CASE BRIEFING & NOTE TAKING: 2-4 Line Case Briefing (and no more than 1/2 page of notes per class hour)

By Wentworth Miller

You were instructed to do so by your professors. Possibly you were shown how. Some few professors even require initially that briefs be turned in. They want to make sure that everyone is on the same page in terms of laying a foundation for that dreaded first year rite of passage -- the Socratic give and take that many law professors engage in. You know, that's where the professor introduces discussion of a case by calling on someone to provide the information contained in a brief. Some professors require that the victim stand up for this recitation (!!).

It is supposed that by briefing law cases and discussing them in class students will learn to be lawyers. It has been so for over 75 years, since the "case method" of instruction popularized by Dean Christopher Langdell of Harvard Law School supplanted more traditional lecture approaches.

Problem is, it doesn't work. If the objective of law schools is to train lawyers (what else could or should it be?!), law schools across America -- virtually all of them! -- largely fail in their mission. And conventional case briefing is a primary culprit.

How do I know this? Where do I come off making such a sweeping condemnation of one of America's great institutions? As we say in the law, "Where's the evidence?"

Well, first off, briefing cases as described above is what my classmates and I did thirty years ago at Yale Law School. Every evening, at least initially in my law school career, I endeavored to pull the required briefing information from each case and set it down on paper in preparation for class. However, as the professor quickly moved into "what if" conjecturing about the case, positing new fact scenarios, etc., my brief didn't seem to be of much use in following the discussion. I became confused, then bored. But at least I had my brief. I was "prepared." I took copious notes -- about three pages per class hour (perhaps four pages today if using a laptop) --, and I supposed I would make sense of it all later. Which, of course, I never did.

Like most law students, I remained confused and "behind the curve" as the term progressed. I amassed a mountain of notes in each class that proved largely useless when it was time to prepare for all-important final exams. (I had the Hobson's choice most law student's face of -- finally -- nailing down so-called "black letter" legal principles, or wading through all those cold notes.)

I ultimately learned to be and think "as a lawyer," not by dint of classes conducted by my esteemed professors, but as a result of experience in mock trial and moot court, as a result of experience in summer and legal clerkships, and mostly as a result of experience actually practicing law. (The same way Abraham Lincoln and Clarence Darrow, both skilled lawyers, learned their trade!)

Ask any lawyer. He/she will tell you he learned to be a lawyer not in law school, but by practicing law. It may even be that law school instruction is something to be overcome if success is to be had on a bar exam and in legal practice.

I also know all this because I have been intimately involved with well over 100,000 law students from virtually all the 200+ law schools during 25 years conducting Wentworth Miller's Legal Essay Exam Writing System ("LEEWS"). I've instructed not only a good percentage of the nation's lawyers, but many current law professors. (Regrettably, owing to peer pressure and convenience, most of these professor-protégés seem to have fallen into the lockstep routine of advocating conventional case briefing and blah, blahing in front of confused and bored classes.)

Like most law students, and as I did, you will soon jettison the elaborate, page-long briefing regime. It's simply too much work to keep up with. What you'll do is "book brief." That's where facts are highlighted in one color (yellow?), issue(s) in another (green?), holding(s) in another, and rule(s) in yet another color. In addition notes are scribbled in the margins. Were one to suspend, Spiderman like, from the ceiling of a first year law classroom four weeks into term, the color pattern below would be dazzling!

Unfortunately, while more manageable, book briefing is no more effective in preparing students for class, for exams, or for practicing law.

So what should you be doing? In a nutshell, briefing cases in 2-4 lines, taking no more than a half page of notes per class hour, doing a lot more THINKING about the law and its application, and a whole lot less busywork scribbling.

My program, live in 25 cities or equally effective audio CD version, is comprehensive -- an A to Z on how to prepare for and write the rare law school "A" exam. You can read about us, get a lot of useful free advice, check out our nationwide schedule of live, one-day programs for this fall at our website -- www.leews.com. However, what I'd like to focus on here is the 2-4 line case brief (and as a corollary, 1/2 page of notes per class hour). This is merely a byproduct of our instruction, kind of a bonus. But no matter. Most students consider it a major benefit.

