BAR/BRI and Kaplan sued for illegally dividing LSAT and bar exam test-prep market
By Anayat Durrani
Law Crossing Staff Writer
Archived Article JANUARY 2006....

The April 29 lawsuit against the country's biggest bar exam and LSAT preparation companies, filed as a class-action lawsuit in the U.S. District Court for the Central District of California, alleges that BAR/BRI and test-preparation company Kaplan, Inc., agreed to illegally dividing the LSAT and bar exam test-preparation market.
The suit claims that under the alleged agreement, BAR/BRI withdrew from the LSAT preparation business and Kaplan agreed not to enter the bar-review course market. The complaint charges that "without substantial competition, BAR/BRI's net prices per student then increased substantially in most states." It claims that from 1997 to the present, Kaplan and BAR/BRI "have concealed their conspiracy to divide the market." The lawsuit claims BAR/BRI students were overcharged about $300 million since August 1997 and said customers may deserve $1,000 each in refunds.
"I do think it's curious that there's a single dominant provider nationwide," said Eric Goldman, a law professor at Marquette University Law School. "There's no indicia that the bar exam-preparation market is a natural monopoly, and most other test-prep areas have competition. So why is there only one dominant vendor in the bar exam-preparation area?"
For law students facing the bar exam, BAR/BRI is a giant in bar-review preparation. BAR/BRI claims that it prepares more than 95 percent of all students sitting for the bar exam in any year.
"I, for one, would definitely appreciate some more competitive pricing," said David N. Oskin, a law student at Chicago-Kent Law School who will be taking the bar next July. "The prices seem excessive, but people keep paying them because BAR/BRI appears to be the only reputable choice."
Oskin said he found some alternatives on the Internet, but BAR/BRI is the only one that he's seen at his school. He said BAR/BRI is very prominent at his school and enlists student representatives to help them spread the word about the bar-prep company.
"It seems to be the school-sanctioned choice, and I don't know anyone who has signed up for another method," said Oskin.
Like Oskin, University of Arizona College of Law student Jared Hautamaki said that though there are other prep courses available, they are not in schools, like BAR/BRI is. He said BAR/BRI recruits and pays students to try to get other students to sign up. He said many students have signed up and attend review sessions and materials in each of the class topics-Contracts, Property, etc.-that Bar/Bri provides to early signups.
"[They're a] Big Dog because of access, reputation, size, and market share. They're everywhere," said Hautamaki, a first-year law student. "Eventually, everyone takes a bar-review course after graduation, but I'll cross that bridge when I come to it. No one has ever given me a definitive reason for one or the other."

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Liosi: Mr. Miller, as the founder of LEEWS, one of the nation's best law school exam-writing courses, we'd like to ask you a few questions about bar exam writing vs. law school exam writing. First, in general, is there a significant difference between the two? If so, what are the differences? If not, what are the similarities?
Miller: I tell my students that lawyers are nitpicky, more nitpicky than law professors. I want them to learn to be nitpicky, which will amuse their professors. So forgive me, as a onetime practicing lawyer, if I nitpick as a preface to your queries.
Frankly, I never think of LEEWS as "one of the best." As far as I'm concerned, and most of the well over 100,000 law students I've instructed over the years, I suspect, and Planet Law School, there's LEEWS, and then there's the same 'ol, same 'ol IRAC-plus-helpful-hints that everyone else instructs, that's been out there for decades and, while helpful given the ignorance an entering law student brings to the problem of law exam writing and preparation, has never assisted more than handful write "A" exams.
Respecting writing bar hypothetical-type essays versus law school, overall they are similar exercises. There are fact patterns -- so-called "hypotheticals," as they are made-up or imaginary scenarios. The examinee is expected to know the law necessary to resolve issues -- legal problems requiring resolution. Then apply that law in an analytic process to predict a legal outcome.
However, there are important differences.
