The Art & Science of Bar Exam Writing: An interview with Paul Pfau, Esq.
Archived Article DECEMBER 2006....

we believe exam writing is both an art & a science - meaning, there are certain techniques that need to be in place, but the superior answer goes beyond just having the right head notes and the right elements underlined. Any thoughts?

I completely agree. Writing an essay exam for the California Bar Exam does involve the marriage of art and science. Underlying both of these ideas is to understand at a foundational level the kind of test that an essay is -- because that has a bearing on how you artfully and more precisely and technically get ready for it. An essay is an example of a problem-solving speed exam. That means that you have to have the skills to be able to write an answer under timed conditions. First, to solve the problem in the typical 15-20 minutes of a 60 minute essay, and then in the remaining 45 minutes, to be able to answer the question. In order to use the 60 minutes as effectively as possible, calls upon different skills in being able to solve the problem and then to artfully be able to create an answer that will meet the bar grader's approval.

How do you respond to the following? "In California, it's just a crap shoot. Your books are just skimmed over in 2-3 minutes. The right head notes are all that are needed to pass, analysis isn't even necessary."

Being able to create an answer that will meet the expectations of a grader, is the key for passing an essay. At the heart of passing, are probably two factors. One, seeing the issues necessary at the standard for passing a particular essay; and, two, giving the weight to those issues that is merited by the facts in the question. Some candidates will see the issues at a more or less superficial level, but not develop their discussion. So the artful presentation of an essay is important in being able to not only communicate to the grader that you have seen the issues, but that you were able to effectively reason your way through the facts to a certain conclusion. In other words, your ability to use the facts as effectively as possible in developing an issue, giving sufficient weight to the facts, is where the art comes in (i.e., "just how much weight do I give to a particular fact?"). At the heart of every passing essay is the need to see issues, but also to project them in such a way that especially highlights the use of the facts. And this is especially true in California.

That being said, is there a difference in essay writing from state to state? For instance, in California, a candidate has 60 minutes to craft an essay response, while in New York, a candidate has closer to only 30 minutes. The implication being . . . ?

For the most part, all states give the same category of tests. Again, what we call a problem-solving speed exam. The time you have to solve a problem, however, varies from state to state. Being able to develop your skill in California, where you have 60 minutes, versus another state where you have less time, is mandatory if you are going to be able to see the issues at the necessary standard and produce, through your analysis, a superior answer. Therefore, it is very important to learn over and above the substantive knowledge for a particular subject, those other skills, which are just as important in causing you to see the issues, and, under timed conditions, to be able to write about them effectively. The main idea is to be adaptable in learning to use the different kinds of writing methods and styles that can pass the California bar exam, given the limitations that you have with respect to time.

Your question talks about the different time periods you have to write an essay in different jurisdictions. In California, where you have 60 minutes, say, you mismanaged your time. If you are adaptable in being able to go to a different writing style, you can make up for that lack of remaining time. Simply put, if you're running out of time, eliminate rule statements. Never eliminate analysis.

That being said, is there a difference between writing a law school essay exam and a bar essay exam?

Generally, writing an essay in law school and on the bar exam is much the same. It is still a timed test, what I have been calling a problem-solving speed exam. But the standard for seeing issues in law school may be very different than at the state bar level where, typically, it is more competitive because there are more candidates taking the test. For example, 'A' students at some of the smaller California law schools have great difficulty passing the California bar exam. While a 'C' student from Stanford will probably pass on their first attempt. The standards are much higher on the California bar exam than in law school, and most students, unfortunately, do not realize this until they have failed.

Lastly, are rule statements absolutely necessary?

No, not always. Treating everything in sort of a one-size-fits-all mentality can get you into great difficulty on the California Bar exam. Treating every issue and every essay the same, can get you into trouble. Sometimes, there simply isn't enough time for rule statements.

Paul Pfau is the founder and operator of CalBarTutorialReview (CBTR). As the name implies, the course helps students remedy any academic and test-taking flaws that they may have graduated law school with. CBTR is not a mass-produced, one-size-fits-all course; rather, it is a course that provides personalized guidance. Visit CBTR's Web site for more information: www.CBTRonline.com.