Several years ago I was invited to instruct the exam writing segment of one of those one-week, pre-law simulations of law school that costs over $1,000 to attend. I was flattered and requested they send me their material to review. I quickly decided that what they offered wasn't anything new. Indeed, while helpful, their entire program was rendered largely obsolete by what I had to offer. As I said to the principal of this outfit, "If I give my program at the end of the week, they'll wonder why they had to bother with what you instructed the previous four days."

What particularly leapt out at me was the elaborate, page-long case briefing scheme they planned to teach students. It was the same old same old. Nothing seems to change in the hidebound world of law school instruction.

Of course, what I've been saying should strike you as controversial. In fact it's heresy. Nearly every law professor wants you to brief cases in preparation for class. Nearly every one, should he or she deign to offer instruction on the subject, will advise a version of the briefing described above. So if you show a professor this article, that professor will likely dismiss what I have to say out of hand.

This is where a little faith is required. Naturally you want to repose your confidence in the wisdom of your revered law professors. You're excited to be starting law school. Professors initially loom almost godlike. Surely they would not steer you wrong. Surely they know more than some guy hawking the sort of study aid that most law professors decry.

Well, hold on. I HAVE been at this much longer than most of your professors. Recall my "evidence" above. Please hear me out. Judge for yourself whether what I have to say makes sense.

What does a 2-4 line case brief look like? How can it equate to, even be superior to a page-long conventional brief?  1-3 lines will be a precise statement of legal tool(s) -- rules, principles -- introduced by the case. As this law is often presented in fragmentary fashion in cases (because not all parts of the rule/principle will be relevant to the issue[s] of the case), your construction of a complete statement of law will normally require reference to a commercial outline (Gilbert's, Emmanuels, Legal Lines, etc.). You should have one of these next to you as you read the case. (Hint: Try to find a used copy, as well as used textbooks. If you know someone who took a bar exam, his/her bar review materials will also present concise and complete statements of "black letter law.") One line, ten words or so, will be a synopsis of the facts of the case -- e.g., "Used auto sale. Offer held open two weeks later." (Oops! Got a little "holding" in there.)

That's it! Just enough facts to trigger your recollection of the case, and the law introduced by the case. No procedure, issue, holding, rationale (the underlying WHY of the case).

How is this possible? What if you're called on? How are you going to remember the facts, issue, holding, ... all the stuff the professor wants you to recite?

First things first. Understand that class recitation usually doesn't count a whit toward your grade (whatever the professor says to the contrary). You don't want to be "unprepared," because that will annoy or anger the professor, who will then make an example of you, possibly even order you to leave the room. However, normally it will take two or more "unprepareds" before a mark is put next to your name with possible consequences for your grade. By and large class participation is a non factor, grade-wise, because across the board in law school grading is anonymous or blind. (Anonymous grading protects professors against charges of bias, and also protects you!) Besides, if you can manage a 2-4 line brief, you will never be unprepared.

The reason is that the rest of the information is IN YOUR HEAD!

If you understand that the purpose of a case, the reason it is included in your assigned reading, is to introduce one or more legal precepts, and that on the exam you will be expected to apply those precepts, "lawyerlike," to a set of facts you've never seen before (much as a lawyer would apply relevant law to the facts of a case he/she is presented with), then you bring a proper perspective to your reading of the case. It's not about rote memorization of facts, procedure, etc. It's about learning how to apply law to facts in lawyerlike (or judgelike) fashion, with the case serving as an exemplar of such application in just one set of circumstances -- facts that you will never, ever see again(!!).

The professor wants you prepared in the sense of knowing facts, etc. But this is but a necessary foundation to the primary classroom exercise of exploring how the law was applied, how a slight change in the facts might produce a different outcome, and (here's where law students get truly mystified) possibly an exploration of how societal, philosophical, sociological, and other factors (so-called "policy" aspects) might dictate a change in the law itself. This latter exploration is a favorite with law professors, particularly at so-called top law schools.