On the bar, the examinee must draw from many legal areas of knowledge, generally more than twenty -- corporations law, bankruptcy, wills and estates, property, domestic relations, etc. On a law school exam, of course, only the subject matter of the single course will be tested.
Very, very rarely, two chummy law professors who instruct the same section of students in first year at a given school might give a joint exam. Say torts/contracts. Then a student would have to draw from at two areas of knowledge. But that is highly unusual.
Bar exam fact patterns often are pastiches of facts lifted from leading cases that introduce recent developments in law somewhat unique to the state. Law school hypos are more the product of a professor's imagination, although often they have their basis in actual events. Thus, we've had Lewinsky and Enron hypotheticals.
Liosi: Those must have been fun!
Miller: Hunh! I don't think law exams are fun for most students, however savory the fact pattern. But the exams ARE a game. And games can be fun, if you know the rules and have the skills to play well.
Liosi: Interesting.
Miller: The only thing more problematic about a bar exam essay is that you may be required to bring several areas of legal knowledge to bear on a single, usually lengthy fact pattern, versus just one on the entire law school exam.
For example, on a bar exam you might have to draw from agency, property, contracts, and possibly some other legal discipline while addressing a single exercise. However, the separate legal areas will typically be separated out in distinct numbered questions at the end, and will appear in separate paragraphs in the hypothetical. So really it's not that big a problem. It's just different areas of legal knowledge tested separately under the tent of one fact pattern.
Beyond this there are several differences between bar and law school essay exercises. In every aspect they redound to the benefit of the examinee. The bar essay is a much more predictable exercise.
First, bar examiners are serious. No attempts at familiarity with the examinee. None of the ha, ha character names in the hypos, like "Imagine Miss Manners had occasion to tell Mr. Rude ..." You're not going to get quirky silly questions like, "Imagine you're a giraffe who just learned tort law." Bar examiners understand that passing the bar is serious business and treat the examinee accordingly.
Liosi: Yes, I can remember many an essay with funny names. Many a quirky instruction.
Miller: Not that taking a law school exam isn't also serious business. But law professors often adopt a posture of familiarity. Probably to mitigate the circumstance that the exam is befuddling to their students.
A bar exercise is never going to call for the so-called "policy analysis" aspects that some few law professors want to see. Far fewer professors, I may note, than the policy-oriented tenor of so many law classrooms would suggest. The bar examiner isn't interested in what the examinee thinks the law of California should or could be.
The questions that follow bar hypotheticals tend to be more straightforward than the many variations that may spring from the mischievous minds of law professors. You might get something open-ended like "Discuss the legal issues raised in the foregoing fact pattern." But law students are familiar with this kind of question.
Generally on the bar, you'll see a more pointed query like "Who should prevail?," "How should the motion be decided?" You won't get something cryptic and paralyzing like "Draft a set of jury instructions to guide deliberations respecting the foregoing facts." You won't even get something like "Compare the holding in the case of X versus that in case Y." You certainly won't get anything like the following question posed by a professor at Duke in wills and estates that constituted an entire two-hour exam -- "The words 'if not, then' in the context of the Rule Against Perpetuities. ... What do you have to say about that?" Pretty crazy. Addressing it requires kind of a graduate level understanding of LEEWS.
Liosi: I'd say! I wouldn't want to tackle that one.
Miller: The bar exam is conclusion-oriented, but analysis still must control, especially in California. Facts in essays are straightforward. If you know the law of the state, particularly recent decisions of the highest court, analysis should proceed in a relatively straightforward manner to a right or wrong answer. Bar examiners will typically test knowledge of important developments in recent state cases, as they don't want someone who prepared for the Arizona bar to be able to waltz in and handle an exercise on the California bar.
This contrasts with law school where professors want arguments on both sides of issues, facts tend to be somewhat ambiguous, policy aspects can enter in, and the outcome can go one way or the other depending upon emphasis, much as two learned appeals courts can reach contrary outcomes on the same law and facts.
