The-CLEO-Bar-Blog

Did You Pass?

2010-07-30T10:37:00.000-07:00

The Number One Question of This Year For You Will Be, "Did You Pass?" How do you answer this simply, loaded question? Do you reply with a basic yes or no? Or, is it yes or no, with explanation? Do you ask the person, "why do you want to know?" Or do you not indulge the question at all, and just bypass it, with laughter, a grin, or awkward grimace?

Let us begin with a question to the person asking the question. Is it bad manners to ask at all? I'll answer that. It is. It is bad manners to ask someone a question that you know could have a not-so-good ending. But, people ask it anyway, because in some circles it is supposed to be expected that you can ask someone about the bar exam. I mean you did graduate from law school and you did take the bar examination. Some would look at it as part of a general conversation. So, guess what. Your gonna have to answer it.

1. Answer the question (with no explanation). Yes or No. Now the conversation is over and done with (which it never is).

2. Answer the question (with explanation). Yes or No. Yes, with an explanation regarding plans for the future. Yes, I passed and I have a job. Yes, I passed and now I need a job. Yes, I passed, and I am placing the license in the drawer for a year, two years, or forever.

No, with plans to take the examination again. No, I did not pass; I will take the exam again. No, I did not pass, I will never take the exam again. No, I did not pass, I will take a break from bar examination tests for a year.

3. Probably the best way to answer the question regarding the bar exam is to acknowledge that you passed or that you did not pass, supply some cursory thought that really has no meaning. Allow the person to be happy or sympathetic for you, then move on to the next question.

4. Remember the Good, the Bad, and the Ugly. Regardless of the outcome of your exam, some people will feel very happy for you (even if you are not successful). Those people will paint a nice picture for you about life, and make you feel hopeful when you leave them.

The bad will say something similar to who they really are. It will just be something awful, like do you think you can really pass it. Or, do you really think you can be a good lawyer. It will be something ridiculous like that. How should you handle that? Cut 'em (not with a knife). Just cut that person loose from your life. Quickly. Don't explain. Don't give them an opportunity to say something to change your mind. Let them go.

The ugly are just a little bit more crazed than the bad. The difference between bad and ugly is this: bad people say things to make you feel bad; ugly people do things to interfere with your life so that you never move forward. The word, again, is interfere. You do not have a chance. So, watch the person that is trying to ask you to do things to create havoc in your life if you have to prepare for the bar exam again. Then run from them. Move, give them a bad e-mail address, Facebook reference, or something. Keep running. These people never let up. Ever. You got it? Good.

5. If you need to reach me, please do so at TheBarExamCoach@aol.com. The best to all of you.

Prof. Smith

The Bar Examination Is Over - - That Is, For Now.

2010-07-29T09:21:00.000-07:00

Win, Lose, or Draw, The Bar Exam Has Run Its Course And Most Of You Are Coming Down From A Ten Week Period of Testing, Reviewing, Memorizing, and Working Like The Lawyers You Want To Be In The Future.

So, what is next? What do we do while we wait for the bar exam results? Here are a few things to contemplate after you have taken three to ten days off from your personal relationship with the bar examination.

1. Re-take The Bar Exam. Hold up. Wait one minute. Stop reading the first sentence because it does say what you think it says - - re-take the exam. If your jurisdiction allowed you to take the questions to the exam home with you, then you should count yourself as lucky. Why? Well, you get to actually write out answers to questions and with the books right there with you.

I did it. I returned home and answered the questions. I sat down with a yellow pad and wrote out the answers. I know. That was me. That was then. Just because I did it does not mean that you must do it. You are correct on all counts. Correct or not, if you want to know how you did on the exam, and if you have the questions available, then take a seat within the next 14 days. Write out the answers.

2. Pack Up The Commercial Outlines. Pack up the materials, nicely, please. Take time to organize your work. The material does not have to be color coordinated and packed in tip-top shape, but loose notes should be stored in folders, write the names of subjects on the front of the box, and do not throw away the schedule and other tidbits of information received by the commercial course. Hold on. Change could be coming, but we do not yet know in what form.

3. Stop talking about the bar and reflect on the experience. It is time to deflate a little, and get away from the experience. I do not ask you to hide and deny the experience, or that it ever took place, but too much talk about it makes it still seem like the exam is still part of your here and now, but it is not. It is over. If someone brings it up, certainly you can discuss it. But I suggest that you do not begin every conversation with the bar exam. Let it rest for a while. The bar will return in a few short months. If you want to know how you feel about the exam, then write a reflective note to yourself by e-mail.

4. If you do not have a job, find one. I said, a job. I did not say, "the" job, or a legal job, but "a" job. Once you find a job, then you can look for "the" job. I don't want you to be confused about what you need and what you want. You need to eat, to have a place to sleep, to pay for a few bills. You want food that looks more like a feast than a meal, you want to sleep in a mansion (or, at least a five bedroom, three full baths, home), and you want to be able to pay your bills off, and not down (or, get them in control) within thirty (30) days.

Don't let other people deter you or beat you up because their job is "allegedly" bigger than your job. My job is to make the green. That's my job and no one else is supposed to ask me how I do it or care how I get it done. Stay out of my pocketbook unless you put money in my pocket. I never ask people what they do or what they are doing or show any indication about wanting to know who makes what. It's simple. No matter how much information I have about other people, their salaries, and their positions, all of "that stuff" belongs to them. I still have to fight the good fight for myself and my family. I do not allow anyone to intrude on how I earn a living, and I do not intrude on how others support their families. Sharing is one thing; tending to your own household's business is another.

5. Make A Plan After Results Are Posted. What will you do if you pass (will I take a second exam, do I have enough points to waive into another state, who will I tell and what will I say)? What will you do if you don't pass (will I take the exam immediately in February 2011; how will I study; will I sign up with the same commercial bar prep course (or, another course); will I sign up for a course, at all; when will I begin study for the next exam; what will I do if I have a job; how will I study).

A word on jobs. If you found a job that is not the job that you want, but the job that you need, keep in mind that may want to let that job go IF you do not pass the bar exam and need to take it again. The bar exam is easy (easier, let's say) with the person does not have a job that he or she must contend with five (5) days each week and 40 hours per week. But include the exam with five (5) days and 40 (or, more) hours, and it looks like a tragedy. A soap opera of some sort. If you are a smart person, you will find a job that works for you as soon as possible, and learn how to save all or most of your money just in case you get a surprise in November. If you have squirreled away enough money over five or six month period, there is no reason why you can't live without the extra 40 hours a week.

On the other hand, a forty (40) hour a week job makes you work harder IF you have to work and study for the February bar exam. It makes your time more valuable, and it makes you believe that you have to get it this time around, because you do not want to do it again in July 2011.

If you have already secured "the" job before graduating from law school, then you will have to work. You hope your boss will be kind and understanding, and not place a heavy workload on you. But don't expect it, or anything else from a boss or co-workers. If you get some time off or a lighter work load, that is good, but you are now on the other side of the law school experience. You are not a student anymore, and your employer may force you to tow the line. Be ready for it.

My last post for the July 2010 bar exam is tomorrow, July 30, 2010. The thought for tomorrow is, "How should you conduct yourself when the results are posted?"

Until tomorrow.

Day One In Review, On To Day Two . . . .

2010-07-27T11:09:00.000-07:00

After the First Day:

First, did you see anyone in the exam today that maybe got a little nervous. Maybe, they did not have a mantra, or a method to get through the problems. Try to sympathize and be thankful that you weren’t in that group. Game over for Day One.

What’s Next.

Dinner.

A nice, loving dinner, regardless of what your mind wants to whisper into your ear. You want to wait for dinner because you want to talk (just, a little) about the examination. You are excited; half of the test is over, and you want to share excitement, relief, etc., about it. Slow down. Try to have your main dinner earlier than later after the examination. Why? While you are running your mouth about all the excellent writing you did, you are going to tire soon, and fall asleep before you know it. I would rather you take a nap at 6:30 today, than talk a lot after class, get a late dinner and wake up Wednesday morning, or at 4:00 a.m., Wednesday morning without having a defined plan.

Have dinner now, make whatever phone calls you choose, take a walk, then nap for two or three hours. Upon waking, you can do a number of things. Look over a few concepts, if you like, watch something on television, listen to music, exercise, pack your bag for the next day, shop for lunch if you have not before.

Or, if you have done all of those things and feel comfortable about Day Two, then you can return to your nesting spot and dream about how to attack those long property and constitutional law questions. I want you to be well rested and well nourished for Day Two. I do not want you to be so talked out that you cut into the day’s food and sleep.

Preparing for the Second Day.

If you decide to take an early nap, and upon waking, want to look at the MBE or a few questions or a particular subject area, then do it. If you awake from your sleep and you do not want to look at the MBE or a few questions or a particular subject area, then don’t do it.

I chose to look at a few questions and even answered 17 or so, just to make certain that I would not forget how to place a round pencil in a round hole.

But whatever you decide, do not tell anyone what you are going to do, or why you are going to do it, just move forward on it according to your plan. You did not make a decision about how you were going to approach this two months, two weeks or even two days ago, just to get to the hotel and debate with someone about how you have decided to attack the bar exam.

It is not the kind of party where people can pick what you will wear, so don’t go and get all dressed for it on anyone's behalf, except your own.

The MBE – The Weak Day

Careful ladies and gentlemen - - but we get caught up in the circling of answers to questions, and after a while, during the exam, we remember why we like MBE questions better than essay questions. MBE questions are low on the interactive scale. We don’t have to draw any fancy pictures, or create any acronyms for a question. We don’t have to return to the facts and re-write them. We don’t have to do anything other than place a black mark in a circle.

A trick, we could teach the right pet to do as an April Fool's trick.

Let’s not be fooled.

You are going to have to think on each and every question. I pretend that there is no other question alive except the question that I am working on right now. If you have to shake your head and get back to reality if you become drowsy, then do so.

I remind myself, that every question is personal.

I answer it, then dispose of it, one question at a time.

I keep my time, and make certain that I do not fall behind. You cannot say that you did not finish if you do not let yourself fall behind. No excuses.

Do not skip questions.

You should know that by now. Why? Just in case you don’t know - - well, If you skip a question and fail to skip a question on the answer sheet too, then you are filling in the wrong blanks until the proctor tells you to stop. That is really dangerous. Do not play with your bar licensure like this. It is not worth it.

If you come to a question that for whatever reason you’ve decided not to answer because it is too %#%^%f?, then make a guess, fill in that circle, and move on. At least you are on the same set of questions moving forward and not jumping up and down screaming because you made what you would deem an innocent, yet, fatal mistake.

Please do not try to guess how many constitutional law, contracts, torts, criminal law/procedure, property, and evidence questions you answered in the a.m. session. That is a waste of time. There is no need for it. You still have to answer the afternoon questions.

It is still 100 questions that you will have to answer in the afternoon whether the moon is in Pisces and Saturn is in the upgrade of Jupiter. It won’t matter.

What does matter is that you keep your energy and lively spirit up and moving throughout Wednesday’s examination, so that you do not pretend to have MBE-last-fifteen minutes of the test- itis. You can’t get the itis. You just can’t. Fifteen questions in the last part of the exam with fifteen minutes to go. Do you know what this could mean? A score of fifteen more or fifteen less points – you can choose how you want to go out.

You cannot think about anything else during the last 8 questions. Think of only one question at a time and nothing else, please. If you have to, then say to yourself for each question, “This Is for the Money. This is for the money.” Then answer the question.

Question 95. This is for the money.

Question 96. This is for the money.

Question 97. This is for the money.

Question 98. This is for the money.

Question 99. This is for the money.

Question 100. This is for the money.

Finished. It is pay day.

I mean, PLAY Day.

Go for it. Just leave the keys to the car home.

Thank you for your time.

BTW: There are a couple of post-bar posts.

You will need to look at it for you or someone else. See you tomorrow.

GET OUT THERE EVERYONE. THE TIME IS NOW.

2010-07-27T02:36:00.000-07:00

EMINEM HAD IT RIGHT. ONE SHOT. ONE SHOT. ONE SHOT. ONE SHOT. TAKE IT.

IN CASE YOU ARE ON THE BLOG THIS A.M. SOME THOUGHTS TO MY STUDENTS.

2010-07-27T02:32:00.001-07:00

THE CALL OF THAT QUESTION SAYS GET UP, GET GOING & HAVE A GREAT, BAR EXAM.

NOTHING AND NO ONE DETERS YOU TODAY.

IF YOUR CAR WON'T START, WALK.

IF YOUR HAND WON'T WRITE, BREAK OFF SOMEONE ELSE'S HAND AND USE IT.

IF YOUR STOMACH STARTS GROWLING, GROWL BACK AT IT.

ACT LIKE JODECI: DON'T TALK, JUST LISTEN.

WORK THE QUESTION LIKE AN OLD, DIRTY T-SHIRT. TURN IT INSIDE OUT.

ANSWER EVERY QUESTION. POP THE CALL OF THE QUESTION RIGHT IN THE MOUTH.

BE LIKE A SQUIRREL LOOKING FOR FOOD. GATHER THE FACTS.

MPT PEOPLE IN D.C. DON'T FRONT ON THE MPT. YOU GOT THIS.

WE ARE NOT SHRINKING VIOLETS.

WE HAVE SEEN AS MANY TASK MEMORANDA AS THE NEXT PERSON.

I DON'T WANT TO HEAR ANYONE SAY THAT HE OR SHE MISREAD OR DID NOT UNDERSTAND THE INSTRUCTIONS. NO COP OUT. THIS IS FOR THE MONEY. AND I MEAN THAT, LITERALLY.

ANSWER THE QUESTION DIRECTLY. DO NOT HEM AND HAW.

BUT --- > K-E-E-P I-T M-O-V-I-N-G.

BE A MEAN, LEAN, FIGHTING, BAR QUESTION, ANSWERING MACHINE.

ALL RIGHT PEOPLE.

PROF. SMITH

Tomorrow - - - - > > GAME DAY.

2010-07-26T13:13:00.000-07:00

First, we have to get to the game: transportation; logistics; walking.

Transportation

How are we traveling and what problems or concerns can we run into on the way to the exam. You can run into anything and everything. How do we avoid any and everything? We leave in enough time to walk to the site if necessary. The bottom line is tomorrow is not the time to be shy. If you car breaks down, you may have to hitchhike. If the cab driver is moving too slow for your liking, tell him you need him to drive as if he or she has a purpose because the biggest exam of your life is about to happen and you must be there. This is no time to be timid (but also no time to be rude, either). A temper tantrum will not get you anywhere, except more time in traffic.

Plane.