The problem is that the professor has yet to instruct HOW, exactly, lawyers think about and apply the law to facts. Because briefing, per se, and the blah blah in class doesn't get that job done. The idea is that by reviewing what happened in appellate judicial opinions -- lawyer arguments, judicial reasoning --, you'll learn to think "as a lawyer." But this is like trying to learn to ride a horse or drive a car without actually doing it. It doesn't translate.

Well, admittedly, a few seem to catch on. However, the bored and confused looks of most students, the mediocre performance of over eighty percent of law students on final exams (most of them smart, diligent, and with "A" averages in college), prove that the case method isn't getting the job done.

The problem is that law students, coming predominantly from the theoretical, academic world, are not disabused of their habit of sloppy, spiraling intellectualizing by reading and briefing cases. Indeed, they are abetted in such fuzzy thinking by the professor's own bent toward philosophizing and "policy thinking." (In most instances your professor isn't truly a lawyer. Perhaps clerked a couple years in a firm and for a judge, but probably handled very few cases as lead attorney, and certainly never tried a case.) Indeed, the words "lawyer" and "attorney" are almost never heard in law school classrooms.

Until you learn to "analyze as a lawyer," you can't really learn the law properly. You try to memorize a principle, or the parts of it you encounter in a case. Possibly you can state the rule. But you can't apply it to new facts in the nitpicking, element-by-element way a lawyer would. (You aren't even aware that this is what is expected on the exam.) You scarcely understand what happened in the assigned case. Moreover, you're expecting the professor to clear things up for you, to sum things up, to say, "The law is ...," so you can write it down, and they never do. PROFESSORS DON'T SEE IT AS THEIR JOB TO TEACH YOU BLACK LETTER LAW!

The net result is that law students busy themselves briefing cases in the conventional sense, but with very few exceptions take their preparation to the crucial next level needed to exhibit mastery on exams -- having grasped what happened in the assigned case, having distilled the complete black letter legal precepts introduced, begin to change the facts of the case to think, "What would happen if ...." Begin to make up new fact scenarios (hypotheticals) prior to class, and think about the application of the law in those new instances. This is the kind of thinking needed, if you are to follow and benefit from class discussion, and if you are to exhibit lawyerly skill on exams.

Isn't that what your professor does in class -- change the facts, introduce new scenarios? And you can't follow the discussion, because you don't know the law well enough. You've had enough trouble trying to figure out what happened in the assigned case.

Imagine if you had learned to think in the nitpicking way lawyers do. (It's something akin to how mathematicians and hard scientists think, versus English and history majors, possibly a clue to why science majors tend to do better on law exams than others). Imagine if you understood that the law is essentially a tool to be applied on behalf of achieving client goals, and you knew how to do this.

Your focus in picking up a case would be, "What's the (legal) tool introduced here?" "How was it applied?" "The determination of what aspects were problematic (raising 'issues!')?" "Changing what facts would alter the outcome?" "Let's see if I can think of any scenarios that might call such law into question?"

If you were doing this kind of thinking, rather than the busywork of constructing a conventional brief, consider what would result. As a byproduct of such close, applicational thinking, the facts of the assigned case would be pretty locked into your brain. As would the issue, holding, and rationale. A mere ten-word synopsis of the facts would serve to trigger this information in your brain -- certainly through the next day when you attended class. As for the procedural aspects of the case -- what court was appealed from and to, etc. Who cares(?!?), unless it's a course on procedure. Has no relevance to the all-important final exam.

Now you would indeed be prepared for class. Law, facts, issue, etc. securely locked IN YOUR HEAD, you could attend profitably to the professor's forays into changing facts, offering new scenarios. Much of what comes out of the mouths of fellow students would be elemental and redundant. You wouldn't have to write it down. (Is there really more than 20 minutes of useful discussion in a 50 minute class? But which 20 minutes? Your knowledge and continual focus on what counts -- exams! -- would enable you to judge.)

