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

By Steve Liosi, Esq.,
Archived Article March 2008....

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 July 2006 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 you’re analysis doesn’t make it to the page – it stays in your head. 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, Director of Product Development for 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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Lessons From The February Bar Exam

By Paul Pfau, Esq

Archived Article March 2008......

The early word from may of those who have just taken the February bar exam confirms some old lessons that continue to be emphasized by the Committee of Bar Examiners as well as suggesting some potential new ones for each of the three sections of the test. 

Having specialized in customizing programs for bar applicants for nearly 29 years, one over-riding lesson, however, should never be lost:  Those whom learn from these lessons and develop the kinds of skills necessary to succeed on the bar as a “problem-solving speed exam” typically outdistance their more generically prepared competition.  In other words, learn to “study smart” in preparing for an exam that continues to place a premium on solving complex problems under strict time conditions.

On the essay, for example, many issues continue to “cluster” from traditionally familiar fact patterns.  The lineup fact pattern from the February 2006 criminal procedure problem undoubtedly tested one such issue cluster (1) whether it was unnecessarily suggestive and in violation of due process, whether there was a right to counsel violation, the “negative” issue of self-incrimination (to be dismissed because line-ups are not testimonial), and a relatively subtle 4th- Amendment- fruit- of- the- poisonous- tree issue in the event the line-up suspect was unlawfully detained so that his identification could be suppressed.  Similarly, with the torts products liability question, the facts involving the absence of a manufacturing defect likely triggered, among others, the more remote issue clusters of battery and negligent misrepresentation.  Similar instances of issue clusters from this exam included conflicts of interest with professional responsibility, in personam jurisdiction, res judicata and collateral estoppel with civil procedure, waste and negligence with real property, procedural and substantive due process in addition to equal protection and eminent domain with a constitutional law zoning fact pattern, and so on.

In addition, subjects that cross-over on the essay seem to be increasing.  Historically, since the reduction in the total number of essays from 12 to the current 6 many years ago, a total of 8 to 9 subjects were tested.  On this bar exam, the consensus seems to put the number of total subjects closer to 11 - with criminal procedure, perhaps crimes and evidence, civil procedure, real property, constitutional law, remedies, wills, community property, contracts, and professional responsibility being tested.  Once again, by the way, professional responsibility remains the most consistently testes subject - showing up as a part of a contracts cross-over and on the performance exam.

Finally, the essay fact patterns continue to be perceived by some as deceptively easy, while historically many of the questions contain what I would describe as “deal breaker” issues (translation: you do not want to miss them).  Here, it is important to note that the most significantly and substantively important word in the essay instructions is “facts”.  In other words, the candidates’ ability, under the stress of time, to sufficiently improve his reading comprehension and be able to differentiate between what the instructions describe as “material vs. immaterial” facts; in other words, dismissing on paper (not mentally) what we might term a “negative issue”, such as the “self-incrimination” issue in the line-up fact pattern (noted above).  Again, this is an important lesson in being able to separate yourself from your competition by demonstrating your more nuanced and comprehensive knowledge of a particular subject.

Lessons form the February 2006 performance test continue to emphasize the importance of learning how to organize.  As with the essay, candidates should pay heed to the Examiner’s instructions with specifically focus on spending the first 90 minutes or so (of the 180 minutes available) on this most important function.  Poorly written answers do not reflect this capability, and it is equally key to remember that it is important to be familiar with the different kinds of formats that can make up the performance exam.  On the February bar, for example, the memo format was tested – still, the most tested of any of the different formats – and placed an emphasis on the candidate understanding the very formal organizational structure required.  Another lesson is to remember that cases-within-cases in the library section of the PT are potentially relevant, so that if there are only two cases significantly represented (as apparently was the case with PT B), to pay attention to them as well.

Lessons from the multi-state section continue to emphasize the importance, like the essay and performance exam, of learning to “listen” to the subtle variables engineered into the fact patterns.  Interestingly, many of the candidates noted what they believed to be a trend to more “one-to-one” question and answer sets.  In other words, a shorter fact pattern with a single question, rather than the more traditionally longer fact pattern with multiple questions branching from it.  In addition, many continued to feel that there was a noticeable difference between the difficulty of the morning and afternoon session’s questions.

In all, the clear consensus continues to be that the bar is a difficult three day exam – but that the prize will go to those candidates who learn from lessons regularly engineered onto each of its six three hour sessions:  Develop the skills that will more precisely produce the test-taking standards required for each of the three sections of the bar at a statewide level.  Adopt the lesson from “Seabiscuit” in learning more precisely how to run the kind of race the bar has become – and not from Bill Murray’s character in “Groundhog Day, who, sadly, had to repeat his lessons before learning from them.  Be positive and have faith in yourself! You can do it!

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