If you are arriving by plane early in the morning, then your goal is to keep your head at all times. Airports are large, busy, and confusing. Get directions from someone who works at the terminal for a cab or where to pick up your baggage. Yes, some of you are thinking, "who is flying in tomorrow?" Believe me, there are a lot of folk that have some interesting situations going on in their lives. Someone is taking a flight out in the morning, or will board a flight in a few hours to to get to their exam. It happens. When you, plane user, get into your cab, tell the cab driver your story, so that he or she can feel that you are dealing with an urgent matter. If someone is supposed to pick you up at the airport and take you to the exam, be 1,000% certain that the person has the right airport and the right airline before you get on the plane, even if you have to text the person right before hopping onto the plane. This is not a time to take chances, especially in a situation like the one before you. When you exit the plane (and as soon as you have a signal), call the person who is supposed to pick you up at the airport and stay on the telephone with him or her once you leave the plane. Tell him or her what type of clothing you are wearing, and what kind of luggage you are carrying. Find out where they are waiting for you. Then tell them where the site of the exam is - - again. Yes, we need the plan before we get in the car. We are not working with the, "I thought you said, X, plan." That is not the m.o. for tomorrow. Once you get in the car, say your greetings, then you begin to get comfortable. If you have to change shoes, socks, t-shirts (whatever!) in the car then do it. If the car is too small, then go to the hotel closest to the exam site and use that restroom to change AND the hotel's holding area (breakfast area). Get changed, get out and get to the exam site. ASAP.

Trains.

Ummm. Do not fall asleep on the train, and miss your stop. Yeah, I know that the guy comes by and stamps your ticket, etc. But heck, his daughter might be taking the exam today and he may forget to tell you about your stop because he is thinking about whether his daughter made her connections. You will need all kinds of alarm clocks. Use 'em. Get yourself off the train and move as quick as possible to ground transportation, using the same instructions I gave for those flying in to their destination tomorrow morning.

Automobile or Bus.

Drive yourself or take a cab. Do not take the bus. You will likely kill everyone on the bus if anything goes wrong. If the busdriver sneezes one second too long after the light turns green, I would not be surprised if you threw a No. 2 pencil to pop him in his head. Everyone on the bus is chilling, and you are the only ice-cold frozen pop, a/k/a, the original, "Mr. Freeze." Follow the instructions for cab or driving. Leave in enough time to walk. If you drive, and you happen to drive and park your car somewhere where it should not have been at 8:30 a.m., and you come out at lunch (12:45 p.m.) and the car is gone. Then guess what. It's gone. Call someone at home to check it out and call the police. Spend 20 minutes trying to straighten it out. If you can't, then go get a sandwich and something to drink, and say, @#$%#%@$# that car for right now. KEEP IT MOVING. You might think that I kidding, but I am not. I left my car at Georgetown University Law Center when we were studying for the bar. I left it there at 9:00 a.m., and went back at 12:00 to get some water from the trunk. The car was gone. Bye-bye, gone. Yes, it was; but, I did not flinch. I kept it moving. Don't let it take you to another realm. Get your butt back in there and take the exam. The car is really stolen or impounded. If it is stolen, you've reported it to the police. If it is impounded, then you will pick it up when you get out of the exam.

Short-cuts to the exam.

Do not try a new shortcut. Take the exit, street, road, dirt road you know already. Do not try anything new. It is a recipe for disaster. After the exam starts, disaster.

Gasoline, Ticket Fair, etc.

Fill your tank up tonight. Do not think that you have just enough to make it to the testing site. Murphy's law is now your law, and it will follow you everywhere you go if you try to do something that is not too right. Get the gas tonight, after 9:00 p.m., when there is less traffic. Get change ... as much as necessary for the cab or if you have to park at a meter (which you probably won't have to do). But, who knows. And, really, who wants to find out the hard way.

Don't Put Your Books, Etc., in the Car the Night Before the Exam.

Leave everything either packed in a bag right near your bed, or at the front door. If someone walks off with your car, then everything is gone. Not a good feeling. They say keep your friends close and your enemies closer. Well make your books or whatever else you are storing in your car, your enemy.

Get Inside When You Arrive At The Exam Site; Don't Dawdle. No Time For That.

When you arrive at the exam site, stay close to whomever is giving instructions with the microphone. It is not a "what did she say?" moment. No time for that. You have to listen and act and react for yourself today. Nobody is watching out for you, except me. And I cannot be at 500 different locations tomorrow. I'm good, but I'm not that good.

Share the Love, But Don't Fall In Love.

You will see people you haven't seen in a few months and memories come back very quickly when everyone is trying to get through an early in the morning, gotta pass this exam, tense moment. Ain't nothing like a hug (especially from deep voice, pearly white teeth, Don Juan guy, or belly button, bouncy hair, smile-all-the-time girl). But that's all you got for him or her. A hug. Don't get caught up in the conversation. You know what you came there for; stay on track. Get going and get ready to rock and roll.

The Bathroom (and other things).

I'm no doctor and I am not trying to tell you what to do, but the bathroom did not have a chance with me when I took the bar exam. Just between you, me and the lamppost, I knew I wasn't going to stand in a line for the restroom (at least not in the morning during the exam). Empty I came to the exam; empty I left from the exam. I don't know what the experts say, but I read my own expert treatise, and it said, Barbara Vanessa Maria Teresa Smith, "you sit down, and you stay down." If you have to squeeze the saliva from your tongue to quench your thirst (this is what the BVMTS treatise told me), then that is what you will have to do in order to make it through this exam. I listened to the little voice. What do you need to make it through the day. How much is too much? What is too little? You know your body. You know your life. What do you need to keep your body and mind happy over the next two days? Other things come up and some things we cannot stop, but we can be as efficient as possible. Be efficient as you possibly can.

You have your own little voice. What is it telling you? Move. Sit. Drink (a lot) (a little). Again, you are an adult & can make this decision for yourself. I JUST WANNA KNOW if you are interested in the party that will be held in your neighborhood on or about November 5, 2010. I'm Just Asking.

Follow The Proctors' Instructions.

To The Letter. Please. Do not kicked out because someone told you not to sharpen a pencil and you decided that no one tells you what to do. The next instruction will be to pick up your things and leave, or to call upon security to escort you to the other side of the exam room. Pick your poison. Do what they ask of you now. Pass. Don't do what they ask of you because you want to do it later. Take exam in February 2011. I think you get the idea.

Seating Arrangements

Introduce yourself. The person I sat across from had some strange tick (breathing heavily or tapping finger) that I cannot readily remember right now. But when I noticed that he or she did it a lot, I lifted one hand off the desk and brought it back down onto the desk, decidedly, and I looked at the person, to let them know that he (I think it was a he), needed to stop. He did, too. I never said a word. You should figure out something that does not involve speaking that will accomplish the same goal of allowing you to get through your examination without someone else getting on your nerves. Isn't that the purpose of the exam? You should not see it in your deskmate (but, don't be surprised if you don't).

Set up all of the stuff you were allowed to bring. Do it immediately. Don't look around. Believe me. You are alone. You do not have to look around for that. Since you do not know how quickly (or, slowly) they will seat everyone, you want to be more than ready when they say "You may begin."

Let us remember to stop when we have been told to stop, AND
begin when we are told to begin. Very simple instructions; okay!

The Exam Begins:
You may start off a bit nervous. That is okay. But treat each requirement with the respect it deserves. If it is the MPT, the task memo controls. If they are essay questions, follow the call of the question. If it is a short essay answer, we make certain that our answer is short, but that it is direct, then we close, and get to the next one. We follow our watches. We have an answer for every question. We don't skip questions, either.

We treat a question like it Maxwell House Coffee: All Facts Are "Good To the Last Drop."

We do not run from a question. We knock it down. We are not scared of the law.

We do not argue. We do not sit on the fence. We DECIDE who is guilty or liable. Then we beat that @#$@#^@^#$@ into the ground!

We do not rob Peter to pay Paul. When the time is up, we kiss that question goodbye & give the new question a bear hug.

We treat facts like the equal protection clause. All facts are similarly situated. We are like Marines; we leave no fact behind.
You are the new super-hero, alias, "The Fact Finder."

We remember - - from the moment we sit down, until someone says time.
We are not fighting to get in just for us.
You want your family to eat. Well.
You family has the right to live. Well.
You have the right to have what you want.
But you're gonna have to fight for it.

LUNCH.
Get up and go, but don't eat so much food that you feel sluggish.
If you are going to have a drink, you need to do it the second lunch starts, so that you can have a restroom break before the afternoon session begins.
Don't go far, you do not want the afternoon to start before you return.
Listen to the time in which you are supposed to return.
Make a decision before you go to the exam whether you want company at lunch.
If you want company, determine your boundaries.
Some people like to talk; some people don't.
I had a wonderful lunch by myself in the car. No love lost.
Do not beat up on yourself regardless of what you think you did.
Get geared up for the afternoon.
Don't grunt and moan like a baby about what you have to do.
Handle your business.

Afternoon:
Duplicate the morning, but do so with the energy of a lion.
Push even harder than the morning.
Don't let the crazy, "where in the heck did this question come from?" throw you for a loop.
When you write the answer to the last question, make sure you go out with a bang.
Be strong. Push the keys on the computer across the page.
Put your fingers into the pen.
Concentrate on how much you love you and love how you are going to get through the exam.
When they call time.
Stop.
Get Up.
Get out.
Have a great, meal.
Don't think about what has happened.
Look forward to the next day.

And the next post.

Go get 'em.

It Is Saturday - What Are You Doing To Prepare For The First Day of The Bar Exam?

2010-07-24T06:43:00.000-07:00

Today is a work day. You are still testing, somewhere, this morning. Just because the exam is in a few days does not mean that you are not testing in the morning, memorizing in the evening, and working on what you need to travel to the exam site.

1. Testing: You can take a three-hour MBE exam.

2. Testing: You can write six essay exams (30 minutes) or four essay exams (45 minutes) or three essay exams (three hours).

3. Memorize: Say it until you mean it. Remember the phrase in the song, "now, walk it out." I want you to "talk it out." You should be able to recite the document, verbatim, without fail.

4. Review: You are reviewing material - - with a caveat. What materials have you not had a chance to fully grasp and what can you do to understand the basic points about the area of law that you seek to understand.

Yes, I know that there are some other things that you would like to review, but if you have already had an opportunity to review those things, then you should move on to the area of law that you have not had a chance to look at until now.

Do not be ashamed or embarrassed that you have not had the opportunity to look at something that you know you should have looked at before.

Be ashamed that you are not strong enough to recognize that you have work that needs to be done in an area that you don't know, and that you are not man or woman enough to face the fact that you need to look at it.

If you are ashamed of anything, be ashamed of that.

A quote to remind you that you do have time . . . .

If you break your neck,
If you have nothing to eat,
If your house is on fire,
Then you got a problem.
Everything else is inconvenience.

~ Robert Fulghum

5. You can pack later this evening. You can run to the store later. You can get "a few groceries," some other time. You don't have to take any clothes to or get any clothing from the cleaners. That is all irrelevant. Today is a work day. If you have to get something from the pharmacy or something to take with you to the exam, then remember there is an all night drugstore somewhere in your community.

Some folk will want to say, "if I don't know it by now, then I won't know it."

Save those words (if you decide to use them) for the minute you are checking in to the exam, and not one second before.

So, until tonight comes, sit your butt in the library and use this day to the fullest.

A favorite quote . . . .

"It's not that I'm so smart, it's just that I stay with problems longer."

~ Albert Einstein

Stay in there for the long run.

What Do I Need To KnowTo Get To Other Side of the Bar - Constitutional Law (Cont.).

2010-07-23T21:52:00.000-07:00

8. The Eighth Amendment: excessive bail & cruel & unusual punishment - both rarely seen on the bar examination, but not unheard of & will appear in a criminal law or criminal procedure question. For a long time there was a question whether the Eighth Amendment provisions regarding excessive bail was incorporated under the Fourteenth Amendment to the States. That question has been answered and cruel and unusual punishment is part of the incorporation doctrine.

When to use it? Anytime common sense dictates that the punishment does not meet the crime committed. And, do not be shy with the application of it. If you sense it, then include it. Since this is an area in which there is not much provided for you to follow, then common sense will dictate. It is not that big of a deal because it will not be the lead answer in any question.

9. Article IV (the Supremacy Clause); The Tenth Amendment (powers of Federalism). Both are rarely seen, but can come up when there is a question on the exam related to jurisdiction, conflict of laws, family law, or a federal courts' question. Just keep it simple. Federal laws dictate and if not an area controlled by the federal government, then it is relegated to the states (police powers govern states' health and welfare). A Federal statute and a state statute can co-exist even if both cover the same topic, but the state statute cannot conflict with the provisions of the federal statute. The state statute) can give what a Federal statute provides; it can even enhance it, but the state statute cannot directly or indirectly contravene that which the Federal statute says.

10. The Eleventh Amendment may be more popular in certain states than in others. rate stomach This amendment provides that a person may not sue a state. However, a person can sue the representatives of a state which is in a jurisdiction like Florida, for example.

How Many Times Do I Have To Tell You: The Answer Is In The Call of The Question; Utilize the Facts - You Are The New Super-Hero, "The Fact Finder."

2010-07-21T07:58:00.000-07:00

I bring this up again, because I had it out with an examinee this past Sunday and I do not want you to forget this one ... .

Get into the question, guys, please. I want you to be on it. The following is a portion of a federal jurisdiction question. I have included the last two sentences and the three questions that follow.

Look at it carefully and determine the issues the from the call of the question. No, you do not need the entire fact pattern in order to make a decision on the issues. No, you do not. Look at the conjunctions and connector words (and, if, or, but, when, if any).

Their claims against the United States are based on the Federal Tort Claims Act, which provides that federal district courts have exclusive jurisdiction over tort claims against the United States government. Their claims against Motorist are based ont he tort law of State X, where the accident occurred.

1. Can Husband and Wife, as Plaintiffs, join their respective personal injury and loss-of consortium claims in a single action in the U.S. district court? Explain

2. Can Husband and Wife join their respective claims against the United States and Motorist as defendants, in a single action in the U.S. district court? Explain.

3. Does the U.S. district court have subject matter jurisdiction over the state law claims of Husband and Wife against Motorist? Explain.

Review:

1. You already know that you should read the call of the question before reading the fact pattern.

2. Read the last sentence in the fact pattern before moving to the call of the question.

3. Read the call of the question carefully - - with a fine tooth comb. You should read the question like a detective and know exactly what is asked of you. There is no reason why you should not be able to extract the issues from the question at this point. No quesiton is beyond your reach or ability to answer. NONE.

When you read the word, "AND" in the call of a question, remember to look to the right of "and" and to the left of "and." Then prepare an answer for the word or phrase on both sides of that word.

Do you understand that?

