulty is, of course, that substantive information
by itself is usually not sufficient to equip one to have the
skills to pass the California bar exam. You can often get
away with that in law school. But never on the actual bar
examination.
So, while there is one factor
that emphasizes a longer period of preparation for the bar
exam versus a law school exam, another factor is the content
of how you spend that time in preparing for law school versus
bar exam. Successful applicants on the bar will bring to the
mix a different scope of exercises that will perfect a different
range of skills that don't only emphasize substantive review,
but the myriad of writing skills including reading comprehension,
organization, different paragraphing methods that are more
acclimated to the test as a timed exam, multistate and performance
test skills, and do the exercises that employ the use of these
skills in order to develop more precise skills and better
standards. So, spending more time for the bar is one thing,
and doing things that you typically don't do for law school
exams that are more acclimated to the kind of skills necessary
for the bar as a problem-solving speed exam is another area
of differences between law school exams and the bar exam.
IN 50 WORDS OR LESS, WHAT IS THE CALIFORNIA BAR EXAM TESTING?
Concisely,
the bar exam is testing two things: one, your ability to solve
a reasonably complex legal problem, whether in the context
of any essay, multistate, or performance test question. And,
two, to solve the problem under timed conditions.
NOW,
YOU MENTION "PROBLEM-SOLVING SPEED EXAM" - SOUNDS,
TO ME, LIKE THIS ASPECT OF THE EXAM CAN BE AN ALMOST IMPOSSIBLE
HURDLE FOR SOME, YES?
The
bar, as I mentioned earlier, is an example of a category of
tests that we might call a problem-solving speed exam. You
have to solve a problem, and do it under strict timed conditions.
If the bar wanted more people to pass, they would give you
a different category of tests. For example, they might give
you a "power" test, such as writing a term paper
or dissertation, where time is not a factor. Or, they might
give you a "regurgitative" test, such as a fill-in-the-blank
test or define-the-term test. Solving a problem and doing
it under timed conditions, though, presents the need for a
different mix of skills that often radically eliminates the
competition and keeps the bar-passing numbers lower.
In
almost thirty years of working with applicants, the two components
for passing are the ability to be able to solve a problem
and do it under timed conditions. And for many, it is not
information, or substantive review that presents the difficulty.
It isn't information. It's the ability to solve a problem
under time. Now, is this impossible to overcome? No, it is
not. Any applicant who has difficulty passing and who begins
to integrate the use of those methods that can more skillfully
cause them to solve a problem under timed conditions and to
be adaptable -- key word - "adaptable", in being
able to present effective arguments or analysis for the issues
that they do see, will, at that point, level the playing field
with those candidates who have learned to do these things
in earlier educative experiences.
To give you an example, if you
have a Criminal Procedure problem involving a police lineup,
and if candidate A has put the emphasis on substantive information
in his or her preparation, so that if the object of the test
were to define what the right to counsel is, what the "fruit
of the poisonous tree" doctrine is, what self incrimination
is, and what due process is, that candidate would have passed
the first time that he or she takes the exam. But if candidate
B understands that in a police-lineup fact pattern, those
four issues have a potential propensity to connect with each
other, candidate B is better equipped to read a Criminal Procedure
problem where there is a lineup fact pattern and to be able
to see the wider range of issues, even though both candidates,
A and B, understand the four issues.
So once again, the candidate
that more precisely develops the kind of skills that will
enable him under timed conditions to be more effective is
the candidate who passes. And if, in the example that I gave
you, one candidate learns to associate certain issues with
fact patterns over what the first candidate does in just esoterically
learning the law, that candidate will have a much better chance
of passing the kind of exam that the test is. Similarly, if
one candidate has only one way to analyze the problem and
another candidate has have a dozen paragraphing methods that
he can use to adapt to the need for speed, if he has a race-horse
problem, that candidate will better be able to perform under
timed conditions. So it isn't just substantive information
or substantive review that will cause somebody to pass the
bar. And, yes, the development of these skills is something
you can learn, and when combined with one's substantive information,
make that person a much more effective candidate for the kind
of test that the California Bar Exam is.
ULTIMATELY, IT SOUNDS LIKE YOU'D AGREE THAT THE CALIFORNIA
BAR EXAM IS A "THOUGHT-PROCESS" TEST, FIRST AND
FOREMOST. HOW DOES ONE GO ABOUT PERFECTING THE THOUGHT-PROCESS,
WHICH OBVIOUSLY NEEDS TO MAKE IT TO PAGES OF THEIR EXAM BOOKS?
When
you talk about thought process, my experience and practice
would emphasize the following for the written portions of
the exam. Specifically, focusing on the essay, for example,
there are three skills in my view that are at the heart of
the process, for passing an essay. First, one needs to know
the substantive law for the particular subject. But, second,
there is an issue-clustering skill, that when combined with
one's basic substantive understanding, will cause that person
to see the more nuanced and fuller-range of issues that are
possible in a fact pattern. And, the third skill which is
part of the over all thought process for doing well on an
essay, is what I would call a writing-style delivery system,
that allows the applicant, once he is ready to write, to adapt
to the need for speed, and to use those organizational and
specific paragraphing methods that will allow him to bring
greater balance and more weight to all of the issues in a
particular essay.
For example, if one student
puts all of his effort into substantive review, he might know
the seven theories of product liability, but will not necessarily
know how to convey her thought process. And the thought process
making it to the page is what will pass the exam, not a litany
of product liability rule statements. A passing candidate
will analyze the facts more pervasively.
WHAT
ARE MISCONCEPTIONS ABOUT THE BAR EXAM WOULD YOU LIKE TO SET
STRAIGHT?
Probably
the greatest misconception is one that has been implicit in
my answers to your previous questions, and that is that just
knowing the law or substantive review is the main or only
ingredient that contributes to success. It is an important
ingredient, but, in my view, in thirty years of working with
applicants, the role of substantive review, as a factor to
pass the California Bar exam, is sometimes overrated and misunderstood.
Understanding that substantive review in combination with
very specific skills that allow one to read and comprehend
more effectively, to organize more efficiently, to write under
timed conditions more proficiently are, in there own way,
just as important as information. If one, for example, memorizes
every little word revolving around Miranda, as a legal concept,
that is well and good. But it does not mean that that applicant
will be able to see Miranda as an issue in a fact pattern,
be able to organize it efficiently, or when combined with
other issues, have to skill to be able to write about it under
timed conditions.
Unfortunately, the culture of
bar review, which often comes from law schools, or from the
law school process, promotes the idea of cramming, or waiting
until the very end, in order to learn all of the substantive
knowledge necessary to pass the exam. And that same process,
typically, will not promote problem-solving exercises oriented
to the exam process all through the semester, so that students
come to rely on cramming the law or substantive information
as the main ingredient for passing a test. When this is extended
to the typical eight- to twelve-week period that most give
to bar review, eighty plus percent of their time is allocated
to substantive review and very little time to the development
of their practical test- taking skills that have a direct
bearing on their ability to solve problems under timed conditions
whether it is the essay, performance, or multistate.
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