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Passing the California Bar Exam: the Role of Analytical Writing and MBE Marketing Propaganda

By Steve Liosi, Esq.

Archived Article DECEMBER 2006......

MBE Marketing Propaganda

Unfortunately, due to marketing propaganda by a certain MBE course, many law students and bar exam candidates believe the key to passing the California bar exam is a high MBE score. This couldn't be further from the truth. Through the years, I have seen failing candidates walk into my office with raw MBE scores in the 150s. This is so common, that I see it bar after bar after bar.

One gentleman walked into my office with a raw score of 172! "How many essays did you write?" He replied, "The course I took had us write 5 essays and 1 performance test. But I did 100 MBEs a day." Score one for marketing propaganda. When I was a law student, I wrote 5 essays for each final exam!

"All You Need Are The Right Head Notes." Wrong!

One of the smaller law-based bar review courses tells its students that the essays and the P.T.s aren't even read. "All you need are the right head notes. Your essays aren't even read. In 2-3 minutes, how much can they do, right?" In 2-3 minutes, they can tell if you write analytically or not; they can tell if there is a lawyer-like thought process on the pages of your blue book

The Written Portion of the Bar Exam Is a Thought-Process Test

Some tutors, I have heard, tell their students, "If you know the law really well, you'll pass." Well, I think the candidates that score 150+ raw on the MBEs know the law really well. But knowing the law really well does not equal an automatic pass. [Think Kathleen Sullivan, former Stanford Dean, who failed the California bar exam. Don't you think she knew the law "really well"?]

What failing candidates are missing is the ability to transcribe, if you will, their analytical thought process. And, no, IRAC does not teach a person how to write. IRAC is nothing more than a structure.

Here is what Wentworth Miller, founder of LEEWS (www.leews.com), has to say:

"Do bar examiners want to see the essence of the lawyering art, analysis, reflected in an essay response? I.e., do they want to see not only knowledge of relevant law, but further the patient, nitpicking application of relevant legal precepts to relevant facts to determine a particular legal conclusion? Do they want to see whether a candidate for admission to law practice can simulate the lawyerly thought process reflected in cases and courtrooms? Well, DUH!"

A High MBE Score Equals Automatic Admittance

In some jurisdictions, yes, but not in California, where analytical writing rules the exam. If you think otherwise, why then are there so many 150-raw-MBE candidates struggling to pass the California bar exam? And why are 99% of failing bar exam blue books "law rich and analysis poor"?

Take, For Example, Essay 1 From California's Past July Bar Exam. A Simple Torts Essay That Told You What to Write About.

1. Can Paul maintain tort claims against (a) Clerk for false imprisonment and (b) Mark for negligence? Discuss.
2. Is Delta Gas liable for the acts of (a) Clerk and (b) Mark? Discuss.

Gee, real difficult calls. You sure had to spot some real difficult issues, didn't you? That's my point, exactly. You did not have to spot any issues. The California Committee Bar Examiners hid nothing from you. In fact, they told you what to write about. Yet, I have not seen one essay score from a failing candidate higher than a 60. If you're a repeater reading this article, the chances of you having scored higher than a 60 or 65 are slim to none. On an essay where the issues were given to you, you couldn't score higher than a 60 or 65? Gee, you think it could be because there was no analysis on the pages of your blue book.

"But I do analyze."

Yes, you do, but your analysis doesn't make it to the page. Most law school graduates can analyze to some extent, but most cannot write analytically. And the main reason is - they simply were not taught how. Interestingly, most exam writing seminars do not teach their clients how to write. How to write sentences of analysis, how to write paragraphs of analysis, and, finally, how to write entire blue books of analysis. No, most exam writing seminars, if not all of them, teach "mechanical IRAC" - a methodology that actually teaches students how to summarize facts after the word "here" in lieu of analysis. Listing, rather than using, pertinent facts is a writing style that will never pass the California bar exam.

"But that's how I wrote when I passed the New York Bar Exam."

