Failing Up: 11 Practical Tips On How to Succeed When You Fail the Bar Exam

By Christie Asselin
Archived Article January 2009....

For the thousands of applicants who were not successful on the Bar the first time, we prefer to sweep that fact under the rug, and then push some heavy furniture onto it to really seal the deal. But I will come out of the closet, boldly.  I failed the California Bar Exam.  Ta da!  I say this with the disclaimer that I am bright, capable, and I love the law.  Furthermore, I am in excellent company. Some of our culture’s most esteemed lawyers who did not pass the Bar Exam on at least on occasion include:

• Jerry Brown failed the California Bar Exam, California Attorney General and former Governor of California.
• Kathleen Sullivan failed the California Bar Exam, former Dean of Stanford Law School and renowned constitutional law scholar.
• Deceased John F. Kennedy Jr., failed the New York Bar Exam, journalist and Assistant District Attorney, New York City.

Christie Asselin

What makes these individuals successful in the end is that they did not give up.  If you did not pass the Bar Exam, here are some tips on how to successfully transition to the next stage of your career because yes, you will move on.

1.)  Take time to gear up for the next step.

For a lot of applicants, the third time really is the charm.  This is likely because after not passing, many applicants are irritated/angry/panicked about failing the Bar to begin with and are irritated/angry/panicked when they take the Bar the second time.  After I did not pass the Bar Exam on my second attempt, I took some serious time off from studying.  During that time, I found a job, went to a slew of Padres games, traveled a bit and saw so much of my friends that they may have been glad I had to go back to studying! 

I do not suggest that everyone needs to take a large amount of time off from studying.  A colleague of mine took two weeks to recover and went on to pass it.  Conversely, for me, an extended period of time was really critical.  Determine what you need to do.  The Bar Exam will always be there. 

2.) Determine what went wrong with your test preparation.

Be honest about what went wrong.  Experts say that if you find yourself in credit card debt, adding up and facing your debt is the first step to getting out of it.  In the same way, looking at your Bar Exam point debt is an important first step.  There are many reasons for not passing the Bar Exam, and each is unique. However there are some common themes to the stories of my colleagues who did not pass on the first attempt. 

Some applicants do not fully dedicate themselves to studying.  For example, family obligations and life can really interfere with studying for the exam.  By the end of law school, many of my colleagues were married, and some had children.  It is unsurprising that many new mothers are unable to effectively study for the Bar while at the same time raising a family.  During that tug of war, the kids win out!

For other applicants, their study approach was off.  For example, my friend Jason, 30, a current family law attorney whose sense of humor kept me smiling even up until Hour 4 of Bar Bri lectures, focused too much of his energy on preparing for the MBE.   On his successful, second attempt, he focused most of his time on the essay part of the exam and had faith that his MBE knowledge would kick in when needed. 

Unlike many other Bar Exams, the California Bar Exam requires more than just showing up to classes and practice exams.  The competition is tough in this state.  Be honest with yourself and take affirmative steps to figure out what went wrong. 

3.)  Read your exam answers.

Just as Socrates said that the unexamined life is not worth living, an unexamined past Bar answer is not worth re-answering.  It is painful but necessary to read those answers again.  Then, compare your answers to the published answers.  The Examiners can test the same issues in back to back administrations, especially if it was a question that a lot of applicants failed.  Hiring somebody else to read them for you will not have the same effect but may be helpful.  You are taking the exam.  You need to know your strengths and weaknesses.  So, read up! 

4.) How to pay the bills. 

If you have a job, and the firm or organization is depending on you to pass, be honest with your Supervising Attorney.  One of my best friends from law school, Heather, 28, had always been an excellent student.  She was floored when she did not pass the Bar by five points.  She bravely wrote an email to her S.A. stating that she was fully committed to her job, loved it, and would pass the Bar exam on her next attempt.  In an effort of true dedication, she also stated that she would be happy to work for free while she prepared.  Her S.A. responded that they would be pleased to keep her on staff as a paid Rule 9 Intern.

If you don’t have a job, pick up something part-time, if that is feasible.  For many applicants, loan companies are chomping at the bit for their monthly payments.  However, if it is possible to work less than full-time, this is optimal.  Another attorney friend of mine, Stacey, 27 worked part-time at Nordstrom, while she prepared for the California Bar after passing the New York Bar Exam.  Despite having passed the New York Bar Exam, and having a strong background in Intellectual Property, she had trouble finding a job in the legal industry.  Contrary to popular belief, a J.D. does not always prove to be quite as flexible as people say, especially if you are preparing for the Bar Exam.  Ushering in some creativity, she made a few phone calls, and landed a fairly lucrative and really fun job at Nordstrom. 