Law students, however, should know that although their professors typically say, "There is no correct answer," they likely have a preferred outcome in mind. Professors are unlikely to develop a model response without coming to some conclusion, at least a notion. They naturally think that their analysis is correct, so their outcome or notion is favored.
Whether on a law school or bar exam, much as a lawyer in a courtroom is loathe to venture an emphatic position that might conflict with the view of the judge he or she is before, unless absolutely sure of her position, a bar or law school examinee should avoid being emphatic as to the conclusion.
The lawyer in a courtroom will tend to waffle. He'll say, "If it please the court, ..." "May I humbly submit, ..." So in stating a conclusion, law school or bar, the examinee is best advised to waffle. She should preface the conclusion with such lawyerlike preambles as, "It would seem, ..." "On balance, ..." "In all probability, ..."
Nothing is lost. You still have a conclusion. But in law school in particular you mitigate any bias the professor may have respecting the "correct" answer.
This having been noted, invariably on a bar exam the examiner wants the conclusion stated at the outset. The "C" of IRAC moves to the top. The conclusion on a bar exam counts. It gets a checkmark. It is indicative of whether the examinee's analysis is on target.
Often law professors want the conclusion stated at the outset, which contradicts their insistence that "the conclusion is unimportant." I think they just recall the format mandated when they took the bar exam. It may have been the first time they ever got formal instruction on how to present an exam response. It certainly was for me.
However, the conclusion should not be stated prior to completing analysis. The examinee may have a conclusion in mind after mentally thinking through the problem, but that conclusion should now be set aside. The best thinking occurs while writing out the analysis. Bar exams are still written, I believe, while the majority of law exams are typed.
You should always type if that is an option, as you can type much faster than you write. However, many law students opt to write. I think if you aren't sure what you're doing, you don't like the clarity of typing.

Having completed the analysis, come back and plug in the conclusion, which may have changed. Literally leave several spaces blank, introduce the discussion, which is the analysis, then come back and plug in the conclusion at the beginning.
On law schools exams, unless expressly instructed otherwise, the conclusion goes at the end, reflecting its unimportance.
If you enter the conclusion at the end, not only are you unlikely to prejudge the analysis, which in turn tends to lead to conclusory statements, but you are less likely to overstate the conclusion by interjecting aspects that are properly part of the analysis. Indeed, you can now simply point the examiner to that aspect of the analysis that you deem key or dispositive.
This is another way to mitigate bias, should your conclusion differ from what the examiner deems to be the correct answer. The examiner thinks, "I disagree with your conclusion, but I see you focused on the proper aspect of analysis." Since there IS a correct answer on the bar, this is more important in law school when the examiner wants the conclusion at the outset.
Liosi: Wow! You've surely given this a lot of thought. From my estimation and based on my experience, you're right on target. I passed the bar on my first attempt, some thanks to having attended your program many years ago, you may recall. But this would have helped. I'm surprised you don't do a bar exam version of LEEWS.
Miller: I gained the initial insights that led to the development of LEEWS while doing some bar tutoring for the Bar Association of the City of New York. Minority law graduates getting ready for the essay portion of the New York bar. And I've retained some interest. From time to time law graduates do LEEWS for the bar. Gives them a whole new perspective and renewed confidence. But my focus has remained on law school, particularly first year.
Liosi: Any thoughts on the low pass rate on California's Attorney Examination, which was 28% the last bar, and which features nothing but writing? If you think the low pass-rate is motivated by market protection, due to 207,000 California attorneys, what, then, in the face of such state bar motivation, can an attorney candidate do to improve their bar-exam writing skills? Additionally, why do you think an attorney's writing skills, all of whom presumably practiced law for 5 years in another jurisdiction, are poor by California bar exam standards?
Miller: I think market protection is definitely a likely factor. I suspect California attorneys would also have a low pass rate if required to take this exam. So the out-of-state attorney's writing skills are not necessarily "poor" by California standards. It's just that the bar -- excuse the pun -- in terms of what is expected is probably set somewhat higher than it is for the bar exam right out of law school, and writing skills haven't improved by dint of being out in practice.