"Superior writing skills are required to pass California's bar exam," Professor Jeff Cancilla, formerly of Barperfect, told the Law Student Journal in a 2006 article. "In New York, a candidate has 30 minutes to craft an essay response, which necessarily implies the emphasis is on issue spotting. In California, however, a candidate has an entire hour to respond to a fact pattern, which necessarily implies the emphasis is on both issue spotting and analysis. With that extra half hour, you'd better demonstrate the ability to analyze."

In addition to publishing this journal, Steve Liosi is the program director of Barperfect www.barperfect.com. Mr. Liosi can be reached via e-mail: steve@clsj1994.com.

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Some people are motivated away from the things that they don't like and some people are motivated towards the things they want. For example, some people will work on increasing their income because they don't like where they live or they don't like being in debt. That would be called an Away From strategy; moving away from something that is uncomfortable. A Towards person increases their income because they are thinking of the home that they prefer or they are thinking about wanting to increase their savings or their retirement fund. Most people have some combination of both such as 60/40 in either direction. Statistically, this is the most common combination with most people leaning in one direction or the other rather than equally balanced. There is a social bias that a Towards strategy is preferable but that is not necessarily true. If someone has an Away From strategy and it is working then it is a good strategy.

If you are primarily motivated away from things that you don't like then it is important that you use that strategy successfully to stay motivated. If your house is messy, there is a point where it gets to be too much and it gets tidied. At what point does the tidying begin? Does it begin at a comfortable level or is your house a disaster before you reach your threshold to clean it? Someone with an Away From strategy for cleaning their house has to notice the house becoming uncomfortable to get motivated to clean it. If you put on blinders and ignore the mess then your Away From strategy isn't working. You will have to take the blinders off and notice how uncomfortable your house is to change the threshold and have a house that is comfortable.

A Towards person is thinking about how nice the house looks when it is clean and is motivated to get it to look the way they like it. If the Towards person forgets what their house looks like with everything put away then there is no motivation that way either. For a Towards person it is important to remember what is good about a tidy house so that they stay motivated to keep it the way that they like it.

In both cases the amount of work and effort is the same but one is motivated away from messiness and the other is motivated towards tidiness.

If you think about it for a moment you can probably figure out which motivation strategy you are using. Think about something that you regularly get done. Are you motivated away from discomfort or towards a goal? You probably have a different strategy in different contexts. Most people have variations depending on whether they are motivated in their career, at home, in their relationship, etc. If you're not sure which strategy you are using in these different contexts you can begin to observe yourself being motivated to find out which strategy you primarily use.

If your motivation strategy isn't working there are things you can do to turn it on more strongly. If you are primarily Away From, build your Away From strategy. Build your discomfort level by really noticing how bad the thing you don't like is. If you hate your job, career, home or finances, and you want to change it - really notice how much you hate it and build that until you start moving away from it. If you have goals and things that you really want, notice how much you want them and develop that strongly. Think about what it will be like when you have what you want. Make it strong and really compelling.

Towards people are focused on a goal. They are thinking about what they want to achieve. They are motivated by what they want to get, have, achieve, or attain. They are energized by their goals and tend to be good at managing their priorities.

Away From people notice what they are avoiding, getting rid of and not allowing to happen. Their motivation is often triggered by an increase in difficulty or discomfort such as a new problem or an existing problem getting bigger that becomes a threat. Away From people respond to deadlines, penalties and negative consequences. They are good at troubleshooting, problem-solving, identifying obstacles and picking up on the things that could go wrong. They are motivated by fixing problems, correcting mistakes and a lack of mistakes. This is their style of writing and studying. They look for errors and correct them, constantly upgrading their accuracy by making corrections. They are often distracted by goals and are more motivated by a response to something negative. They are sometimes disliked by Towards people by being seen as negative, cynical, jaded, managing crises, and drawn to problems. To accurately determine an Away From strategy get beyond the surface reason for doing something. Most of us have been trained that it is better to think positively so our first response is often going to be in a positive direction. Dig deeper for the real reason that you want what you want and look for an avoidance pattern or a moving away strategy. Identify what you want and then find the reason why you want it. Do you want it because of what it will give you or do you want it because of what you will avoid? Away From people set goals, but they do it to avoid failure. Their reason for setting goals is Away From and that is what triggers them to take action on their goals. Away From people sometimes get easily distracted by any little thing that goes wrong. For an Away From person's strategy to work they need to have a balance of some Towards thinking to stay focused on what they need to fix and what they want to accomplish.