You would pay attention to important things like the professor's biases and preferences. Since you know the black letter law -- cold! --, you would know if the professor changed the law(!!), say, quibbling with how a particular element should be interpreted -- e.g., emotional injury in the tort of intentional infliction of emotional distress. This would be a likely topic on the final exam.

Indeed, your focus throughout would be -- properly! -- on the final exam. What law will I be responsible for? What is the professor interested in? Need to get a citation for that article the professor mentioned.

If you have grasped and practiced what we at LEEWS instruct, you won't sit in class scribbling copious notes. Get rid of that laptop! It only encourages more note taking!

Rather, you'll spend much of the time nodding thoughtfully, mentally confirming what you've already been thinking about. The 2-4 line brief would be in the left margin of your notepad. Next to it you would jot an occasional note -- e.g., professor feels "more than a peppercorn" means ... (in the sense of what constitutes "consideration" in the making of a contract). MORE THINKING, LESS SCRIBBLING!

The problem, of course, is learning to "think as a lawyer," so as to be able to shift from a theoretical bent and approach to reading cases, to a practical, (client's) goal-oriented approach to viewing and working with the law as a tool to be applied to facts. Until you make this transition, you can't manage 2-4 line briefing, 1/2 pages of notes per class hour, and 10-30 page course outlining.

Sorry! We must apologize for teasing you. Unfortunately, no one and nothing else approaches the instruction on lawyerlike thinking we offer at LEEWS (as well as how to break down "hypotheticals" to reveal issues, how to present analysis in concise paragraphs, etc.). There are no shortcuts.

But perhaps, hopefully, I have opened your eyes somewhat, given you a tantalizing vision of what could be. Law school and law school classes CAN be more comprehensible, interesting, and instructive. Law exams can be more manageable. Any lawyer will tell you that the practice of law is a lot more fun than law school. Why? Because hands-on use and application of law as a tool to help clients achieve objectives (get money; avoid paying money; obtain property with clear title; stop a competitor from stealing trade secrets; stay out of jail; etc.) is intellectually satisfying and emotionally fulfilling (and pays some bills!).

In conclusion, I hope I've piqued your curiosity and shed a little useful light on the situation. Probably you have cases to brief. Better get on with it!

But while you're briefing, know that you could be doing a whole lot better job of it in only 2-4 lines.

Log onto www.LEEWS.com for information about exam-writing seminars in your area. Look for the LEEWs ad in our September and October issues. Los Angeles and San Francisco dates will be listed.    

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THE ROLE OF ANALYSIS: Your midterms, your final exams and the bar exam are not testing how much law you know. A photographic memory is of little, if any, help.

By Steve Liosi, Esq

Archived Article Jan/Feb 2008......

[Publisher’s Note: In addition to publishing this newspaper and dabbling in the practice of law on rare occasion, I have provided a tutorial program for numerous California bar exam candidates since 1994.  In my travels, so to speak, I have encountered a variety of law students, some bordering on genius, some bordering on lunacy.  All, though, have one obvious denominator in common: they will either pass or fail the California bar exam.  Why some pass and others fail is not as glaring as one might think.  High LSAT types fail.  Low L-SAT types pass.  Emotionally stable individuals fail.  Emotionally compromised individuals pass.  All “passers”, however, have one thing in common.  So do all “failers”.]

Early on in my career of helping people pass the California Bar Exam, I was often stunned by how unknowledgeable certain candidates were about the law school and bar exam process.  And some of these people came from stellar law schools: Stanford, UC Davis, UCLA, USC, and Chapman.  Some even had LSAT scores off the charts: 170+.  Yet, they were having great difficulty passing the nation’s toughest bar: California’s.  One candidate in particular, who came from an ABA law school located in New York, didn’t understand the tort concept of substantial certainty as to intentional torts.  An ABA grad couldn’t articulate a One-L concept!?! “Something was rotten in Denmark.” But what?