The word, "and" does not mean, one analysis in the sentence for one item. The word, "and," divides two separate thoughts, concerns, and answers. Provide an answer to both sides of the word.

I AM SCREAMING THIS ALOUD. This is not a trick.

Please. Please. Please. Please. Please.

4. Use the doggone facts. Use all of those facts to make your argument, and make the argument. I swear to you that the answer is in the facts. Leave a fact, LOSE A POINT. Stop dismissing facts as irrelevant. Don't skip 'em. Ninety percent of the facts are relevant. I think 100% of the facts help you understand the depth of the argument.

When you are taking a practice examination, and you have answered a question, cross out the facts, get rid of them. When you cannot find a place for a relevant fact, give the fact something to do in the fact pattern, even if you are not sure of the role. Give the fact a place while you are writing the test.

Don't wait until you've answered the question to "see" where the fact goes, or if it is relevant. The exam is today, every day, in every single question. The exam is not an after-the-fact situation.

5. Don't fall down on the question. The questions are made of 26 letters/alphabets put together to make up some mumbo-jumbo words. Attack the exam.

Sneak in there like a war hero and blast open the fact pattern. No fact is safe from you - because you are the new super-hero, known as - - "The Fact Finder."

Test Taker Beware: Do Not Wish The Time To Prepare For The Bar Examination Was Over.

2010-07-20T00:16:00.000-07:00

I have run into test takers lately who have shown signs of battle scars. Worn, head held down low, tired, and thinking ahead about August and September. They are thinking about work, and they show the inevitable signs of "the wish factor." I saw an examinee and she kept saying, "I wish this exam was over." She wants the time for bar study to be over and done with and that the exam was upon them today, this Tuesday, and not next week, next Tuesday. There is so much that you can learn between now and next Tuesday. Do not rush it. I would rather you learn more now, than to try and learn more next Monday night (that can be one ugly night if you are forced to do it that way - - UGLY). So, be thankful for the next seven (7) days.

You need the last seven (7) days to get all of yourself together, okay.

You have to get yourself some shut-eye. You need these seven (7) days to either catch up on it a little, or to get more of it, or to skip a day of it, whatever your mindset is right now.

You need to get yourself a few extra dollars. If anyone is offering to pay for your lunch or dinner, or a little gas for your car, take the money. We will need it this week. The subway fare in the District of Columbia increased on June 27 and will do so again on August 1st. I imagine that our system is not the only one with an increase in fares, so take a subway card, too.

You need to get yourself an extra learning experience if you have to do so. I am holding a property refresher in estates in land/future interests for a student on Wednesday. I will be certain to explain the rule against perpetuities and its friends, contingent and vested remainders, then shifting and springing executory interests in a manner in which she will be able to grasp. I plan to discuss equitable servitudes, also. She will not leave without knowing how this all comes together, I promise myself that. We need (and wish for) a long, decent amount of time on Wednesday to explain this.

You need to get yourself packed up and ready to drive or fly wherever it is you are going. That process takes a long time when you are planning a vacation for some fun time. So we know what kind of time it takes if you are planning a not so "fun in the sun, trip" but a destination trip to the bar examination. You have to have the checklist rolling.

You need to get yourself together and remind yourself that the bar is not a drag. It is not a not. It can be an intense experience. It takes a good deal of focus. It is your lifeline to a new skills set. An opportunity to do some good for many people who don't have anyone to do good for them. In some cases, it will be an opportunity to do some not so good things. That is when we learn about our integrity and character. A post bar exam discussion.

You need to get yourself together and remind yourself why you came to law school, who supported you throughout this entire ordeal, and why you are still here. Slow your roll. Take your time. Chill. Whatever word you use to remind yourself to step back and take a break, then that is what you should do. There is a race that you are trying to win, sure, but you get a certain number of weeks to accomplish that for a reason. If it was believed that you should be able to do it in a shorter number of weeks, the exam would have started this today or last Tuesday and not next Tuesday. Count your blessings, or your karma, or your fingers, (whatever you believe in) and take the extra days accorded you to get this thing done.

Don't Rush It. What else can you learn? What essay can you write? What MBE section needs some polishing? How many MPTs have you written? Or, better yet, how many answers have you reviewed?

Take the days given; you have plenty to do. Some of your colleagues really need this time to catch up, to clean up, and ...

To get themselves together.

So, if you want to wish for something, wish for this - -

Wish that the time you have to prepare is just enough time to take & pass the actual exam.

What Do I Need To Know To Get To The Other Side of the Bar - Constitutional Law.

2010-07-16T14:19:00.000-07:00

Signs and signals that the question is one that involves constitutional law.

a statute; the mention of a statute; a rule of a government organization; the policy of a government organization; a rule from a teacher or a coach of a school, even if the coach does not teach a class in the public school (it must be a public school); the rule a teacher or a coach announces in class or in practice in a classroom or on the field (even if the sporting event is away from the school or attached to the school); circumstances where a private organization uses a government entity to hold an event, whether one night, one month or one year school.

Essays:

1. Standing: that is the initial question to ask before answering a constitutional law question. Does the plaintiff have standing? Does he have a palpable injury; one that she herself can feel, personally. Standing includes mootness and ripeness, too. Is the claim that you want to bring moot because something that was a fact is no longer relevant to the claim or cause of action. Ripe means that something has not occurred yet to allow the person to file the case in court. It is not ripe because an injury has not occurred. Remember that a person can "stand-in" for another person, too, if the person is underage & it should be the parent, but it does not have to be.

2. Void for Vagueness: is the statute so vague that you cannot determine to whom it applies. You cannot put your fingers on what behavior the legislature seeks to prohibit and how it plans to do so, under the statute(eg., the persons regulated, the conduct prohibited, or the punishment imposed). Strike it as unconstitutional.

3. Overbreadth Doctrine: the statute is so broad it conflicts with another statute that allows the prohibited conduct (usually First Amendment language). Look for words like "all, any, or every" listed throughout the statute). If you cannot determine who is doing what to whom, or why or when, and for what purpose, then the legislature has passed legislation that is so broad that it cannot applied against anyone, especially if the language allows one thing, but also prohibits that action, as well. Note: of course, you will not necessarily see the allowing/prohibiting language in the same sentence or directly next to one another.

4. First Amendment: (a) Establishment Clause; (b) Freedom of Speech (public and commercial); (c) Freedom of Religion; (d) Freedom of Association.

Establishment Clause: look for government involvement in some religious undertaking, whether it is a non-profit church, synagogue, center (combined with an application to the government for funding where the religious organization seeks to place some kind of sign or symbol on the building to indicate the religious nature of the organization - - mixed with the non-profit status of the building). Can the government provide funding for the non-profit organization with the religious symbols? It depends on where the symbols are located and whether it looks like the government’s funding looks like an endorsement of religion.

Speech is a fundamental right and is subject to levels of scrutiny, but you will have to determine whether or not the speech is content neutral and also the time, place and manner restrictions on the speech. Don’t forget that a form of speech must convey a message, so it could actually include any manner of movement. Not to worry because if there is a question about speech, it will be easy to spot. It will be a statement, a slogan, flag burning, tee-shirt wearing, sign-holding form. It won’t be something like, “a protestor sneezed into her hand,” and by-the-way, that will be considered speech. You will be able to make a decision that it is speech without wincing and wonder if the conduct is speech.

Religion is a fundamental right, but it is also a suspect class. It too is subject to strict scrutiny. Remember that it is the government’s burden to prove that it had a compelling interest (reason) to stop the person exercising his or her right to do X under their religion and there was nothing else (no other avenue) that the government could have done short of restricting the religious practice, other than to create a law/rule/policy, etc., preventing the exercise of a religious practice. If you can find one reason (only one is necessary) to show that the government could have done “one” some thing different than to stop the religious practice, then the law/regulation/rule/policy is unconstitutional. All you need is one. Examples of a certain religious group who want to smoke a mind altering, illegal substance; persons of a religious group that work at company X, but will not work weekends on a job that requires weekend work because of a requirement of his or her religion that prohibits weekend work.

Freedom of Association (Freedom of Assembly) does not seem to appear on the exam (I have not seen it). But I imagine it comes up every now and again. Even if it doesn’t, you should know that it should be treated carefully. Apply a strict scrutiny because it is a fundamental right that you have the right to associate with other people. Look for “other people” doing things that would trigger a right to associate with other people. If the people have to breakup what they are doing, treat as a fundamental right, just like speech.

5. The Fourth Amendment: mostly a criminal law, related amendment that concerns privacy, and where Terry Stop and Arrest go hand-in-hand. Generally, the Fourth Amendment prevents unreasonable searches and seizures on a person’s, “person and effects” and in a person’s home (and a few other places). There is a reasonable expectation of privacy in these areas, and you had better give/convey that on an exam before you take that privacy away. Often, the situation that comes up is the police officer who seeks to search a person and seizes (finds or locates) some item on that person’s body. Warrantless searches are illegal, unless there is some other reason (an exception) that will allow the government to search you (PACE VII) - - Plain View, Automobile Search, Consent, Exigent Circumstances, Vehicular Search, Incident to Arrest, Inventory Search. © Copyright of Barbara V. Smith, Esq. & The American Bar Assn’s Council on Legal Education Opportunity. July 2010. Make 100% certain that you know the entire test for the each exception to the search warrant requirement. If you only know a portion of any one of the tests, the answer will be wrong and you will provide only a partial answer. You don’t want that because you could, at that time, only give a partial answer.

6. The Fifth Amendment: includes the Takings Clause, the privilege against self-incrimination, and also the due process clause (the government cannot take a person’s life, liberty or property without providing the person with due process of law). There is no Fifth Amendment adverse position question on the bar exam because adverse possession has nothing to do with the Fifth Amendment.

Takings Clause: if the government takes your property for its (the government’s) own use, then the government must pay you a price for property (it’s private property, and not public). If it is a deminimus (sic) taking the government will have to pay a deminimus (sic), which is spelled out in the United States constitution as, “just compensation.”

Self Incrimination: You are not required to take the stand and tell on yourself (or tell the court that you) did something wrong.

Due Process: government can not take your life, liberty or property without due process of law. The sentence explains it – the government must give you the process that is due to you before confining you, and preventing your movement from one place to another, or taking your property (property also includes any money).

7. The Sixth Amendment contains the confrontation clause (a defendant has the right to confront witnesses that will bear testimony against him or her). There is also a second Right to Counsel (person has a right to counsel after arrest and he or she is in a position to be interrogated by the police). The right to a speedy trial judged by your peers. Return to your commercial bar outline and make certain that you have a one or two word phrase that describes the rights under the Sixth Amendment. Many rights come up on law school exams, but could be duplicated on a bar exam. I cannot say unequivocally which jurisdictions test on which rights under the various amendments, but know the phrases and what kind of facts that could lead to a question.

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Examination.

2010-07-14T23:09:00.000-07:00

Your Dreams & Goals Should Be Lofty Enough To Sustain You Through The Bar Exam.

I was not as scared, as I was uncertain. But I knew that I knew the law.

Cold. Cryogenic Cold.

I went over to Howard Law School and found a room. A room with a blackboard where I wrote my entire outline on the board. Over and over --> again.

Then I spoke it. Aloud. Then I lay on the table to sleep.

Because I was not sure if someone would take my space.

Or, if I would have to share a room.

I found a hotel room alone. I studied alone. I sat outside of the hotel on the night before the exam. Alone. I bathed myself in the bar exam.

I had missed the mark on so many other tests before that I had promised myself that I was not going to lose on this one. Missed the mark does not mean that I did not study on other tests. Missed the mark meant that I did not know how to prepare and although I thought I did the best I could to prepare, I did not receive an "A." I did not start obtaining "A" grades in law school until I saw "A" papers.

I gained too much weight. I ate too many Popeye's biscuits and red beans and rice. I exercised too little. I was (and I emphasize, was) a smoker.

My greatest achievement in life is that I am not a smoker any longer.

Black lungs and biscuits aside - I was going to pass this bar exam.

Kim Kirkman, one of the very few people that had my heart, asked me to her wedding about 10 days before the exam. I vascillated about whether or not to go. I had played that, "try to work it out with other people to preserve the friendship thing," before.

I A-L-W-A-Y-S seemed to get the short end of that stick.

This time I stayed home. I haven't seen nor spoken to Kim Kirkman since the exam. I wish her and her family well. I don't feel guilty. Loved her then. Love her now.

Noticed that people talked more about taking the exam & less about preparing for it. Didn't want to be one of those people.

The Answers Came To Me Like It Was Nothing.

I remember the first four or five words I wrote were not that attractive, but I followed my plan, and then the words flew out of my mind, directly into my fingers.

I want to emphasize. I DID NOT SHOOT FROM THE HIP. I ORGANIZED, MADE A DECISION, THEN EXECUTED THE PLAN, LIKE SOMETHING OUT OF MISSION IMPOSSIBLE.

The first question was commercial paper and secured transactions. I wanted to stand up at my desk, and scream to the other 25 people from my school taking the test and say, "I know the answer."

We are going to be okay.

The Fifteen Factors - - The Re-Mix.

1. Remember, You Are An Applicant For A State Bar & Nothing More. Don't Ever Forget It. You want to get into the club; it is not the other way around. You have not arrived.

2. Say NO to Others, Via The Establishment Clause: Purposeful, Excessive, Entanglement. Stay out of other people's lives. Live your own. For now.

3. Test Early & Test Often - Test. Review. Outline. Get Up. Early. Everyday. Test.

4. Properly Assess & Tell The Truth To Yourself About Your Personal Learning Curve. So, It takes you six hours to learn what others comprehend in 90 minutes. And?

5. Use Textbook Answers As a Method To Create Your Answers on Particular Topics. Do not reinvent the wheel. If someone has said it and you like it, then write it.

6. Wear The Hat of The People That Write The Questions & Grade the Answers. What would you want to see on an exam & what kinds of questions would you include if you were giving the test?

7. Put Pressure On Yourself Because This Is Your Time, Money, Life & Self-Preservation. Cheer yourself on - few people will take time to tap into greatness. They will come to your aid when you have finished 85% of the journey & your worth is certain.

8. Identify & Recognize Categories of the Law & The Defenses For The Cause of Action. Know what areas of the law the fact pattern presents and match a defense and remedy with EVERY cause of action.

9. Recognize & Learn Various Subject Combinations That Appear On The Exam. Know thine enemy and the substantive law to which it is attached.

10. Find a Place to Study; Have a 24 Hour Buddy Or Realize You Are On Your Own. Get used to being alone, in a place that's your cubby hole. Find a friend. If no friend in figure form, don't fret. Walk by faith.