Towards people need to be aware of any problems that might arise and stay Towards while they work on solving the problem. They need to have back up plans and contingencies for the things that can go wrong. Without a well thought out plan the Towards person can lose motivation when things go wrong if they haven't thought about how to solve their problems.

Both Away From and Towards people need a successful combination of clear goals, contingency plans and a focus on priorities.

The Away From or Towards strategy is often what gets the person started on a project but something bigger is usually needed for completing a goal bigger than cleaning the house. For big life goals it is important to be primarily goal focused rather than problem focused. An Away From person can still be primarily motivated away from discomfort, but staying focused on problems only will not succeed in maintaining motivation. Whether the person is moving away from a problem to avoid or moving towards a problem they are solving, as soon as the problem begins to get either resolved or successfully avoided, the discomfort of the problem is reduced just enough so that the motivation stops. The problem is no longer an irritant even though it is still there. Being problem focused does not maintain motivation.

What maintains strong motivation is a focus on goals. If you are headed for the Emerald City and that is what you are focused on, if there is a mountain blocking your path you are either going to go under it, around it, over it, through it or go the whole way around the planet in the other direction, because you are focused on getting to the Emerald City. A problem-focused person is going to be stuck at the mountain and decide that it is not possible to get any further on their path. They will even forget about their goal because the problem becomes bigger than the goal. Don't ever let your problems get bigger than your goals. Don't be ruled by your limitations.

It's all a matter of perception. If goals were always easy to achieve they wouldn't mean as much to us. A challenging goal that has been reached is a valuable achievement, worthy of effort and even sacrifice. Keep your eyes on the prize!

In archery you never aim for the bulls-eye. Gravity will always put the arrow in the ground before it gets there. Raise your aim a little higher, zero in and take your best shot. You can learn to hit the bulls-eye every time.

Set a goal, define it very accurately, and generate a lot of excitement about the goal. Focus on what you want with a body of knowledge that supports that. For successful studying focus on your understanding of the material, the times when you have had good grades, good scores and good performance. This is what you want to build on. For a big important goal, think about that goal 3 or 4 times a day and get excited about it. It's a matter of focus. Attach a high level of energy to it. Learning to increase your own energy is a very useful thing to be able to do, particularly for achieving big goals. Attach an immense amount of energy to something that you want to accomplish, like riding on a roller coaster, galloping on a horse or skiing down a slope. Attach that intensity to achieving your goal and think about that several times a day.

For a long-term goal, pick your goal and put intermediate step goals in between. Put your energy in that, keeping your eyes on the end goal. All along the way there will be obstacles, problems and things to resolve, go around, or avoid to get to the other side of the problem. As soon as you reach an obstacle reorient to the target.

When a rocket is sent into outer space it is off course most of the time as it heads towards its destination. It will go off course to the right until a mechanism indicates that it is off course and if self-corrects back to the course. Then it goes off course to the left for a while until it self-corrects and starts heading to the right. The rocket is off course most of the way towards its target but it is programmed to reach its destination. As long as the rocket stays on course it will reach where it is going.

Students tend to focus on a goal of getting through school rather than to focus on what their goal is for going to school which is whatever their chosen career is. This tendency can cause a lot of people to get stuck along the way and lose sight of their original goal for going to school. The ultimate goal must be maintained in order to stay motivated to achieve all that is required for this big undertaking.

Define where you want to be. Where do you want to be? Where do you want to be five years from now - career-wise, health-wise, relationship-wise...? If you stray from that path you'll lose your focus. Motivation comes when you keep accessing the goal(s) that you really want. Attach fun to it. Make the achieving of this goal exciting - extra exciting - and really, really fun! Make it sparkle. Attach the same level of excitement to overcoming the obstacles and problems to be solved along the way to the goal. Keep looking back at the steps you have achieved to maintain your enthusiasm and belief in your ability to continue doing that as you continue toward your goal.