Eventually, I learned something alarming: many students do not fully engage the law school process (see Professor Fleming’s front-page article), even though close to $100,000, in many instances, is being spent on tuition.  I have heard some interesting dialogue through the years.  This, from a USC repeater grad:  “I never studied in law school.  I’d open commercial outlines 2-3 weeks before finals.  Memorize exam approaches.  Sometimes get a B, but usually I got Cs.” All of this was said with a hint of cockiness, as if scoring Cs with little study was something to be proud about.  “Well,” I said to myself, “you’re paying the price now.” Another student was “victimized by circumstances,” he maintained.  “In law school, I had a wife, 3 kids, and worked 60 hours a week.  I never opened a book.  I had to listen to tapes whenever I was in the car, which was often because I was a T-ball dad.”  “Well,” I said to myself, “you created the circumstances.”  (Another student [yours truly] said, “Oh, I had the time to study, but I just didn’t.”* “Well,” I said to myself as I entered my third year, “you’d better have the time to study now.”)

The obvious denominator in common?  Virtually all repeat candidates don’t do what all law students should do: treat law school as if you are studying for the California bar exam.  Make your own outlines by utilizing a commercial outline as nothing more than a template.  Learning the law from a commercial outline solely, can be hazardous to your academic health.  (Most, but not all, commercial outlines are either too short, and teach nothing, or too long, and waste your time with unnecessary minutiae.)

Now, if you’re entering your last year of law school and now realize you haven’t appropriately engaged the law school process thus far, not all is lost: I used my entire last year of law school to prepare for the California bar exam, which, thankfully, I passed on my first attempt.  (*Re: years 1 and 2: “I had the time to study, but I just didn’t.”) I’m not suggesting all 1Ls and 2Ls follow my lead–in fact, do not!  But, I am telling all 3Ls, who wasted their time as 1Ls and 2Ls, to start preparing for the February 2008 California Bar Exam . . . NOW!

What exactly do I mean by “prepare”? To me, memorization has very little to do with “preparation”. Unlike undergrad, where the exams were mainly regurgitative in nature (i.e., memorize and regurgitate all that you memorized), the bar exam (and law school midterms and finals, for that matter) are asking you to problem solve. And it is very important that this is realized as early as possible. If you think law school and the bar exam is all about knowing the law, then you will not properly prepare for the task before you. You will spend countless and futile hours lost in memorizing when you should be doing whatever is necessary to perfect your analytical and problem solving skills.

To see what I mean, let’s work through the following Torts mini fact pattern, thinking out loud:

On a cloudy, gloomy day, John, wearing gum-soled shoes, slowly snuck up behind Mary without making a sound, and hit her on the back of her neck. After doing so, John, a mean-looking man, just stood there.

Did John commit a Battery? Of course he did.

Was the touching “intentional”? “No facts indicate that John’s striking was other than an intentional, volitional act.” Not much thought on this element.

Was the touching “harmful”? “Of course it was!” Are you sure about that? Do we know how hard John hit Mary? If we don’t know for sure, then we cannot conclude with certainty that the touching of Mary was harmful. Perhaps John did not hit Mary with very much force. Or, maybe he hit her with all of his might. But since we do not know for certain how hard John hit Mary, our analysis would have to be bifurcated: i.e., “If John hit Mary with all of his might, the touching of Mary was certainly harmful. If, however, John hit Mary with very little force, then the touching of Mary was not necessarily harmful.”)

That said, was the touching at least “offensive”? Few people would want to be hit from behind, don’t you agree? Most people would find such an act offensive. On this fact, it does not matter how hard John hit Mary. All that matters is whether a reasonable person would find the touching offensive. Most unconsented touchings are offensive, no matter the force or lack thereof. If a man ever so slightly and purposefully grazed a woman’s breast, it would certainly be offensive if unconsented, yes? Therefore, “John’s touching of Mary, if not harmful, was likely offensive since most people do not want to be hit from behind without their consent.”