11. Failure To Use the Time Allotted To Adequately & Properly Outline The Substantive Law. There are 24 hours given each day. Time to study first; EVERYTHING ELSE IS SECONDARY.

12. You Are Not Depressed, Sad, Feel Like You Can't Do It, and You Will Not Change Your Mind At The Last Minute; It's Ten and One-Half Weeks. Some of you are going through some real stuff. I know you are. The rest of us are not. Stop pretending.

13. Write Answers That Are Forceful, Do Not Write Answers That Are Split Down The Middle & Indecisive. No lollipop answers. If you sit on the fence, I don't want to hear a word about how hard it is to balance yourself on such a thin railing.

14. Acknowledge the Depth & Structure of Essay Questions, Multiple-Choice Questions and the Multi-Performance Test. Three issues and three sub-issues. Pick the very best answer for the question. Follow the guide of the task memorandum.

15. Fight! Don't Back Down On A Question, Or, Exam, Overall, When The Jurisdiction Has A Reputation For Being A Tough or Hard Jurisdiction To Pass. You can answer any question; just collect yourself and calm down. Get the 4-1-1 on your jurisdiction. Do not allow its reputation to get to you. Come to the exam with your own reputation.

15. Fight! Don't Back Down On A Question, Or, Exam, Overall, When The Jurisdiction Has A Reputation For Being A Tough or Hard Jurisdiction To Pass.

2010-07-13T10:14:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Examination.

1. I review hundreds of bar exam questions each year. Most of the answers fall short in one area. The answers are not decisive or definitive. The answers are informational. The answers, "argue," and do not "decide." Bar exam questions are not designed for arguments, they are written so the the examinee can make a decision about who will win or who will lose.

Hit the Question Hard.

A. Red State's statute is unconstitutional because it violates the Commerce clause, the Establishment Clause and the First Amendment to the U.S. Constitution as incorporated under the 14th Amendment to the States.

B. John will sue Sally for negligence and he will win because she was the proximate cause of his injuries.

C. Francine has three rights: she will sue for breach of contract, file a motion for improper venue, and a motion to exclude the knife because it is Fruit of the poisonous tree under the Fourth Amendment. She will lose on the contract claim because Larry was excused from his condition because of impossibility, but she will win on the venue motion because the incident occurred in Essex County, not Fraidin County. She will win on the 4th Amendment claim because the police officer did not
have probable cause to arrest Natalie.

D. If you know from the facts and the law that the mother of Larry, Curly and Moe should get custody of the children, then you need to declare it. Lucille will obtain custody of L, C, and M because (add factors and facts that show it).

Don't wince, don't beg for an answer. Don't argue, either (informational). Yell it, scream it, shout it.

2. The second thing that I have noticed about many of the people taking the bar exam is that they still allow other situations to control their lives, and often allow the bar exam to be secondary to their work. People looking for jobs, inviting relatives to come to town, providing tours of the city, trying to work up through the last five or seven days of the exam, heading the family discussion on the family issue (I did not say involved, but the point person).

Let me remind you of something. You can be a bar examinee now, and a licensed attorney in a few months, or you can do all of the things that you think you need to do TODAY, and in November you can get prepared for the bar, and not Thanksgiving. You can get prepared to discuss the meaning behind the eight days of Chanukah, or you can burn time creating the study plan for the next 10 to 12 weeks. You can think about who you will spend time with on Xmas Eve, or you can prepare for the bar. You can open gifts on Xmas Day, or you can spend time pulling out your outlines for February. You can learn the seven days of Kwanzaa, or you can think about the seven hours you will have to study each day. You can waste New Year's Eve, New Year's Day and the three days after New Year's Day saying to yourself that you will get started studying on the first weekend in the New Year, or you can comfortably prepare for the New Year in the church of your choice, the party of your choice, the club of your choice, or the destination vacation of your choice. You can spend MLK's day reflecting or helping or doing something for your community or you can spend that time really working on the speech you will give your boss for the time you will need to take off from work. Finally, you can spend Valentine's day doing some fun stuff with a fun person for a really fun 24 hours, or you can spend it with some sucker card and wondering whether your really fun person is funning with someone else.

What are you going to do?

3. The test in this jurisdiction is hard. When the test is hard, you just need to get a harder skin. You need to investigate why California, New York, Texas, Virginia, etc., are considered hard bar exams. So what you have 12 essays to write and only 12 minutes per question. That means that you need to work harder quicker, and write more efficiently faster.

You should know the mechanics of the problem by now. If not, get up off your butt and find out what makes your jurisdiction tick.

4. Do not back down on a question or allow a question to follow you into the next question.

It is a question. If it is an MBE question and you have spent the necessary time trying to figure out what that answer is and you cannot, make a true, educated guess. Then move on. If you cannot determine what the essay question wants from you, look at all of the facts, gather them, and find an answer or series of answer where the conclusion is fair. Then return to the call of the question and ask yourself who the examiner wants to target and what the examiner wants answered.

If you blow a question (MBE, MEE, Essay, MPT, Short Answer, State Multiple Choice) don't take it with you to the next question. Do you hear me. Whatever happened in bad questionville, then let it stay there. You approach the next question like it is spanking brand new. Like you've never seen it. Like it is a stranger (that you'd like to get to know) on the street.

Don't get your head all caught up in making you think that you did something wrong. You handle that next question.

I am a Tupac Shakur fan, and maybe just a little more than most. These are two lines from a song I like. When I am having a hard time doing what I need to do, I think of people who are not where I am and may not ever have that chance.

"For those with ambition in their hearts."
"For those who want some, but don't take none."

Take This Exam.

Take Some.

14. Acknowledge the Depth & Structure of Essay Questions, Multiple-Choice Questions and the Multi-Performance Test.

2010-07-12T07:09:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Examination.

Those of us who have sat for the exam or those of us sitting for the exam, generally, do not think that the exam is actually easy. But I don't always believe that we think about the questions in the detail that we should. I am not certain that we give the questions the respect they deserve. We don't always appreciate the composition of the question.

In addition to not recognizing the "features" of a question, the other thing that we fail to do is embrace the law while preparing to answer the question and studying for the bar examination, overall. We are in a hurry to learn the law, or to think of some quick way to just get through the material. Why are you in such a hurry. Aren't you really interested in understanding the law? No, I don't mean that you have time to write a Ph.D. thesis on what makes the law the law, but don't you want to speak intellligently about your livelihood without fumbling all over the place and searching for an answer.

I do.

You should, too.

Let's Start With the MPT.

The MPT is instruction driven. You should follow the task memorandum to the letter in order to maximize the points. Read the instructions carefully. The instructions will tell you things that you should do and signal you to things that it does not want you to do. Follow it.

The File and The Library. Every document in the Library has a purpose. It is there for a reason. If there are two cases in the Library and four sections of a state statute in the Library, believe me - - you can find a reason to utilze all five (5) pieces. All five items can help to maximize your score. Err on the side of inclusion, not exclusion. Recognize that the bar examiner is not trying to fool you or trick you. When the instructions indicate that you have a strong case - - believe it. When you are told not to compute damages; Don't! When you are asked to lay out your case along with your authorities, that is a wake up call to apply (synthesize)the facts and the law. Do exactly what you are told to do at all times. Take each word literally.

Words are not just words on the bar examination.

The Essay question is instruction driven, too. There are many instructions in one question. When the examiners' ask, "Allen and Lenny are challenging the rules and policies of the Hockey club and want your advice." That means that you must give it to them - - > one plaintiff at a time.

Allen has his own cause of action. So does Lenny. A rule is different from a policy, but that does not mean that each are not actionable as government regulations. A law comes in many forms (constitutions, statutes, regulations, rules, policies, or statements). Find the rule and the policy in the question.

Be word sensitive when reading the call of the question. Look at the subject and the verb. Are they plural. I've said it before and I'll say it again, look at the connector words (and, or, if, but, any, all). Scrutinize the words.

The MBE is a Strategist's Dream. Four possible questions. Four possible answers. Have you ever noticed that the answer to the question is not too hot, or not too cold, but it is just right.

Have you ever taken a practice run with 50 or more MBE questions, then when in correction mode, automatically slow down? You should. You want to know exactly why you got 1-5 right and 6-9 wrong. If you rush, then you won't find it. Then you won't know it. Then you will get it wrong again. Then you will start hating the MBE.

And we can't let that happen.

The last two weeks allow for time to address deficits or problem areas. You are still not in a hurry. You may have to sacrifice a little more time, or cut one more thing out of your life, but it is worth it not to have to return to the infamous re-take road in February 2011.

Keep the reasons and goals for your life closer to you as we move into the last two weeks of the bar exam. We are almost in push mode.

Almost. Not quite.

Read carefully and continue to embrace the law.

13. Write Answers That Are Forceful, Do Not Write Answers That Are Split Down The Middle & Indecisive.

2010-07-10T21:31:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

I had a conversation with three students yesterday. Two of them are sitting for the New York Bar examination and the third person was sitting for the District of Columbia Bar examination. I learned that one of the three had just written her first essay on Thursday, July 8th. I was concerned, but I did not show it because fear doubled with fear equals fear to the fourth power. We cannot afford fourth power fear. If you just completed your first bar exam question on the 8th of July, or if you just completed your first essay examination minutes ago, then we are going to be happy, make the correction and move on so that we have time to answer as many questions as there are left days times five.

Now, for the post.

When you write an answer for the essay portion of the bar, write it like you mean it. You do not have to tell us that "Able" would argue A, B, or C. Make a decision at the beginning of your answer, near the call of the question? Didn't the call of question ask: What are Able's rights and remedies? And not, what are Able's arguments for his rights and remedies?

The facts are built into the question to determine if you know how to fact gather and make a decision for the person reading your answer. The answer is not a diaper, and the answer is not named, "depends." There is an answer. You know it. Say it. Scream it. Yell it.

Whatever you do, please do not sit on the fence and just string together facts for the audience.

Declare Your Answer.

Answer the Question.

Just the fact Ma'am. Use all of the facts, please! The facts are in the fact pattern because you cannot answer the question without them. You have to utilize the facts in order to prove up your answer.

If your answer is, "Suzy is liable to Bill for Negligence," then it is your job to scramble around and find all of the facts that fit into the duty category, that fit into breach, that fit into proximate and actual cause, and that fit into damages.

Do not stop until you find all of the facts that fit your answer. Cross them out one at a time if you have to. You will not have a fully formed answer without a well developed story consisting of the facts that create story.

Wherever there is a cause of action, there is a matching defense of some sort. If there is a defense there are more facts that must be used. Use them.

Tell the examiner why someone should win or lose; do not suggest. If you suggest, if you hold back, if you say it "depends," then the examiner is not certain whether you actually know the law that controls the question.

Think about it.

Sally will argue A, B, and C.

Jane will argue D, E, and F.

While the two women are arguing all of the time, which one of them will actually win the lawsuit?

If You Fail To Pick Someone, How Will the Grader Know If You Really Know the Law? Really? Anyone can write that Sally will argue a few things and that Jane will argue a few things. But an argument means absolutely nothing without a decision.

You must show the examiner that one set of facts outweighs another set of facts. How else do you come to a conclusion regarding the question.

Write Forcefully.

Do not Waiver.

Do Not Sit on The Fence.

Make A Decision.

String all of the facts together.

Usse all of the facts.

Tell a convincing story, and sound as lawyerly as you can (whatever that means).

Remember a Cause of Action has a Defense, OKAY!

Finally, Do Not Back Down From The Question.

Attack it. Hit It Hard.

Continue to Tell Yourself, I'm Not Going Down Re-Take Road.

Refuse to Lose.

12. You Are Not Depressed, Sad, Feel Like You Can't Do It, and You Will Not Change Your Mind At The Last Minute; It's Ten and One-Half Weeks.

2010-07-09T00:35:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

People "Depress" Themselves Out of & Away From The Bar Exam & Slowly Into A State of "I Can't Do This."

The President of BP Oil is Depressed; People Experiencing The Devastating Effects of Haiti Are Depressed; Parents Who Must File Amber Alerts On Behalf Of Their Children Are Depressed; Men and Women Who Are Fighting In a War Have The Right To Be Depressed; Fans of LeBron James Have About Fifteen Minutes To Be Depressed.

But You, You Are Not Depressed. You Don't Have The Right To Be Depressed. You Are Preparing For An Examination That Reflects What You Want To Do For A Living. It is ten-weeks long. You are not studying in a bunker with live ammunition flying over your head. Yeah, you have loans, but the loan people will never come to your home, pull out guns and ask you to step outside while they search you and your family for the loan money. Yes, you are tired, but you are not the kind of tired where your hospital bed has been thrown under a tree for the last two months and you have no family, little medication and "grain" for food. As a matter of fact, you are in a position such that when you complete this July Journey, you could be in a position to help the BP President, the Amber Alert Parents, the People of Haiti and Katrina, and the Men and Women and their families who are serving in an active war on behalf of the United States. Maybe (maybe!) you will also be in a position to help folk in Cleveland get beyond "The Decision."

Seriously, though. Think about what you have to say about how you feel over the next couple of weeks. Certainly, you have a bit of angst. Yes, at times you don't feel quite prepared. In the morning you feel brilliant, by lunch you have wondered how you made it out of the second grade. At dinner, you are hoping the MBE numbers move up a little higher, but you don't back out even if you are only getting 10% of the answers. You don't know what is going to happen on game day. Your essays you own. Your MPTs you own. Your MBEs you own. The good, the bad, the ugly. It is all yours.

Often we play with the word, depressed. Oh, I'm depressed. We do it in an attempt to feel sorry for ourselves. It is a way to have a pity party, a brief respite from what we are trying to do. But often it is not depression; it is lack of preparation. Yes, I said it. And because we don't think we have enough time to catch up, we find ourselves blaming ourselves and blaming others for our failure to do what we need to do to keep ourselves on track.

THIS IS NOT A BAD THING TO DO. What I think is most important is that you recognize it. Call it what it is. Give yourself some time to allow it to pour through your body. Put a stamp on it. Then ease your way, as soon as possible into the next stage. Action. You are not a child. You may be cute, but you are not that kind of cute anymore. People are not going to feel sorry for you.

It is not that kind of party.

Now, you may say that you feel sad. You may say that you are tired. I cannot prevent you from saying these things. Why? I'm human. I say things like this, too. I know, however, it is a temporary condition. Even if I am not 100% certain that it is a temporary condition, I do know that I am responsible for myself. At the end of the day, I am always certain of that, so just like I fool myself into believing that I am in a state of the blahs, I, too, can fool myself into believing that I can lick the feeling, too.

I will bring this up again, about three days before the exam, because that is when another person enters your body and starts to make some ridiculous suggestions. I won't have that.

Not now, and not then.

You will take this exam.