I think lawyers in practice have likely gotten better at analysis, which isn't instructed very well in law school. Normally you learn the nitpicky lawyer thinking only when you get out in practice and go up against other lawyers who are thinking very closely about the law and facts on the other side. You're also challenged in your thinking by senior attorneys, if you are fortunate enough to be in a firm, and also by judges.
But how well you present on paper? ... There you would need the criticism of an able senior attorney to make much progress.
I think it is generally accepted that most lawyers don't write well. They didn't learn it in law school. They don't learn it in the hastily patched together briefs and other legal papers lawyers submit in practice. Often lawyers merely fill in the blanks in writings prepared by others that are kept on file.
Liosi: So how did you develop expertise in writing? Or were you always good at it?
Miller: I was pretty good coming out of college in the sense of being a "good writer," although I remember my first exercise in freshman English at Yale being returned to me with the notation in red at the top, "This is half a paper!"
Whoa! That was a shock to a seventeen year old who had been a top student at Los Angeles High School.
Liosi: You're an Angeleno?! Didn't know that.
Miller: Sort of. Came out from the east with my family at age 13, then went back for college and stayed. But those are formative years. Having been a UCLA fan in high school, I rooted against the Trojans in the recent championship game. If you grow up in LA, you're either a UCLA or USC fan.
Anyway, I humbly submitted my half paper to one of my roommate's who had gone to Choate. Elite prep school in Connecticut. He's still a good friend, and he happily tore apart my paper. Then, as a junior, I had the benefit of getting critiqued by Robert Penn Warren, the well known and now deceased author. And by senior year, I was writing a novel under the tutelage of none other than the even more famous author, John Hersey, who was a master of one of the Yale residential colleges.
Liosi: Wow! Heavy hitters. That sounds wonderful. Did you finish the novel?
Miller: (Laughs.) No, never, ... and I won't. But I have what I wrote. Strictly sophomoric effort.
Liosi: What was it about?
Miller: (Chuckles.) Never mind. Some things are best left behind.
Liosi: Okay. So clearly you had a lot of writing instruction and experience prior to going to law school. Yale, also, if I'm not mistaken.
Miller: Yes, Yale again. Guess I didn't mind the lousy weather in New Haven. But legal writing is different. It's a myth that "good writers" do well in law school.
I think most important I had the benefit of over two years writing appellate briefs in the appellate division of the Brooklyn District attorney's office. That's where they stick a Yale grad. Initially I received significant oversight and did a lot of revising. My writing samples helped me make the unusual jump from a local DA office to the higher echelon US Attorney's office.
Liosi: Where was that?
Miller: Eastern district of New York, civil division. Includes Brooklyn, Long Island, Queens, Staten Island, and possibly Weschester County. It's been many years. Southern district may have Westchester County, but mostly just Manhattan.
But let's get back to your question. I think you wanted to know what can be done to improve attorneys' writing.
Liosi: Exactly.
Miller: Well. I suppose whoever reads this isn't really interested in my personal history. Although I'm always happy to talk about myself.
Respecting what can be done about attorneys' writing -- I don't think a lot is necessary where this California bar exam is concerned. The format I instruct for law students also applies to the bar. It should also serve a practicing attorney.
Open with a statement, a preamble of relevant law, just like you see in judicial opinions, ... proceed to relevant analysis. Roughly one paragraph per issue.
I think the thing I do different is I've developed this format called "ugly but effective" that enables students to greatly tighten up the loosely structured rambling that characterizes most writing. It's pretty unique and effective. I say it makes a good writer better, and a poor writer good enough.
Liosi: I like that last sentence. While your course is undoubtedly popular among law students, we were wondering whether an attorney candidate can benefit from your course. But I guess you've answered that.