Was the touching “without consent”?  “Since John slowly snuck up behind Mary, we can reasonably infer that he did not have Mary’s consent to hit her.”

Was the touching “without privilege”?  “Lastly, no facts indicate that John’s striking of Mary was in self-defense, especially since John slowly snuck up behind Mary. Even if Mary had been the initial aggressor, John’s privilege had passed since he struck Mary from behind in a deliberate and surprising fashion, which indicates that Mary, at that moment in time, did not pose a threat to John. Therefore, John should be found liable for Battery.”
This is how you would need to think your way through the above Torts mini fact pattern in order to write a superior response. Knowing the rule statement for Battery would not help you with the required thought process. Nor would having all of the requisite elements memorized.

Let’s continue.

Did John commit an Assault? No! Are you sure about that? Well, you’re probably thinking Mary couldn’t have seen John’s menacing shadow approach her – it was a cloudy day after all, right? Mary couldn’t have heard John sneak up behind her – John didn’t make a sound, and he was wearing gum-soled shoes, right? Therefore, you are probably thinking, no way could Mary have been placed in apprehension of an imminent battery, right?

Actually, not necessarily.

Visualize the mini fact pattern in your mind like a movie.

Think “reasonable inference”.

Do not create facts, but make a “reasonable inference” to find an assault.

Would it be reasonable to assume that Mary turned around to look at who had just hit her? Would most people turn around if someone had just hit them from behind? Yes, they would.

So, then, if John, a mean-looking man was still standing there after having hit Mary from behind, would it be reasonable to assume that Mary, at that very moment, after turning around, was placed in apprehension of an imminent battery (i.e., placed in apprehension of being hit again, especially since John was so mean-looking)? Yes, it would certainly be reasonable to make such an inference.

Keep in mind, there is a significant difference between making a “reasonable inference” and “creating facts”. An example of creating facts: “Since Mary went home and had nightmares that required psychiatric care, John should be found liable for Intentional Infliction of Emotional Distress.” What?!?! Where did those facts come from?

The moral of this quiz and article? Legal knowledge, in and of itself, has little to do with the ability to think analytically and write analytically. If you place the emphasis on memorization, rather than skill optimization, you will be certain to struggle with both law school and the bar exam.

Steve Liosi, Esq. is the Program Director of Barperfect, a tutorial review company that has been helping law students and bar candidates since 1994. For m ore information about Barperfect, visit www.barperfect.com

Law Student Journal (LSJ): First, a little bit about the new subject matter having been added.  Many students are saying “Oh, no! Three new subjects!”  Is that really the case?  Three new, full subjects?

Paul Pfau: Well, the three new subjects that were just added are not entirely three full subjects.  Part of the subject matter enhances some of the subjects that are presently on the bar exam.  For Evidence, you now also need to know California Evidence.  There are many similarities between the two.  But there are some areas that are a little different.  For example, in the area of privileges, there are typically many more areas in California than as is generally the case under the Federal Rules of Evidence (FRE).  And there are some other differences.  But it isn’t an overly tremendous burden in order to learn the differences involving the new California subject matter. 

With respect to Civil Procedure, like Evidence, you need to now know the federal rules and the new California rules.  Once again, there are many similarities.  For example, you need to know subject matter jurisdiction, personal jurisdiction, and so forth.  But those rules will vary from the federal to the California jurisdiction.  The same overview, however, in terms of how Civil Procedure is organized, is generally the same.  If you think about Civil Procedure as a subject that impacts the prosecution of a civil case, beginning with what court to bring the case to, jurisdiction, what law to apply, choice of law, pretrial, trial, appellate, and final judgment issues, you can organize both the federal rules and California rules around those basic themes. Then, just know the variations on those themes as they relate to both the federal and California rules.

The only subject where new information, or where completely new subject matter is required, is the area of Business Associations, where, now, one needs not only to know Corporations, but also Agency & Partnership.  However, many of those concepts will probably be familiar to students in other areas, such as respondeat superior, vicarious liability, and so forth.  So, yes, there are “three new subject areas” -- with quotes around it, but all of it can be easily digestible depending on your approach to learning and understanding both the similarities and the differences.