11. Failure To Use the Time Allotted To Adequately & Properly Outline The Substantive Law.

2010-06-29T23:28:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The bar Exam.

This post is one I usually prepare at the very beginning of the bar exam study period. I write it then, at that time, because so many of us decide, at the beginning of bar study, to waste more time than necessary congregating and catching up with friends. Instead, we could have used the first two weeks of bar preparation to outline three or four subjects, and have four less subjects under our belts and ready for review/memorization 14 days before the exam. It is no one's fault that we decide to stand outside of the commercial bar prep course to converse with one another. It is the human condition to want to interact with one another, especially after we split up after law school, and begin to hang out with our respective families for a few weeks after graduation. The next time we see one another is a few weeks later at the beginning of bar prep. It is natural that we want to catch up with each other and discuss our experiences.

Okay, now that we have caught up, don't let failure to outline catch up with you.

Outline in the evenings, please. That is the end of the day. You do not have to think. It is the task of reading, interpreting, writing in a manner that you will respond to, and also yawning a little more than you want. Since it is kind'a, sort'a boring, it will be a slow process. However, it will pay off at the end of your commercial bar course.

At the end of the commercial bar course, you want to have completed all of your outlines for the exam.

Yet, nine times out of ten that will not happen. It takes an inordinate amount of time to outline properly. And since it is so boring, we have a tendency to slow down, and then slow up.

Then we pack up.

You cannot do that.

Why?

1. The subjects you fail to outline will appear in the first three questions on the essay exam.

2. The subjects you fail to outline will force you to hurrily look inside of the commercial outline book for guidance. You will realize two things: (a) there is no guidance, and (b) there are no short-cuts.

3. No one else cares that you failed to outline, which means that no one will share their work with you. It is not like law school where you can show your belly-button, speak in that quiet, soft voice, and bat your eyes and get what you want. Or, flex your biceps, speak in your Don Juan voice, and flash your teeth.

The bar exam is another animal, and it is the great equalizer. And, if you are asking someone from law school that "knew how you were," during that time (whatever that means), you can hang it up. You are not going to gain anything from that person, and perhaps that person's cohorts. I'm sorry, but if you did some folk wrong when in law school, and you are in need of information during the bar exam period? - - Well, then you are going to be short.

People will "get you back" at this time. Yes, the time when you are hoping that no one wants to play games. Unfortunately, when caught between a rock and a hard spot, you are just going to be the spot. These are the rules of the game.

So, make sure you take care of yourself, alleviate that possibility, push yourself through the work, and get those outlines done.

I like Friday evenings (6:00 p.m. until 11:00 p.m.), or Sunday afternoon (3:00 p.m. until 8:00 p.m.) as great outlining sessions. Notice that each session is only five (5) hours. I wrote that timetable for you.

If I am taking the exam, I am closing with the library, and I know the guards so well at that point, that they will actually give me an additional 20 minutes. I know; it doesn't sound like a lot, but it is. You get to pack up at the exact second the library closes. Then you have an additional 20 minutes to leave. Everyone else left 20 to 30 minutes earlier, because when the person came by to announce that the library is closing, most folk just packed it on in at that very second.

Set goals for yourself. How many pages will you outline in an hour? What is your goal for the day? Thirty pages?

You will have to push yourself. Hard. The reward is finishing the outline and having it ready, in your hands 10 to 14 days before the exam.

Here is a little bad news. You may not finish your outlines within the 14 day period before the bar exam.

You know what you do then? You continue your journey through outline world. You do not stop. You do not look back. You do not wonder if you will be able to make it.

You will make it. You can make it. You must make it.

There is no other alternative, okay?

I want you to promise me that you will have an official push day on Friday, or Sunday. That is the day you push very hard for as long as necessary to complete some substantive portion of your outline.

Promise me that and I promise you that studying from the outlines will make you feel more than ready to tackle the exam.

Remember, it may be tight, but you can break through this. You need those outlines.

Promise.

10. Find a Place to Study; Have a 24 Hour Buddy Or Realize You Are On Your Own.

2010-06-28T16:18:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

A lot of people lose study time because they move from one place to another place to another place. You unpack, repack, and pack up far more times than necessary. Stop it. That is a waste of your time and energy.

It is called a diversion, which is code for, "I don't want to do this." I want to mope around until it is too late (or, so close to it) for me to actually do something about my predicament.

You should make a decision to stop moving around from place to place. If you are still moving around, find a place to work your bar program and stay there.

Time is ultimately, your money. The waste of time is ultimately, your money, too. Stop working at one place for three hours, then another place for two hours.

Please stop packing up & deciding that you should go home.

Decide that wherever you are right now is home.

You are not that tired. You are not that sleepy. Yes, you may not be able to study anymore, but you can outline, right?

Sit Down, Stay Down.

While you are down, stay in touch with that one person that understands you and what you are going through. Hopefully, it is a friend who is sitting for the bar exam with you.

When I studied for the bar, my friend/classmate and I arrived at the library separately, but we rode home every night at midnight together. We studied on different floors, but when we had questions for one another, we shared them.

Once we arrived home, we would spend about 15 minutes chatting up about our day and what we were going to do after the exam.

Sometimes we have people like that in our lives; sometimes we don't. If you do not have a person like that in your life, then it may be likely that you will have to go it it alone.

Alone is not a bad thing. And depending on who you are, you know that you are not really alone.

Nathaniel Brandon wrote a book, "The Six Pillars of Self-Esteem," which of course, is a book that you do not have time to read. After the bar exam, I expect that you might like to read this work before going off to your new world as an attorney.

One of the things Mr. Brandon says, is this: people with high self-esteem are used to working alone. People who work alone know that they need to be alone in order to maximize the outcome of the thing that they want done.

Find a place to study. Stay there. Spend most of the time in the seat, preparing yourself to stay focused for one, three hour period. Stop running to the restroom, or the vending machine. You don't always need more water.

What you need to do is "sip on the law" needed to pass your July 2010 bar exam.

Reminder: You Should Test A Minimum of Three Hours Daily (then increase the time to 4 or 5 hours, especially for the weekend).

2010-06-28T07:43:00.000-07:00

Hello to everyone. I had not planned to write again until tonight, but I want to remind you that it is four (4) weeks until game day.

Don't be half-stepping. And, don't be scared because you have been half-stepping up to now.

In the movie, Love & Basketball, Sanaa Latham played a girl in high school who wanted to be the first woman to play in the NBA. Monica, Ms. Latham's character, was known for her temper. Her temper seemed to put her in bad favor with her college coaches.

One afternoon, she was seated at the table with her family, preparing for dinner. Her father, who had always supported her in her athletic endeavors, said, for the first time, that she might want to think about something other than basketball. That the recruiting season for college was close to the end.

Dad: "Monica, I think what your mother is saying is ... maybe it's time you
start thinking about other things beside basketball.

Monica: What?

Dad: One game left and you haven't been recruited.
Munchkin, I wanted this as bad as you did ... but we have to face reality.

Monica: The coach from USC will be at the championship.

Dad: I know, but chances are ...

Monica: CHANCES ARE, THERE'S STILL A CHANCE!

This is one of my favorite movie lines. Don't you forget that there is still a chance. It may be a small one. It may be tiny, itty-bitty chance. It is still a chance. No matter where you are in your bar studies, the game is not over yet. So you keep pushing. You may have messed up, headed out a little more than you should have, or got a late start.

But the game is never over until that last question on that last exam day.

Be Like John Wall. Be #1 in the Exam and Keep Posting Up!

9. Recognize & Learn Various Subject Combinations That Appear On The Exam

2010-06-27T22:11:00.000-07:00

The Fear Factor: Fifteen Reasons Why Applicants Fail The Bar Exam.

Many examinees become sidetracked because they read a few words into the fact pattern and assess, too quickly, the subject matter of the question the examiners' are intending to test. You have to learn how to look before you leap when tackling a bar exam question. It is also important that you know which subjects are tested together on the bar exam.

1. Criminal Law / Criminal Procedure / Evidence.

Look for the laundry list of crimes (including property crimes, crimes of passion, and strict liability crimes). Look for the two friends that commit crimes. Always know that both will not be charged with the same crime. One will be charged with burglary, the other larceny. However, the two will likely be charged with conspiracy.

Look for the situation where there are three people, too. Two will be charged with one of the same crimes, but only one will be convicted. The other person will be the conspiracy person. That is the person that decided at the last minute to abandon the crime. But make sure that he or she actually withdraws if your jurisdiction permits it. Don't forget about attempt, solicitation, entrapment and accessory before and after the fact. Watch merger of crimes, too.

Read words carefully, please. Look for words that modify other words. What do they mean?

2. Torts / Evidence.

Evidence will come up in both civil and criminal essays. We have a tendency to forget that evidence can rear its ugly head in civil matters, too.

Remember there are privileges that come up in civil cases. Remember character evidence. Though not often tested on the essay portion of the bar, don't forget habit. Don't forget hearsay in a torts/evidence question. The question usually comes in the form of some type of incident and witnesses say or do something in response to the incident

Examiners' do a good job of making certain that you have adequate information regarding the evidence portion of the exam. They will say something like admissible or inadmissible, but believe it or not, so many folk get caught up in the evidence issue that they forget the false imprisonment cause of action, that goes hand in hand with the negligence issue. Keep your eyes open for it.

3. Torts Alone.

If the question centers on torts alone, you will likely have a huge negligence action with a strict liability concern, or negligence with defamation, or negligence with an intentional tort, or two or three.

Do not forget that the tension in the rule for negligence lies in duty and proximate cause. About 5 million people have a different type of duty, and beyond that is proximate cause (which measures foreseeability). The concern you have is the superceding intervention (that new thing in the tort that happens which causes another injury in which the first defendant claims he or she is not responsible for and may not actually be liable to plaintiff. Don't forget if someone rescues the plaintiff and injures the plaintiff further, then you must start a second negligence analysis - - all over again - based on the responsibilities of rescuer.

4. Torts / Property.

Will usually fall under a landlord/tenant scenario where landlord is responsible for something to the tenant, and tenant's child, dog, friend, or boyfriend is hurt in the apartment or in the common area. Remember landlord's liability to third parties and the circumstances.

There are a number of scenarios that can make your mouth water in a torts/property question.

5. Contracts

I love common law contracts because it cuts right to the chase. All of that battle of the forms stuff is pretty much left in law school. On the examination, the question is whether the contract was formed, was their a defense to formation, and what, if any, damages are available to the plaintiff. If it is not a formation question, then their are conditions (individual or concurrent) to concern you. If not concurrent conditions, you better believe there will be a portion of the question concerning an excuse (frustration of purpose, impossibility), etc.

Don't forget damages and the calculation of the same. Remember the Hadley v. Baxendale rule - - > which says, plaintiff cannot receive more than she would have received if the contract had been performed. Thus, we won't give you more than what you are owed under the contract. That is it.

It is a lot of back and forth in a contracts question. Just deal with one person at a time. Compartmentalize. Don't try to look at Jack, Jill, Humpty Dumpty, and Little Red Riding Hood all at the same time. You will be unnecessarily overwhelmed. Look at all the things that Jack did first, then Jill's, etc.

6. Contracts / Sales

A dual contract/sales question means that one part of the question pertains to the sale of goods, and the other part of the question is based on a service of some sort (common law contracts). Mention that, and move on with the analysis. I see some folk stop to write a thesis on the common law versus sales. It is not necessary. Identify which problem facts support the sales portion of the question and which facts support the services section. Move on.

It's hard for people to remember when or if someone gave you adequate assurances that the contract will be performed. Look for failure to provide I promise language or somebody gave the other person assurances that they would fulfill the contract.

Other Popular Subject Combinations.

7. Corporations/Partnerships/Agency Theory
8. Family Law/Federal Jurisdiction
9. Family Law/Conflicts
10. Federal Jurisidiction/Conflicts
11. Constitutional Law (alone)
12. U.S. Con. Law/State Constitution
13. Secured Transactions
14. Secured Transactions/Commercial Paper
15. Commercial Paper/Sales
16. Commercial Paper/Contracts
17. Contracts/Property (I've never seen this combination).
18. Property/Torts (It happens, but it is rare).
19. Taxation/Family Law
20. Taxation/Corporation/P'ship./Agency)
21. Contracts/Leases/Sales
22. Wills, Trusts, Estates
23. Wills, Trusts, Estates/Federal Jurisdiction
24. Wills, Trusts, Estates/Conflicts
25. Wills, Trusts, Estates/Family Law.

A Post For George & Melissa [G.]reat [M.]inds.

2010-06-23T23:41:00.000-07:00

Comments on Fear Factors #5 and #8.

In Fear Factor #5, I suggested that you turn to the answers in your commercial outline to view answers to bar exam essay questions. Those answers can provide tips and information to help you construct sentences (or, paragraphs) for subjects, issues, and sub-issues on the actual exam.

Ms. Melissa's comment: "I have also found it helpful to look on the state bar's website at the model answers, because they show what can realistically be achieved in the time allotted (an hour for my state); and as you (Prof. Smith) said, I have learned how to write more efficiently and in some cases [the state's answer has] explained the law better to me, than my commercial materials."

Now, let me explain how you can make the commercial outline and the state bar's website work out the best possible combination. In the state of Maryland, for example, examiners' provide the applicant with two representative answers, and the Board of Bar Examiners' (the "Board") answer.

The Board's answer is designed to be all encompassing. The Board's response is a, "let me show you what you should have written, if you actually had time to write it," answer. The representative answers are from actual applicants' and those writings show what an applicant wrote under the stress of the exam.

Now, before I say this, understand that I am just a little, "Off the Wall." Pun intended. I look at the Board's Answer, then I look at the representative answers, and then I try to take the best combined answer of all three documents to make the ultimate bar exam answer for that question. Why would I do that? Because. Because I have been around long enough to know that the standard for one specific year, or for one graduating class, can and may be different from the standard for the next graduating class. And, I have learned the hard way, not to take chances.

When life seems to prevent me from getting a handle on what I have to do, I push my mantra to the foreground. The mantra is, "I Refuse To Lose." It does not mean I never lose, it just means I refuse to pack up my bags and go home. I'm going to give it my best shot. Even if I have only a little, "best shot," left in me. I won't just hand it over to you.

Combine the information from the two sources to get the best possible answer. Do not be denied your opportunity to get into the game because you did not look at the answer from all angles.

The second comment comes from Fear Factor #8, which requires you to identify and recognize categories of the law and the defenses (of each) for the cause of action (discussed).

George writes: Do you recommend that the way we condense/summarize our notes be the same for each subject we study? (I am studying for NY, which has many subjects, and I have used index cards for some subjects and typed outlines for others.