Here's a little exercise that you can follow now from NLP (Neuro-Linguistic Programming):
Think of a time in your life when you were really motivated. It might be that you are motivated to be in front of your TV at a certain time every week for your favorite show. It might be a time of learning something fun that you really enjoyed. It could be an experience from a younger age or something you got done easily yesterday. Think of an example where you were easily motivated; the motivation was switched on automatically. It doesn't have to be a big success. It can be any example, even a small one like making a cup of tea that you really want. Maybe it was learning a language or hang gliding. Find an example, any example, from any time in your life where you were highly motivated. Good.

Now close your eyes and go back into that memory as if it is right now; fully associate into that memory as if it is happening right now, and notice everything that you can notice from that experience - what you see, what you feel (physical sensations), what you hear, and everything that you are aware of when you go to that memory fully associated. Close your eyes and go there right now.

Write down everything that you notice: pictures, sounds, physical sensations, and everything that you notice from that memory. What are you aware of when you think about that memory of being motivated? What do you notice most strongly? What is the one signal that is strongest? Is it certain words you are saying inside your head like, "Yes!" or "This is great" or is it a picture that you see? Do you see yourself in the picture or are you looking at the picture from your own eyes? What does your body feel - exact physical sensations such as temperature, movement, muscle sensations, smiling, etc.? Find one signal that is the strongest.

Okay, now think of a goal that you have now that you want to be motivated to have. Bring the signal from your motivation memory to the goal you have now. So, for example, if you have, "Yes!" as your biggest signal from your past motivation memory, think of your current goal and hear yourself say, "Yes!" If the signal from the past memory was warmth or tingling in your body, think about your current goal and feel warmth or tingling in your body. This is a simple example of NLP using a signal from a past experience to elicit a similar response in the present.

Another way to set up motivation for a successful future is to look into the future and see yourself achieving what you are working on having. In the example of law school or the bar exam, don't focus on graduating or passing - focus on what you will have after you achieve those steps on your path. Law school and the bar exam is a doorway or a stepping stone that leads to where you want to go. The bar exam is not the destination; it is part of the journey. Focus your attention on where you ultimately want to go. It could be debt or job limitations that are triggering you to move forward but you have goals of where you want to go. Focus on that. Create a clear picture for what that looks like and put it right in front of you, ahead of you, and not too far away. You want it to be achievable in the near future so have your picture somewhat close in front of you. It's not important to actually "see" a picture, but just to imagine in your mind's eye or even just to pretend that an image is there. Good. Now look on your path for obstacles. Is there anything there that you can clear out now? Maybe you can just put it to the side of your path and walk past it. If it's the bar exam see yourself walking through that to the other side where you have your goals. See that there might be some problems or challenges on the path to your goal and see yourself climbing over or around those or resolving them in a routine manner. Facing challenges is normal in achieving a big goal and increases the value of achieving it. Go out now into that future and imagine having your goal, experience what that is like (what it looks like, sounds like and feels like) and then come back to the present with that experience, knowing what it is like to have the goal.

These are some simple exercises from NLP (Neuro-Linguistic Programming) and TPM (Thought Pattern Management). In my work with clients each session is individualized to the needs of each person. A Motivation Strategy or Success Strategy is strongly identified and made to run automatically. Powerful learning strategies, memorization techniques, and memory retrieval techniques are used and taught to increase the access you have to the information you need to know on your exams. Any blocks or barriers to success are identified and resolved. (See my previous articles in the May 2006 and November 2005 issues of the Law Student Journal.)

It takes more than knowing the law to pass the bar exam. There is a strong psychological component involved as well. By combining successful learning strategies with strongly positive states of mind, such as focus and confidence, we can elicit a successful strategy for achieving any goal. Keep your eyes on the prize!

© Pati McDermott 2006. Pati McDermott is a Certified NLP Master Practitioner, a Certified NLP Health Practitioner, a Certified TPM Advanced Master Practitioner and a Certified Hypnotherapist. She has many years of experience helping people to successfully pass the bar exam. She has been offering private sessions in person and by telephone to clients throughout the United States, Canada and internationally since 1990. She can be reached toll free at 877-881-4348 or by email at Pati@nlpPati.com. Her web site address is http://www.nlpPati.com.

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