LSJ: Will the new subject matter impact pass rates?

Paul Pfau: Well, my comment, at best, will probably be anecdotal.  There is some evidence that when the bar adds new subject matter, the bar pass rates for the initial administration may at least be the same, if not a little better.  So, in that regard, it can offer an opportunity to students who take the time to integrate the new subject matter with the current subject matter. Other than that, the new subject matter implicitly will affect pass rates if students don’t learn it.  So, it is important to begin to integrate that into the preparation process as soon as reasonably possible.  But, once again, the subject matter does not create an unreasonable burden, given the similarity to the subject matter that is presently required on the exam.  Keeping in mind, however, that part of an applicant’s grade is impacted by their competition through the “scaling process” – the new subjects can add an opportunity for those applicants who emphasize them in their preparation.

LSJ: The end of November is when bar results publish again.  To me, many students are foolishly waiting for that day to start studying again.  Any thoughts?

Paul Pfau: Well, the culture of the bar preparation process, rightly or wrongly, generally causes students who are awaiting results to begin studying once the results come out for those students who are unsuccessful.  And part of that is understandable in terms of the tremendous amount of work that students undertake in getting ready for a bar and the need for some rest.  From a logical standpoint, though, it is very prudent to start studying again as soon as possible.  For example, if there is a month left until results, the student, even at a light-duty standpoint, should begin to recalibrate their substantive understanding and memory of subjects and begin to learn some of the new subject matter, so, that in the event they take the test again, they can have a running start.  You don’t have to give it the same intensity necessarily that you will in the weeks after bar results, but, if you can begin to integrate it on a casual, or even gentle basis, before hand, it can work to enhance one’s skills in getting ready for the examination, and certainly won’t do any harm if you pass the bar and you go off to practice.

LSJ: Any wisdom for students who do not see their name on the pass list?  Simply studying more and memorizing more rarely is the cure next time around.  Unfortunately, that is what many students do, however.

Paul Pfau: Well, first, my empathy to all of those who are unsuccessful.  There is a tremendous amount of work involved in getting ready for the bar, and often in life we don’t get what we want right when we want it.  But, the prize will always go to those who are persistent in pursuing this great goal of passing the California bar exam. 

In getting ready for the next bar exam, it is always important to try to learn from those lessons from a preceding exam in terms of how one might have prepared and performed on the test.  And, whatever the course of action a student takes to get ready for the next bar, it is important to remember that you are getting ready for a bar that requires very precise skills to be able to solve a problem under timed conditions.  That is the essence of the California bar exam, and that is what makes it one of the most difficult in the nation.

And, so often going back to emphasizing a review of the substantive law, while it can put one in a comfort zone in terms of thinking that maybe they didn’t know enough law and that significantly more than anything else contributed to not passing, learning the other skills that will compliment one’s substantive understanding and memory are as, if not more, also important.  Learning how to organize better, learning how to write under timed conditions, learning how to see issues as they have a tendency to cluster, and learning how to organize a performance test, learning how to select the best answer a little bit better on the multistate.  There are very definitive skills that can be added to one’s substantive knowledge, which will tend to get one more precisely prepared and ready for the bar given its nature as a timed test.  However one goes about it, all bar candidates should try to add those skills to their test-taking regimen.  And, all the best.  It’s easy to empathize, having worked at this for many years, on success the next time around, however that occurs.

LSJ: You have been helping bar candidates for nearly thirty years now.  And, why don’t you take this opportunity to tell our readers a little about your course.  How does the process at Cal Bar Tutorial Review work?