I have written about a concept that I apply when I lecture on the bar exam. It is called, "Let Joe, Go." When you see someone leaving the library at 5:15 p.m., and you are studying for the bar, and you want to go home, but you know you only have 27 pages left to outline, and you know you can finish the outline by 10:00 p.m., you stay. You do not wonder why "Eric" left at 5:15 p.m., even though you know that you are smarter than him. You know what you do.

You, "Let Joe, Go." You don't get up and stop him, you don't stay down and convince yourself that you should go, too. You don't condemn him for leaving at 5:15 p.m., and you never beat yourself down for staying until you knock out those last 27 pages. You do what works for you.

All - of - the - time.

Now, there are exceptions to not copying someone else's moves. If someone is teaching you to do something that you cannot do yourself, you may have to change your own personal style to get that thing done. In that case, you are looking to the proverbial Joe to help you get somewhere you were unable to get to, alone. There is nothing wrong with that.

Another exception is that you want to change. You notice someone doing something that you believe will help you. Try it. Please. The only way you get better at a thing that you think will make you better is if you try it.

But there is something wrong with changing a habit that you have perfected for years & it has worked for you. There is no need to change up in the middle of the dance. Remember the saying, "go home with the person that brought you to the dance." It rings true here, unless that method or way of doing things is causing you much more harm than good. Use the method that has always gotten you through.

Stick with the index cards for those "some" topics, and convert to typing your outline, if you want, for the other topics.

My buyer beware concern is this: be certain that you can and are able to use the words and phrases that make up your index cards, as well as the written outline, in an equally engaging fashion. You don't want to use index cards that make information confusing and have written information that is much easier to read such that you want to abandon the index cards.

Just make sure that your "outlines" follow the mandates of the equal protection clause in that all testing materials are "similarly situated."

That is what really counts.

8. Identify & Recognize Categories of the Law & The Defenses For The Cause of Action.

2010-06-22T20:59:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

When you are instructed to answer a question on the bar exam, you will usually be asked to identify a cause of action. Inherent in every cause of action is at least one defense. Know that the defense will also be part of the answer, although it may not be directly stated.

If, for example, there is an essay regarding contract law and the question addresses an issue regarding formation of the contract, then please recognize that there must be a defense to formation (particularly because if there is no defense, then the question stops abruptly) and that is impossible on a long question (which contract questions tend to be).

Anyway, what are the defenses to formation? This is a rhetorical question, but you must learn to ask yourself that question for every cause of action. Every Single One. Failure to do so will cause you to lose some kind of points. You know, for instance, that the statute of frauds, incapacity, illegality, are defenses to a formation question. Match the words that look like a formation concern with the appropriate defense.

You also know that negligence requires a duty, a breach of that duty, actual & proximate cause, and damages. Right? Yes, but what about the specific areas that need to be addressed. Duty requires you to look at an obligation, but looking at those with different responsibilities. Medical doctors have a different duty than school teachers. Landowners have a different duty than carriers (transportation) . The duty is the cause of action; the defense is whether they met the duty. Usually, the defendant comes close (does some action which is not enough). In proximate cause, the issue is whether something was foreseeable, but you need to look for the defense (a superceding, intervening event that stops the chain of causation).

Criminal law and procedure both have tons of causes of actions and defenses (eg., conspiracy requires the act and is the cause of action. The defense, generally, is withdrawal (making a telephone call or informing someone about the details of the conspiracy and calling someone to tell them about the conspiracy). All property crimes have defenses built into the elements (burglary, larceny, false pretenses, embezzlement), etc. You just have to take your time and remind yourself that where there is a cause of action, there is a defense.

The cause of action and the defense must be included in the answer on the exam. The purpose of the question is to determine whether you see the cause of action, and the defense.

7. Put Pressure On Yourself Because This Is Your Time, Money, Life & Self-Preservation.

2010-06-21T19:32:00.001-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

You must look to yourself if you have no one else to motivate you through this bar exam period. Do not wait for others to give you the support you need to get from point A to point Z.

Motivation is that one thing that we all need. Support is something that we can use, too. Although we may say we don't need anyone's motivation or support, if someone offers it up to any of us in the manner that we think best suits our personality, we will take it in the largest quantities available.

Each one of us is climbing. The higher you climb into unfamiliar territory, the more unsure and uncertain you are of your steps. You want someone to help you, not to navigate your steps toward your final destination, but to say keep going, the end is near.

We know everyone cannot be there for us all of the time. People have their own lives, their own work, their own tasks. Sometimes when their tasks call for their assistance, our friends and support groups cannot be there for us. We have to be there for ourselves. It can be extremely challenging for you to remind you of what you have to do to get pass this bar.

So, I will remind you.

You have one, single life on this planet & perhaps this is your one, single exam to take. It is a summer, a hot one, too. But it is only one out of the hopefully 80 to 100 summers you expect to have. Don't hold back on this one. You are your provider. You are responsible for yourself. You make food, make money, make resources for yourself. No one else.

You have to remind yourself that you paid a lot of money for this degree. And ... the student loan folk will remind you exactly how much this venture cost you in exactly six (6) months from your graduation date. Make your money count. Today. Dig deep. Push hard. Make your pennies count on a day-to-day basis. 'Cause I don't care how you slice it, your name will never disappear on the loans you took out. There are no other "promise to pay," people. You are that person.

You are trying to preserve yourself. Self-preservation is a concept that typically includes just us (on its face). But deep down, way past the self, and the preservation part of it, is the future. The future consists of your children. Their children. Their children's children. And their children's children. As corny as it sounds, there are future generations of "insert your last name, here" waiting for you. Those future generations are within you, you carry their dna, their future. They are hoping that you pass this exam now so that you can pass down what you have learned to their mothers or fathers.

Maybe you have information that you will share with them that stem from this education. Maybe that information will prevent someone in your family from making a mistake. Maybe you will have to represent someone in the family who made a mistake and, "but for" your license, would have been incarcerated or penalized unnecessarily. I don't know. Who knows? But I do know that you have an opportunity to make yourself good for you and your family. That, alone, should be enough.

I do know that we don't always think in that direction (I mean about our progeny, or successors, shall I say). I think we need to think like that, and more than just from time-to-time. That is what can keep us going now.

I am going to call it the Terminator 2 Effect. Are you John Connor? Are you or a future family member supposed to have a role that has an impact on this earth (so great) that you must be present to conduct it years from now. But is the caveat that you must be licensed to practice law? We cannot blow this opportunity if that is the case.

Put your time to good use. Now. Be a self-preserver. Be the John Connor of your future.

Protect yourself, your family and your future assets. GET THROUGH THIS EXAMINATION!

6. Wear The Hat of The People That Write The Questions & Grade the Answers.

2010-06-21T05:57:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

On the bar examination, presentation takes second only to the answer that you write on an essay, an MPT, or on several short answer, civil procedure questions. The person grading your work must be able to understand what you have written, otherwise, that person may show great disdain for your work. And, you don't want that. Well, what do you want?

You want to make certain that the grader can read your writing. Pay strict attention to those vowels. Close loops, dot i's, cross t's, and distinguish between a's, e's, o's and u's. No need to cause confusion.
Place one hump on n's and two on m's, please. An examiner should know that the answer to a bar exam question is "no," and not, "Mo," or "Moo."
Make sure there is adequate white space between each word you write. It makes it much easier on the eyes - the grader may already have difficulty reading a word, but since there is white space on either side of the word, the grader will take more time to try & decipher what you have written. Plus, the white space just makes the work easier to read, anyway. No one will have to contort her face to read what you, the applicant, have written.
Don't use $10.00 words when writing. Stick to words that cost $0.50 cent (yes, 50 Cent - I use whatever works). You do not have to invest a lot in a word in order for it to convey a message. Write in basic (everyday) English. Examiners' are not impressed by the quantity or quality (with one caveat) of the words you use. Examiners' want you to use language that is appropriate for this exam; often that is language directly related to the substantive law of the question.
Skip lines, please, unless you receive instructions on the exam to do otherwise. I am amazed at how many people forget not to string a series of circles on line after line, page after page, without considering that other people have to read their work. Don't forget, people, the folk reading your work are human beings. You know, they breathe air, eat food, work, have families, go on vacation, etc. Those who process your work expect a certain level of - - quid pro quo from the writer who is asking to be a member of the bar. Yes, even in the bar exam, graders' expect respect, too.
Don't scratch a hole in the paper to erase words that you do not want the examiner to see. A single-line through the word will do. Examiners' make mistakes, too - - they have seen enough exams to know that applicants are sometimes nervous and write too quickly, or say one word when they meant to say another word. We all do it. Twenty-five blue holes in an exam booklet is not that pretty, though. Someone might wonder whether you are trying to duke it out with the word, instead of cross it out.
Do not try to squeeze in additional words that you forgot to include initially, onto the same line. You ever write a sentence on a line, then decide that you needed to add additional words to the sentence ... on the same line? But now you don't know where you will place the words. So, instead of thinking of some other alternative solution, you decide that you can just squeeze another full sentence within the same space as the original sentence. Then when you can't get it all on that line, you start to write alongside the margin, such that eventually, there are words on the lines of the page and all four sides of the page, too. Not a roadmap, is it? Need I say, don't do that. What about finding a place on the line where you want to add words and writing the words, "See FNTE 1," below. Not too fancy, but it works. Signal the examiners' to find the additional written gold, at the end of the page. They won't be mad; they will like the organization, though, and that you thought about their feelings. No, I'm just joking, but they will like the idea that you are in control of your examination and you are not making them work to find or to read the answer.
Do Not Write Notes To the Bar Examiners. Notes often look like this: Sorry. Ran out of time, so I did not finish. Sorry, I did not understand the question, so I did not answer it. Sorry. The person sitting next to me was eating Cheerios, and it distracted me. Sorry. I will see you in February 2011. A zero is a zero, regardless of the sorry. I was in court once and was late. Both parties were late. The court asked me why I was late, and I told the court, "I will offer no excuse." The court went immediately to my opponent and asked him the same question. He told the court, that it was raining, that traffic was worse than usual because of the rain, something about an umbrella getting stuck in the machine that views coats, etc., and some other stuff I can't remember. I did have an excuse, but I knew that it did not matter, so I did not even proffer it. The judge did not say one word to me, but he rolled on the other person. It doesn't mean that I was right and the other person was wrong, but the bottom line in law is, there are very few valid excuses. Very few. Do not excuse yourself from answering the question. If you want to write something to the bar examiners, how about writing an answer. Let's try that, first.
Do Not Rob Peter To Pay Paul. If you have 45 minutes for a question, take 45 minutes and move on. Do not give a property question more time than a torts question. Don't you know that two separate examiners' are grading two separate tests. The person grading torts does not know that you put a hurting on the property question. And, the property question person does not know that you committed an assault and battery on the paper when you wrote the torts question. The only thing examiners' can tell about work that is incomplete, is that the work is incomplete. That's all they know and that's all they need to know to give you an insufficient score on that question. Who knows if examiners' draw further conclusions, like whether you did not have time for this question (like you did the question before it). I don't know. But I do know that I don't want to take the chance of making one examiner think that her question was not as answer-worthy as another examiner's question. We can't afford to have that, can we?
Think Like An Examiner When You Are Preparing To Answer Questions. Why did they include this fact? Why did they talk about a red house instead of just a house? What do they want from me? Why does this question have four parts? Why doesn't the question just ask for a full explanation? Why have they said, "talk about this," but don't "talk about" something else. Who are these people? What would you want from an examinee (applicant) if you were sitting on the other side, waiting to pin the word, Esq., on someone's chest.

5. Use Textbook Answers As a Method To Create Your Answers on Particular Topics.

2010-06-18T16:31:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

Most law school graduates in the United States are enrolled in some form of commercial bar preparation course. Most. Not everyone. Still, those who are not, probably purchased bar exam materials from some one who was enrolled in a commercial prep course, or purchased materials directly from a commercial bar course. That is beautiful. There is nothing wrong with obtaining the best materials possible to help you pass the bar exam.

I have a question for you. Are you really using the commercial bar prep materials to your advantage? Or, are you answering questions and reading answers, blithely? Are you not giving proper recognition to the answer that was written by an applicant, or a bar examiner, or a lawyer hired by a commercial bar preparation company? If not, then why aren't you looking at the well written answer of a colleague, an examiner, or a lawyer hired to write a good answer.

Why wouldn't you look at the answer provided for you and incorporate the language (that you find helpful) directly into your outline?

Huh? I can't hear you.

How does that saying, go? Don't fix a broken wheel? Don't reinvent the wheel. That's it. Sorry, it takes me a minute to catch on. Do not reinvent the wheel.

Let's look at an example:

Question
Don, as a subscriber, received a printed credit report from Credit Co. ("Credit") stating that Paula, an employee of Don, had over the past year written three checks that were returned for insufficient funds. This statement was incorrect, because Credit had confused Paula with another person of the same name.

Thereafter, Don called Paula into his office and told her that he was firing her. When Paula asked why she was being fired, Don replied, "Because you write bad checks." Paula strenuously denied ever writing bad checks, but Don refused to reconsider his decision.

Paula then sought employment with another employer. This prospective employer called Don and asked why she had been let go, and Don relayed the statement he had received from Credit. The prospective employer then declined to hire Paula.

1. What rights does Paula have against Credit? Explain.

2. What rights does Paula have against Don? Explain.

Answer:

Paragraph #1
1. Paula v. Credit: Paula may have a claim of defamation against Credit, but will probably not be successful because Credit can defend that it had a qualified privilege to issue the report. The issues are whether Credit, by way of its inaccurate credit statement, defamed Paula and whether it was privileged to make its statement.

Thoughts (about paragraph #1).
1. Remove extraneous words from the answer.
2. Abbreviate whenever possible.
3. Don't include sentences that begin with, "the issues are ... because the first sentence indicates to the reader that an issue exists re: defamation & a defense of privileged material.

Thoughts (about writing the law from paragraph #1)
P will sue C for defamation, but will lose because C had a qualified privilege to issue the report.

Paragraph #2
A defamation case is established if there is a publication to a third person of a statement understood as defamatory of the plaintiff that causes damage to the plaintiff's reputation. The type of damage the plaintiff must prove depends on whether the defamation constitutes libel or slander. Libel is the written or printed publication of defamatory language wherein the plaintiff does not need to prove special damages and general damages are presumed. Slander is spoken defamation wherein the plaintiff must prove special (i.e., pecuniary) damages unless the defamation falls within a slander per se category.

Thoughts (about writing the law from paragraph #2)
1. Defamation is publication of a statement to a 3rd party causing damage to the person's reputation.
2. Defamation can either be libelous or slanderous.
3. Libel is written or printed; special damages are not proven; general damages are presumed.
4. Slander is spoken, but plaintiff must prove special damages unless it is slander per se.