Obviously, it is best to stay in the deep end of the legal community, and find a law clerking job.  If you worked as an Intern or Law Clerk at a firm in law school, contact your former S.A. about a job, or get in touch with your law school’s Career Services office.  Get your name out there in the community.  In these less than exceptional economic times, however, be prepared for something less lawyerly if necessary.  Worrying about income is an emotional liability that can be a huge distraction while you study. 

5.)  How to pay the bills and keep your eye on the goal.

If you have to work full time, or even part-time, your schedule is really critical.  Break out your calendar and plan away.  I lived and breathed my schedule during the weeks before the Bar Exam.  I worked from about 7:00 to 3:30, took an hour off to work out, and then studied or had class until 9 or 10.  During my lunch breaks, while my energy was still high, I graded exam answers (and of course compared my answers to the published answers, see Tip #3).  This time was not fun, but it was necessary.  In fact, in balancing both working and studying in this manner, you will really see what you are made of.

6.) Rely on your long-term memory: It’s in there!

My dance teacher once told me that it takes years to lose muscle flexibility.  It has been about 7 years since I took dance classes and I can still do a split.  The good news is that your brain works the same way.  As my friend Jason described above, your brain has stored a ton of information from studying for the last test.  It is in there.  Have faith that it remained.

7.) Determine if this is the right career path for you. 

If your heart is not into practicing law, save your money, time, and sanity and find another career.  Many attorneys burn out at some point in their career so shed your sheep skin if you are so inclined and find something you love to do. 

Before taking that step, be aware of a few things.  First, if you leave the practice, you will have a difficult, albeit not impossible, path back to the law.  There seems to be a stigma with attorneys who leave the law that will likely make you less marketable if you decide to come back.  Second, if you have law school loans, be aware that most entry level jobs in just about any field may not pay you enough when you take into account your loan payments.  Deferment and forbearance might be options for you, but don’t overlook capitalized interest.  The bottom line is follow your dreams but take a managed risk because as a law school grad three things are now certain: death, taxes and student loans.

8.) Consider a different state.

The California Bar exam is notoriously difficult to pass (37%-57% 2007 pass rate). If you’ve always wanted to live near the slopes in Park City, try Utah (77% - 82% 2007 pass rate).  You could set up a law practice involving natural energy in a place like Iowa (67%-88% 2007 pass rate) or Indiana (70% - 79% pass rate).  Or, you could live in the Emerald City and work for Microsoft in the state of Washington (77%-85% 2007 pass rate). 

9.)  Be grateful.

It is so easy to be spiteful that you have to jump through yet another hoop to practice law.  After 4 years of college, the LSAT, 3 years of law school where our professors alternated between “scaring” “working” and “boring” us to death, 10 weeks of preparation and 3 days of testing, you may feel angry that you are forced through another hoop.  Through this marathon, take account of the people who cheered you on from the sideline.  I, for one, saw new sides of my personality that I hope never to see again! But, my cheerleaders never put down their pom poms.  Take account of your support network and listen when they are telling you that you can pass.

10.) Try, try again, and really believe that you can pass.

Really successful people always believe in themselves.  Try affirmations, hypnosis, or run of the mill therapy. Find a way to genuinely believe in you and commit to this goal.  Recognize that even the most self-confident person does experience some self-doubt.  As author and personal finance expert Barbara Stanny states “Feel the fear.  Have the doubt.  Go for it anyway.” 

11.)  Take this advice and every other piece of advice with a grain of salt.

Like many major events in life, you will be receiving a lot of unsolicited advice from an enormous amount of people.  For every person who tried to calm my nerves by informing me that the California Bar is the most difficult Bar exam to pass because “the law is the hardest” or told me that J.F.K. Jr. failed the New York Bar Exam “like five or six times”, you will get the same amount of equally unfounded or inapplicable advice.  You have the answer as to why you did not pass.  Listen to yourself, and tune out everyone else. 

The Bar Exam is indeed a marathon.  Some people race to the finish line in record time.  Others stop for water breaks or walk halfway.  Don’t lose heart in your pursuit and keep in mind the following quote from running coach Mark Will-Weber, “A runner is someone who runs; it’s that simple--and that grand.  Be that someone.  Be yourself.  Be your own runner.”  

[PUBLISHER’S NOTE: Actually, “the law is not the hardest”, but the standards are. Ultimately, the California bar exam is a thought-process test. In the words of my friend Paul Pfau, “the California bar exam is a problem-solving speed exam”. Most candidates who pass on their first attempt brought a superior set of analytical skills to the exam in the form of analytical thought and analytically writing. Ultimately, we have the nation’s lowest pass rate because the written portion of the exam is so harshly graded.

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FEATURED MODEL ANSWER FROM FLEMING’S FUNDAMENTALS OF LAW: Model Answer to Essay 4 of the July 2008 California Bar Exam

Archived Article January 2009......