Paul Pfau: It is a program oriented for those who, in effect, want a personal trainer to sheppard them through the entire review process.  Common with other courses, there is an in-class component.  There may be people in the classes taking the next bar or a future bar.  But common to all applicants, is the goal to learn those methodologies that you then apply to your individual schedule.  Secondly, each applicant has a very disciplined individual schedule where literally, every hour is programmed.  That is important because it more precisely incorporates those kinds of exercises that will specifically develop not only substantive knowledge, but also the host of writing and multistate skills necessary for the bar as a timed exam. 

In contrast, a more generic approach will often find applicants working hard but often not precisely developing the skills that will cause them to see issues as they have a tendency to cluster, or to be adaptable in being able to write under timed conditions, given the complexity of problems.  So, for example, in our course they learn about six different paragraphing methods to accommodate that, and so on.  When I work with applicants, there is also an individual component where I teach them on the front end how to use the methods and then on the back end how to benefit from more precise feedback.  That way, they can in effect build their skills more precisely, and get away from that more generic approach to bar review.  Lastly, there are materials that I use which contain the different methodologies that they implement with their individual schedules.  So, overall, the program is oriented for those who essentially need to think outside the box in getting ready for bar review, perhaps over a much longer period.  Or, to add more specific expertise to their writing and other test-taking needs in order to push their comfort zones, so they develop their test-taking skills more precisely ready for the bar exam given its nature as a timed test.

LSJ: So, Paul, it sounds like in your mind, there is more to the process than a law-based regimen.  There are obviously techniques that one has to master in order to pass the California bar exam.

That is certainly generally true. I think the point that I would primarily add is this: many candidates often don’t think of themselves as individuals and they fall into a sort of cultural predisposition that doesn’t work to precisely develop the skills that they need as individuals.  It is very important for candidates and applicants to think about how they learn.  That doesn’t just mean the law, but also learning certain skills in terms of organization, how they can increase their reading comprehension, how they can improve their issue recognition, how they can write more precisely under timed conditions, how they can choose the best multi-state response, how they can organize and understand how to write the different formats of the performance test.  When students begin to think about themselves individually, one of the first things they should think about is how much time they should give to their bar preparation.  How to use it more effectively.  And they should also think about what kind of course they should take.

When someone falls into the generic predisposition that typically promotes a two-month approach, often that student has given away a huge advantage in terms of the time that they need individually to get ready for the exam.  And the other thing is how they use their time.  Some students intuitively have good test-taking skills and don’t have the same individual needs as other students do.  And, so they have an advantage over an applicant who doesn’t spend enough time getting ready for the bar.  So, whatever your situation, have faith in your ability to pass.  It is a great goal to put the bar behind you.  You will get there.  But, as the lawyer that you are about to become, remember that success is in the details, which includes how you individually address the detailed needs that you may require in getting ready both substantively and practically for the nation’s toughest exam.  All the best.

LSJ: Paul, just for fun. And I think I will already know your answer. We have Candidate A, who is a walking hornbook and knows the law better than his professors, but has poor exam skills when it comes to the California bar exam.  Candidate B knows only 70% of the law, but is a wizard at examsmanship, a superior analytical thinker and writer.  Who would you put your money on?

Paul Pfau: Of course, the candidate with the higher skill level – in your example, probably candidate B.  Substantive review, while necessary for the bar, is often misunderstood.  The role of substantive review, to see issues and then write about them under timed conditions, is very important, but it is as important if not more so to understand how to read a bar question and to pull the issues out at more subtle levels, to organize the answer, to be able to use the facts in order to generate the standard that a bar grader expects to see. 

That said, many applicants don’t know what is meant by the phrase “use the facts”. Understand that in the facts is where you see the issues, of course. But how well you “use the facts” to discuss the issues is usually the difference between passing and failing so that you give the “weight” to those issues worth more points.   Merely identifying significant facts is not how you pass the California bar exam. And if you are so bent on learning and reciting the law within your answer without “using the facts”, passing an essay is less like to occur. 

Rather than over investing in learning the law, be sure to give time and effort to the practical development of your writing skills in order to produce the standard for the kind of exam being given.  Again, passing the exam is in the details – and they are enhanced through the more precise development of your test-taking skills.

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