Paragraph #3
When the defamation involves a public figure and a matter of public concern, the plaintiff must prove, in addition to the common law elements, the falsity of the statements as well as malice (knowledge of falsity or reckless disregard of truth) on the part of the defendant. When the defamation involves a private person but a matter of public concern, the plaintiff must prove at least negligence and actual injury, in addition to falsity and the common law elements.

Thoughts (about writing the law from paragraph #3)
1. Defamation of a public figure and public concern require proof that the statements were false, and the conduct was done with malice, plus proof of the common law elements.

2. Defamation of a private person and public concern require proof of negligence, actual injury, falsity and the common law elements.

Additional Thoughts (for all paragraphs or any answers that you like).
1. Use the answers to essay questions to help you write/prepare definitions or explanations of the law to include in your outline. The already written sentences (will) may help you combine words that you might have had difficulty trying to "combine" before.

2. If you like the way the writer explained the legal statement, use it, especially if it was written in a manner that you understand. It is okay.

3. Cut out additional words to make the answer efficient.

4. Cross-out words in the answer that are extra words - words that really aren't necessary to the answer.

5. Incorporate. Incorporate. Incorporate. That is, incorporate information into your outline. Yes, it will take some time to do. But your job is just to complete your outlines on or before the last 14 days or so before the bar exam. That is the clock you are trying to beat.

Again, do not reinvent the wheel.

Use the textbook answers to incorporate in your outline esp., when the writer does a good job of explaining something, that you, in turn, will use, to explain the same concept to the bar examiners.

4. Properly Assess & Tell The Truth To Yourself About Your Personal Learning Curve.

2010-06-17T23:49:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

Sometimes it takes longer than we anticipate to learn a subject or to learn a specific topic within a subject. At other times, we can learn a topic rather quickly. The variables that determine how well a person learns something or how quickly a person adapts to the information provided us, will differ depending on each individual person's learning style. Does it really matter how quickly or slowly one learns material? I mean, does lightening quick learning or slower than molasses learning say anything about your ability to be a competent attorney? Or, your ability to be a good attorney (however you define it). The answer is no. Not, at all.

Also, no one should decide or determine for you how quickly you decide it is necessary to learn or re-learn information. Again, the operative word is "you." A commercial bar course does not get to tell you that you have 1.5 days to learn something. A friend or colleague cannot guess at it, either. Not a professor nor parent nor spouse should place limits on the time you find it necessary to reasonably master a topic or an area of the law.

No one should make the determination as to the length of time you should take to learn Commercial Paper or Secured Transactions or Contracts or Sales or Wills & Estates or Personal Income Tax I.

Your personal learning curve may be steep (for some subjects) and shorter for others. Act as soon as possible and adjust your schedule, accordingly. You must recognize which subjects require more of your learning time and when you should stop during the bar exam process and actually learn the material. There is no need for embarrassment, guilt, or shame. There is no reason to hide what you don't know, either.

WHATEVER YOU DO, BE HONEST ABOUT WHO YOU ARE TO YOURSELF!

On the flip side, there is no reason to advertise to others what you don't know, either. Folk are not always sensitive to our personal learning curves. All of us have insecurities and unfortunately insecurities manifest themselves in ways that we don't always expect (like playfully teasing a friend about his or her inability to learn a topic (quickly)). That is especially so if the friend did not learn the topic in law school. Sometimes the teasing is not that funny. We do not always recognize that a little bit of joking with someone during a sensitive time like bar preparation may actually be enough to set someone off (and even put some space between a friendship). So, be sensitive if you are a friend and you know that another friend needs time to learn the material, especially if you are not the person helping the friend learn the material.

Now, go ahead; learn the topic as soon as possible. You may have to learn the material in conjunction to reviewing other material. I suggest that if you have to learn a topic, that you treat that subject as its own, private tutorial session. So, when you conduct the testing portion of your day, you also include a short, "learn the law" session on the area of law in which you are deficient. Even if it is 20 minutes daily, your job in this arena is to be consistent.

You have to learn the material. You will have to learn the material in order to be comfortable with answering questions on that subject at a later date. And, if you are friends with Murphy's life lessons, also know as Murphy's Law, you know that the one question that you do not know will certainly appear on the bar examination.

I don't doubt that the topic will appear on the examination at least two times (probably the very first question of the exam, and the last question of the exam). Yes, it would just be your luck for that to happen.

But it will also be the examiners' lucky day, too, for you will be prepared. You will know the area of the law that is new to you because you will have attacked your weaknesses early on in the bar exam process.

Forget Murphy. Prove him wrong!

3. Test Early & Test Often - Test. Review. Outline

2010-06-16T09:44:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.

T.R.O

TEST.

Testing throughout the entire bar exam process is essential to passing. Test in the morning; Review in the afternoon, and Outline in the evening.

The applicant wants to test in the morning because that is when she is most alert and prepared for the process of testing. She has not had a lot of food or drink, and she, hopefully, has had a restful night's sleep. It is prime time for testing.

Another reason the applicant should have the desire to test first thing in the morning (and not review or outline first) is because of procrastination. If the applicant tests immediately upon rising, then she cannot make a deal with herself to suggest that she study for two or three hours first, THEN test. She cannot then reason with herself (again) about when during the rest of the day, she will test.

Unfortunately, when we will test "later that day," is when we tell ourselves the first "non-truth." We promise ourselves that we will be ready to test; we promise ourselves that we will study a little bit first before we test. And what happens to the deal we made. Nothing happens to the deal, but usually there is no testing. Perhaps, even less studying. Two study hours turn into three. Three into five. Five into six or seven. At that time you have lied to yourself so much, that you give in and make another promise to yourself that you will do "it," tomorrow. So now instead of testing on two essay questions, and 50 MBE questions, we now have a day in which we looked at a few books for more than seven (7) hours. We did not however, test ourselves on what we were looking at over this period of time. Some of us will perceive not testing as a wasted day.

I say that you are 50% correct and 50% incorrect. I do believe that no bar day is a wasted day. It may be a bar day where you have learned your limitations, perhaps. But, by no means, a waste. It may be a day when you have learned your weaknesses, or that you will talk yourself out of doing something important, but it is not a wasted day. Unfortunately, when we believe it the time for a day is wasted, those thoughts trigger bad thoughts the next day. Those are not thoughts that we can afford. No waste. A day in which we learned something about ourselves. Something that we have the power to change, even during a ten-week period. One day at a time.

REVIEW.

Review the answers, PRETTY please. I know it takes an inordinate amount of time, but I also know that every question you review, for some strange reason, becomes an answer that you tend never to forget. Even if you never see that question again.

The Essay: look at the representative answer. Do not become weighed down by the number of words in the good answer, or the bar examiners' answer. Cut to the chase. Look for the cause(s) of action, and the legal-related phrases for the sub-issues. Circle all of these words and any definitions that accompany those words. Now, look at the relationship of the words circled to the facts, particularly the words related to the issue and the sub-issue. All other words in the answer are designed to give you a more thorough explanation of the problem. It is the author's job to help you understand the details of the answer, especially since this is a time of the year where not many people are around to help you figure things out. Trust me - - the answer you are provided with is not the answer in which the examiners' expect you to duplicate.

The MBE: If you are reviewing MBE questions, look at the answers that are incorrect, AND the answers that are correct. Yes, you do have time. Time now, or time in February. It just depends on whether you are a winter or summer baby. You have time because you did all of your testing earlier that day, so stop worrying about all of the time you will spend reviewing long property questions, okay. Spend more time concentrating on isolating the reason for the best answer.

Please, while you are at it, do not fight the answer. Try, if you will, to embrace it. Try to determine why the answer is the answer, instead of why it is not the answer. Yes, you may locate one or two answers (out of 3,000 questions) that are incorrect, but even that is unlikely. Once you have isolated the reason why the answer choice is the correct answer, I suggest that you incorporate the answer (as you can understand it) into your outline. The process is very tedious, but it works. And, you will not find yourself from duplicating your efforts again.

OUTLINE.

Save the practice of outlining, or whatever it is that you create to help you with your studies, for the evening time. This is the time when your brain is seriously considering turning into mush. It is tired from testing, and reviewing, all day long. It is ready for leisure study, that is the process of outlining. Outlining is like cleaning your house. You are re-writing sentences, correcting the law, organizing information - - shifting, changing, adding, correcting, re-thinking, everyday, how you think, so that your method of studying is perfected on or before the last twelve (12) days before the bar examination.

YOUR JOB is to complete all of your outlines before your commercial bar course ends. Now, I have to say this because I cannot allow you to fall short in this area. You must move through the outline because you are trying to finish them. So, on the one hand, outlining is relaxing. On the other hand, outlining is an intense experience. So, it is intensely relaxing.

The bottom line is that you have got to push through the outlines late in the evening, when you want to relax and reward yourself for doing so much during the first two-thirds of your study day. I guess this would be my "no rest for the weary," speech. No rest because you have to be ready to memorize those outlines the last two to three weeks before the bar. During this time you will be testing and memorizing. You cannot memorize if you have not completed outlining.

You have to finish.

You want to be at the party.

You want to include Esq., at the end of the alphabet list.

You want to make things happen for you and your family.

You want to be certain, after you take the exam, that you passed it, convincingly.

You do not want to give in to temptation.

You see beyond the test and the Esquire, etc., because you know there is more to life than this.

You also know that this is your life, but just for a little while.

So, just for now, you will:

Test;

Review;

and

Outline.

2. Say NO to Others, Via The Establishment Clause: Purposeful, Excessive, Entanglement.

2010-06-14T20:12:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail the Bar Exam

Do not purposefully entangle yourself, excessively, in another's life during your bar studies. Purposeful, excessive entanglement are words used to describe the test for The Establishment Clause under the First Amendment (where the gvpt. has excessively entangled itself in religious matters [purposefully]). What can ruin your chances to pass the bar examination? Spending too much time with other people, because you feel guilty about not being there for "them" during a 10 week period when you have already been there for them during the last 10 years. At the end of the day, you will only have yourself to blame for not putting in all the time necessary to pass the bar examination.

During the bar exam period, which officially begins the first day after graduation, graduates are bombarded with invitations to do things. People want to celebrate what is going on in your life, and what is going on theirs, too. Life, as we all know, goes on, even though some of us are seeking to attach the words, "licensed to practice law," to the word, lawyer. Many others outside of our world are generally having some kind of summer fun.

Fun includes: food, song, dance, and drink. Fun comes in the form of weddings (and the various activities surrounding that event), bar-be-que's, picnics, evening and nighttime parties, and the old-time favorite, clubbing. It is also time for the birthday parties, various anniversaries, and different religious or culturally significant events. Even others are graduating, too (college, high school, even kindergarten). Then we have celebrations for our best friends' and their friends, and their friends, friends. Finally, we have mom and dad, spouse, children, boyfriend, and girlfriend that we have to provide attention to, as well.

Be careful. People have a tendency to try and snatch you out of the bar exam world and into their world for no good reason. Just because. Because you are not giving them all the attention they need. Because they are used to receiving attention from you. Because you never give them any attention at all. Boyfriends become ogres. Girlfriends become pouty. Some parents act like they "just don't understand." Good friends don't like it, maybe, because you have completed your studies in professional school and they think you are pulling away from them, or that you might leave, or that you don't want to deal with them anymore. All (or, none) of this may be true. When they pull you away, most of the time it is done sweetly, with a little gentle prodding, but it is a pull from your work, nevertheless.

Ten weeks. You must focus on that number and stay on it until the last Wednesday in July has come and gone. It is a very short time period, particularly when you are trying to learn what seems like a zillion subjects at one time. Certainly, you should feel that you can take a break when you want to ... from time-to-time. But you have to closely monitor yourself and your time. Don't let it get away from you.

You won't be able to make most of the events to which you are invited because your mind should be too exhausted from preparing outlines - from testing - from memorizing - from reviewing the answers. Yes, you get some time off here and there. Of course, you can attend the wedding. But do you really have time to attend a five-hour reception. Yes, the church fair is this weekend. You can go - when it opens you bring your donation with you, shake the officiant's hand and take a few pictures, but then you have to roll out to the library.

Sports: basketball and softball, golf and tennis, football and video games. They are all good. Very good, mind you. Just in very small doses. Physical play is exhausting. It takes a real man to play two, 3 on 3, full-court, basketball games, shower, change, breathe, then pack, either take a bus or drive a car to a venue to study, and NOT FALL RIGHT OFF TO SLEEP in the library. That is, really, a brother from another planet. You will be exhausted, and eventually fall out on the desk on MBE question 5. And as Dr. Phil would say, "How's that working for you? Now, it is okay to mess it up once, maybe two times. It is okay to kick yourself and realize that, gee, that did not work out for me. It is not okay to keep doing it and to take unnecessary chances for 2.5 months.

This is your life. Your bar experience. Guess what - you get to call ALL of the shots. I need you to follow through on that notion, and to not ever forget it. Otherwise, you will blame other people for anything less than passing. I cannot have you doing that. I want you to look into the future. Look to October or November 2010, right before the heavy holidays get started. Think about leaves falling and frost forming. I want you to lock in on these three (3) dates: October 29, November 5, and November 12, 2010.

Many bar exam results are published at or around these dates. I want you to know that these are the dates in which the real party begins. There will be a party going on in your town, on that Friday, and you want to be at the party. That Friday, whichever date it is for you, is going to be one of the most celebrated Fridays of your life. The party where you leave your house after you have checked your seat number or opened up the mail and you've read the word, pass. The party that starts that Friday, and depending on your energy level, can go on for a full seven (7) to ten (10) days ('cause after that you are an attorney, and no one is excited anymore).

And you will never forget it. I remember my Friday like it was yesterday. I can tell you exactly what I did, with whom I did it with and where I went. Mostly, I was walking around in state of every happy emotion possible.

But you don't party when you don't pass. No one is ringing your phone when you don't pass. Your friends (that passed) want to comfort you, but they are itching to hang up with you and get to the party, because the party is about to burst right out of them. There is nothing like partying with people that have sweat the same blood as you. Oh, your friends that passed. They love you; yes, they do. But if you don't pass, then on that Friday, you are not on equal party footing. And you shouldn't expect them to be.

And remember all of those people that tried to pull you away from your bar studies. They want to know if you passed, too. They are really interested in talking to you. And they sure seem sympathetic to your plight if you don't pass. Their sorrowful eyes express how sad they are as they place their arms around you. Then they look into your eyes - - isn't it interesting how you notice a glint in their eyes that you had not seen there before. Or, maybe it's their walk -- when they walk away, there is just a little more "hop" in their step, than there was before.

Don't give anyone the pleasure. No excessive entanglement. Only purposeful engagement. On Your Bar Examination.