Miller: There'd be a lot in my program not relevant to an attorney. They wouldn't be interested in 2-4 line briefing and how to take no more than a half page of notes per class hour. Maybe two hours of irrelevant stuff. But how to break down fact patterns to reveal relevant issues, how to present analysis concisely. That would help. Presumably they would pick up my instruction on analysis faster.
I've thought of doing a program for attorneys. We would process actual cases via the LEEWS method.
Liosi: Why haven't you?
Miller: Not ambitious enough, I guess.
Liosi: You mentioned 2-4 line case briefing. That also sounds interesting. Kind of radical. Perhaps a topic for another day. Actually, we ran that Miller article a while back.
Miller: Cuts to the heart of what's wrong in law school instruction. Requires skill at analysis, which most law students never acquire.
Liosi: You can answer, "I'd rather not answer," but do you have any thoughts about Stanford's ex-law school Dean who failed to pass the last California bar exam?
Miller: I'm never afraid to answer. I don't plan to run for anything. Although I knew George Bush somewhat in college. Met his dad, too. W was a year ahead of me. I was certainly smarter and more capable than him then. And I was surely more productive and competent in the years from college to 40. So when it comes to running the Free World, ... But maybe we shouldn't go there.
Liosi: Hm-m. Yes. But maybe another time. But how about the Stanford dean? Any thoughts?
Miller: I don't know him, or her. Don't know anything about him/her not passing the bar. Sounds embarrassing. Pretty awful to have to subject oneself to a bar exam like a recent law graduate after you've been the dean of Stanford's law school.
I'm tempted to say that goes to show that Stanford is overrated. (Laughs.) But that would be unkind, right?
Let's just say that passing a bar exam, although requiring reasonable intelligence, mostly is about taking it seriously, having reasonable skill at exam writing, and humbly putting in the time and sweat to master a lot of black letter law that will fly out of your head as soon as you finish the exam.
I'm sure the good dean was smart enough, but perhaps not humble enough. Probably didn't put in the requisite sweat and time preparing.
Bet he/she will pass the next time.
Liosi: One more question, a personal one if you don't mind. Your first name is Wentworth. Pretty unusual. There's an actor, Wentworth Miller, the lead in a new series on FOX, Prison Break. He's up for a Golden Globe. Also, I think he was in The Human Stain. Any relation?
Miller: So glad you asked! Always looking to slip that little aspect in.
Wentworth Miller is my son. I'm Wentworth, Jr. He's the third. My father, same name of course, passed away many years ago, unfortunately.
I'm very proud of "Went," as both he and I are normally known. My entire family, and it's a big one, is very excited. We'll be glued to the tube January 16th.
Of course he isn't quite as handsome as the dad. (Chuckles.) But he's very talented. I'm thinking I may be able to retire before long if things continue to progress.
Anyone reading this, ... Be sure to catch Prison Break when it returns on FOX in late March. Great show, if somewhat violent.
Liosi: Pretty cool, Mr. Wentworth Miller. Pretty cool, indeed. I think our readers will find this interview both edifying and interesting. One of our journal's best!

To find out more about Mr. Miller and his course, visit www.LEEWS.com.

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There are differences. Marshall had a penchant for strippers, and the court record before the justices is one of poverty, greed, sex and family rivalry.
A federal bankruptcy judge sided with Smith in the fight over her late husband's estate, awarding her $474 million. That was reduced to about $89 million by a federal district judge, and then thrown out altogether by a federal appeals court.
The issue before the high court is one only lawyers would love: When may federal courts hear claims that involve state probate proceedings? Smith lost in Texas state courts, which found that E. Pierce Marshall was the sole heir to his father's estate.
The Bush administration's filings in the case are technical. Without getting into the details of the family squabble, Solicitor General Paul Clement said that the justices should protect federal court jurisdiction in disputes.
Filings are due next month by groups backing E. Pierce Marshall.

From Rominger Legal.

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