1.     CAN BARRY SUE SALLY BEFORE MAY 25?

Uniform Commercial Code - Sale Of Goods

The contract between Barry and Sally for the sale of the Phaeton car is covered by the provisions of the Uniform Commercial Code (UCC) because it is a contract for the sale of goods. The facts stipulate that it is a valid written contract, meaning that there are no formation problems.

Anticipatory Repudiation

The UCC provides that when a party to a contract repudiates it before the scheduled date of performance, the non-breaching party may immediately sue for breach of contract and pursue any available remedies.

The facts state that on May 10th, 15 days before the contract’s date of performance, Sally informed Barry that she was breaching the agreement by selling the Phaeton to a purchaser in Italy. Sally’s actions constitute a repudiation of the contract.

Barry can sue Sally before May 25th for breach of contract under the rule of anticipatory repudiation.

2.    BARRY’S PROVISIONAL REMEDIES

Barry should ask the court for the equitable remedies of a temporary restraining order (TRO) and a preliminary injunction to prevent Sally from delivering the Phaeton to the shipping company, pending the outcome of a trial on the merits of his claim.

Temporary Restraining Order

A temporary restraining order is an emergency order by an equity court mandating that a defendant do or desist from doing something. Because Sally is planning to ship the Phaeton to Italy within a week, Barry should seek a TRO to stop her.

Substantive Requirements

The purpose of a TRO is to preserve the status quo pending the issuance or denial of a preliminary injunction. The plaintiff must prove that he will suffer irreparable harm if the TRO is not granted.

Barry will argue that the TRO is necessary to preserve the status quo so that Sally will remain the owner of the car and be able to sell it to him.

He will allege that he will also suffer irreparable harm. Irreparable harm is serious harm for which money damages are not adequate compensation. Barry will prove that unless the court issues the TRO, he will never be able to purchase the Phaeton because Sally will ship it out of the jurisdiction to a foreign country. If this happens, the equity court will be unable to enforce any order of specific performance that it might later issue. Barry will likely prove that he meets these substantive requirements for a TRO.

Procedural Requirements

There are also procedural requirements for a TRO. The equity court may issue the TRO ex parte (without notice to the other party) if Barry can establish by affidavit that he attempted to give Sally notice of the hearing. TROs remain in effect for up to ten days, and the court may extend the order for an additional ten days on a showing of good cause. The plaintiff is required to post a bond to cover any losses the defendant may suffer if the court later rules in defendant’s favor. If Barry complies with these procedural requirements, the equity court is likely to grant the TRO.

Preliminary Injunction

Barry will also ask for a preliminary injunction. Like the TRO, a preliminary injunction is an equitable remedy designed to preserve the status quo pending a trial on the merits of the plaintiff’s claim. The major difference is that the defendant must be given notice and an opportunity to be heard before the preliminary injunction is issued. Barry will also be required to post an injunction bond as a condition of the preliminary injunction.

To qualify for a preliminary injunction, Barry must establish the following substantive requirements: irreparable harm, likelihood of success of the merits, balance of hardships in his favor, and granting of the order will be in the public interest.

Irreparable Harm

As stated in the TRO discussion, supra, Barry will suffer irreparable harm if the preliminary injunction is not granted.

Likelihood Of Success On The Merits

Barry must prove that he will likely succeed on the merits when the case is finally resolved. He will show that the parties have a valid contract for the sale of the car, he is willing and able to purchase the car, and Sally has no legal reason for breaching the contract. For these reasons, he will establish that he will likely prevail on the merits in his breach of contract suit against Sally.

Balancing Of Hardships

Barry must also establish that when the hardships of the parties are balanced, the equities favor him. He will show that unless the preliminary injunction is granted, Sally will sell the car to a buyer in Italy, thereby depriving Barry of the chance to ever purchase this very rare car, one of only two in existence. Sally’s hardship is that if she ultimately prevails, her sale of the Phaeton to another buyer will be delayed or cancelled. But because her goal is to receive money from the sale, damages will be adequate to compensate her for any loss resulting from the delay or cancellation.

In conclusion, a balancing of the hardships favors Barry, as he will lose the chance of ever buying a similar Phaeton if the preliminary injunction is not granted.

Public Interest

This litigation is between private parties and does not involve any important public concern other than a general public interest in having parties perform valid agreements and not be able to violate contractual promises with impunity.

The equity court is likely to grant Barry’s request for a preliminary injunction preventing Sally from shipping the car to Italy pending the outcome of the trial on the merits.

3.    CAN BARRY OBTAIN THE PHAETON BY SPECIFIC PERFORMANCE OR REPLEVIN?

Specific Performance

Specific performance is an equitable remedy whereby the equity court orders the breaching party to perform the contract. Barry will ask the equity court to order Sally to sell the Phaeton to him. To qualify for specific performance, Barry will have to prove a number of requirements.

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