1. Remember, You Are An Applicant For A State Bar & Nothing More. Don't Ever Forget It.

2010-06-13T21:15:00.000-07:00

The Fear Factors: Fifteen Reasons Why Applicants Fail the Bar Exam.

From time-to-time law school graduates take a much needed breath of relief after law school graduation. Three or four years of continuous hard work can take a toll on most of us, especially over that length of of time. We sometimes forget that the "lawyering process" starts all over again after graduation. Taking the bar exam is almost like taking the LSATs over again. You need a good enough score on the LSAT to enter law school. And you need a good enough score in order to pass the bar so that you can hang out a shingle to express to the world that you are a lawyer.

When you remind yourself that you are only applying to be a member of a state bar, it keeps you on your p's and q's. You think about what you say, how it is said, what you write and to whom you write. You apologize without being reminded to do so, and you are careful (let's just be honest, here) not to piss anyone off. Why is that? It is because you are trying to be called into the game. You are not even a rookie yet. Right now you are just trying to be drafted.

You will take the number one spot, but you don't have to go early in the draft to be successful. All you need to do is score well. But please don't forget that. Okay? You should already understand, "how we do it," in the legal world.

But if you don't, just flip the script and pretend like you are a bar examiner. Wouldn't you want well organized paragraphs, easy to read writing, sentences that made sense, no water or juice spills on the booklet, a logical, cohesive, lawyerlike answer to the problem you are grading.

Honestly, wouldn't you be interested in reading the writing in a bluebook that was double-spaced, where the applicant did not try to cram two lines of words into one line. Wouldn't you prefer a reference to a footnote (in the body of the writing) when the applicant had to include additional material instead of a series of arrows pointing to the extra text.

I mean, wouldn't you?

How To Approach an Essay Question - Examples & Explanations

2010-06-12T20:20:00.000-07:00

Identify the subject matter of the question by re-viewing the call of the question. The call of the question tells you one or two things (or, both): (i) the process by which the author wants the question answered using deductive reasoning; and/or (ii) the sub-issue of an area of law that the author wants discussed.
If there is more than one question to a fact pattern, then look at all of the questions, first. Do not look at only one, answer it, then return to the other two. Often, one question feeds off other questions. Do not lose time, opportunity, or energy by looking back and forth between the questions and the fact pattern. Try to gauge the various pieces of information in all of the questions before you and look for your own pattern.
If you are unsure what is being asked of you by the call, read the last sentence of the fact pattern. If the last sentence does not contain the information you seek to answer the question, then push the sentence back once more and read the sentence before that one. The last two sentences should provide you with the understanding necessary to have a good idea what the author wants from you in an answer.
Do not write anything without preparing an outline. It does not matter if it is a simple or complex statement. It is your outline; it is a reminder. It is like a person who is about to give a speech. You have jotted down some notes that you will bring up during the speech to break the ice.
An Example:

Student is a junior at Westwood High School, a public high school located in a Midwestern state. Both of the Student's parents are architects. Student plans to go to college, major in architecture, and join his parent's firm. He would like to attend Northern Central College of Architecture ("Northern Central"), a state sponsored architectural school located in Student's home town. Attending Northern Central would allow student to both go to school and work at his parents' firm. He would thus be able to gain valuable work experience while still in college.

Student's college entrance exam score and high school record exceed the academic qualifications to be admitted into Northern Central. Nevertheless, student fears that he will not be admitted to Northern Central because of his sex ---- Northern Central admits only female applicants. northern Central's catalogue explains that its all female policy is intended to compensate for past discrimination against women in the field of architecture.

Yesterday, Student came to the law firm at which you are employed and related the above facts to a partner. He went on to explain that his sister, who is currently taking a constitutional law class in college, has suggested that Northern Central's female-only policy probably violates the Due Process and Equal Protection Clauses of the United States Constitution.

Student would like to settle matters now. The partner with whom Student met comes to you and asks you to look into Student's claim. Please write a memo explaining the following:

1. Can Student bring a suit now in federal court, claiming a violation of his constitutional rights?

2. Regardless of whether Student can bring his suit now, does Student have a viable due process claim?

3. Regardless of your answers to the first two questions, does Student have a viable equal protection claim?

Discussion:

Three Questions: there are ALWAYS three different answers. Remember, examiners' never test on the exact same issue, or sub-issue, regardless of topic.
Question 1: key words here, are can and now, not will or where. There is no reference to a specific cause of action, like there is in question 2 or 3. This is a standing issue, the very first issue you should consider in any constitutional law question. You are looking for a concrete, palpable harm.
Question 2: Q2 says even if you missed the standing question, is there a viable due process claim. Think about: (i) if the claim can live (viability) (the claim must be able to survive); (ii) is there a procedural due process claim (a taking of the life, liberty, or property of another without the process that is due to that person by the government); and (iii) is there a substantive due process claim (is the gvpt. regulation arbitrary in scope).
Question 3: Q3 says even if you missed one or both of the due process considerations, is there a viable equal protection claim under the 14th Amendment? Think similarly situated individuals, think fundamental rights, think race, creed, color, religion, national origin (strict scrutiny); think discrimination on the basis of sex, or illegitimacy (intermediate scrutiny); think health & welfare (rational basis).
Keep Thinking: remember the differences (plural) between DPC and EPC, and the various ways that you can attack it. Be certain to look at both procedural and substantive due process. It does not matter if the government mandate is a statute, rule, regulation, or ordinance. It still can and should be attacked. Do not just look at EPC on one level. Keep going through the list until you find something. You have to complete the entire analysis (even if you do not ultimately find a constitutional violation) in order to garner the most points.

How To Approach An Essay Question - Get Ready, Get Set, Let's Grow.

2010-06-10T22:09:00.000-07:00

How Does One Approch An Essay Question - Carefully.

For Ms. Severe Who Is Taking The Exam With An "Empire State of Mind."

1. Yes or No. There is an answer to the essay question. The answer is either yes or no. The answer is not maybe. It is not perhaps. It is not, "there is a 50% chance of something." The answer is not sometimes. The essay portion of the exam is not designed to provide you with the opportunity to write a middle of the road answer. The essay is not the place for "standing on the fence." Why? Then there would be no wrong answers. Everyone's middle of the road answer would be correct. If the exam was written for a smack dab in the middle answer, then everyone would write a safe, side of the road answer. Why would someone risk writing a yes or no answer to a question, when the "maybe this, maybe that," answer would provide her with a passing grade for that question. Why would someone go out on a limb and choose yes or no, if there was no real reason to do so.

There is one other reason why there is an answer to the question. An examiner is never really certain if you truly know the law if you subject him or her to a middle of the road, it could be this or it could be that answer. How can someone justify giving you a high enough score on a question to pass you when you are waffling? I never forget the people that I have tutored for the bar tell me (okay, argue with me forever and forever) in our initial meeting why it is important that they stay in the middle when they do not know the answer. I listen to them tell me how they have written exam after exam after exam, and failed, and failed and failed. Over and over and over again. Honestly, it brings a note of sadness to me, because I am witnessing someone who took the bar over many times for no real reason, except that he or she never stood solidly on one answer and followed a sound analysis for that answer.

2. Timing Is Everything. The time alloted to write out the answer for an essay question varies from state to state. Essays can be 10, 12, 20, 25, 30, 45, or 60 minutes in length. Please remember one small thing about the recommended time for writing the essay. The examiners' recommend 25 minutes (for, example) because it will take you 24 minutes and 59 seconds to write the best answer possible. That is just enough time to take a breath, and turn the page to the next question. If you have completed a question before the recommended time for your jurisdiction, that does not necessarily mean that you did something wrong. It just means that you need to review your work to be certain that you did everything right. Do not assume that just because you have four and one-half minutes left on a particular question, that you are ahead of the game. Assume that the game is being played on you. Look back, check your facts, and ask yourself, did I utilize all of my facts to the best of my ability. Then, and only then, should you move forward. A little cocky. A bit cool. Slightly confident. Yes, you are those things. Careful is something that you are, too.

3. Shooting From The Hip. When you read the call of the question, at least one issue jumps out at you, and like bad breath, you notice it immediately. The next thing you know, you are huffing and puffing, writing so hard, you are bleeding at the fingers. You are so happy to have an answer, to be able to say something, to show yourself and your family and your school, and your grade school teacher, and the girl that would not hold your hand on the fifth grade trip to the zoo, that "you are," as Jesse Jackson might say, "somebody."

I say to you, "slow down, brown cow."

Stop shooting from hip - - so quickly. Look at the call of the question and the words before you, carefully. Look for connector words (and, or, but, if) for help to determine what is required of you. Plan your answer. Think about it. Outline it. Organize your thoughts, first (let us not forget about the issues and sub-issues {that is plural}). Then we can move forward and share our brilliance with the world. What are you looking for when preparing an adequate answer for the essay portion of the bar examination?

4. Three & Two, or Three & Three. I have yet to read a bar exam question that does not contain at least three issues and two sub-issues or three issues and three sub-issues. As an infamous comedian might say, "not never" have I seen a bar exam question nor written a bar exam answer that did not contain enough firepower to provide the examinee with a strong challenge. The examination is designed to test your knowledge of the general areas of law, as well as discrete areas of the law. The examination is designed to test those elements where there is tension in the rule. Tension does not mean that the rule is flexible. It means just the opposite. It means that the rule has been tested in the courts on many occasions. On those many occasions, it has been determined that the rule can be extended to include another thing, another item, another kind of human being (man, woman, child). There is tension because there is uncertainty in the rule - - uncertainty as to what, if anything, is the next exception or extension of the law. The tension in the rule often forms the sub-issues in a question.

5. It's Called A Fact Pattern for a reason. The facts create a pattern and you contemplate which laws to apply to the problem. Do the facts in the pattern, sewn together, constitute an tort (negligence)? Or, is it a formation issue of a contract? Perhaps someone blocked another person's road on adjacent property, causing a prescriptive easement. Do the facts signal that there are three people in a business relationship? Is it a corporation, a partnership, or an agency relationship. We aren't sure whether those three people, who entered into business relationship, created a corporation, a partnership or an agency relationship. But we can make certain educated guesses based on the facts that are sitting right under out noses.

But you must use the facts (all the time) to create the story about why X is guilty, and Y is not, or why M is liable and N is not. It is not a guessing game, but it is a well-reasoned one. Yes, your ability to answer a question is based on your knowledge of the law, but it is also based on a combination of your knowledge of the law and your ability to aptly understand, locate and apply the appropriate facts to the law.

Tomorrow: Answering The Question, Writing the Analysis. Examples, Included.

Essay Writing 101: Write Practice Essays To Properly Prepare for and Ultimately Pass Your Jurisdiction's Bar Examination.

2010-06-09T21:03:00.000-07:00

One of the main difficulties I have with clients who are sitting for the bar exam is the very simple notion that the applicant must practice writing essays from actual bar exam questions. Practice writing does not initially make the perfect writer, however, practice writing does make the writer a better and more aware exam taker. You are not, by the way, shooting for perfection, you are seeking as best an understanding as possible of the makeup of a bar exam question ... while striving to write a more perfect answer. Practice writing makes the applicant aware of her mistakes, aware of how much or how little law she knows, and after writing the answer, she is aware of the subtleties of the bar examiners' testing protocal.

Practice writing is not you preparing an outline of an answer in ten (10) minutes, with the hurried threat of your mind begging you to turn to the end of a book or website to "find" the answer. Practice writing means going the distance of the question for a jurisdiction --> writing out a 30, 45, or 60 minute question. Practice writing means that the applicant has pen (or, computer) in hand, timer in place, earplugs in ears (or, not), and hearing your heart mumble something to your chest in the middle of some library room while it is 90 degrees of sun outside.

The argument I often hear against writing essays as soon as possible into the bar exam process is that the person does not know enough law to adequately answer the question. My answer to that statement is three-fold: (1) you know more law than you think; (2) you may never know all of the law necessary to answer all of any question, and (3) you must learn to struggle with facts that you do not readily know the answer to in any fact pattern that is thrust upon you.

(1) You do not know how much law you know until you are faced with writing an answer.

(2) "When Will I Know," enough law to answer all of the questions. Do you want to really wait that long?

(3) I would like to focus on the third point because somehow fear creeps up and crawls inside of the applicant when he or she is faced with a question in which the answer is not known.

When you test yourself often, you are bound to come across facts that are unfamiliar to you. You are also more than likely to come across a word or term that is not a part of your vocabularly, or, even a phrase from a subject in which you are unfamiliar. You cannot run from these words, and the words are definitely not going to run from you. So what must you do.

Look at the facts, critically. What story do the facts reveal to you? You must make sense of the story before you because there must be some structure to the question and you will have to provide a structure to your answer that looks, tastes, smells, and reads like an attorney wrote it. You cannot just stare at the page. This is why you practice writing essay questions. Now!

So, you want to be used to opening up the book to a question on a subject you have reviewed so that you can get down with that question. If you do not start to get down with questions to prepare yourself to write answers now, the bar examiners will have a wonderfully packaged present for you sometime in November of this year. It will be an envelope, specially addressed to you, inviting you to another important event in Februay 2011.

This is not the circumstance where you want to hear the phrase, "May I have the envelope, please?"

Tomorrow: The Beginning - How To Approach & Dissect An Essay Question - What To Look For - What To Do.

Hello CLEO Fellows, Associates and Staff.

2010-06-08T22:32:00.000-07:00

Welcome, everyone. Thank you for signing on to the CLEO Bar Exam Blog. I want to thank Ms. Cassandra Ogden, Mr. Rod Terry, Mr. Duane Tobias, and Ms. Laura Zamfir, all of the Council on Legal Education Opportunity, who have helped me to make this blog possible for all of you. Each one of them was instrumental in the effort to get this blog up and running, very quickly. They have helped me, help you.

On that note, this blog is designed to answer questions, and provide advice and support to CLEO Fellows and Associates. So, I would like to extend a hand to all of you that are signing on to the blog for the first time today. I expect a lot of questions from the graduates of the class of 2010. I do not believe that any question is too big or small to answer. I also believe that the question not asked is the same one that can make a bar exam experience unnecessarily miserable. Often, "that question" is the one question that is on the minds of your fellow CLEO Associates or Fellows. Let me reiterate this point, again. Please, ask me the question. As a future lawyer, you want to get through this bar exam process with as much information as it takes to make this experience a one-time, July 2010 situation.

I will offer advice, too. I will share with you The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Examination. Yes, Fear, Factor, Fifteen and Fail are all in the title. The words are there "For" a reason. I am here to remind you what an examinee must do to be successful. Sometimes the reminders are subtle, other times the reminders will be strong.

The end result will be the same. It is about what you must do to place the word, Esquire, behind your name.