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.
Tuesday, June 29, 2010
Monday, June 28, 2010
10. Find a Place to Study; Have a 24 Hour Buddy Or Realize You Are On Your Own.
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.
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).
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!
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!
Sunday, June 27, 2010
9. Recognize & Learn Various Subject Combinations That Appear On The Exam
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.
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.
Wednesday, June 23, 2010
A Post For George & Melissa [G.]reat [M.]inds.
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."
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.
Tuesday, June 22, 2010
8. Identify & Recognize Categories of the Law & The Defenses For The Cause of Action.
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.
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.
Monday, June 21, 2010
7. Put Pressure On Yourself Because This Is Your Time, Money, Life & Self-Preservation.
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!
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.
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?
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.
Friday, June 18, 2010
5. Use Textbook Answers As a Method To Create Your Answers on Particular Topics.
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.
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.
Thursday, June 17, 2010
4. Properly Assess & Tell The Truth To Yourself About Your Personal Learning Curve.
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!
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!
Wednesday, June 16, 2010
3. Test Early & Test Often - Test. Review. Outline
The Fear Factors: Fifteen Reasons Why Applicants Fail The Bar Exam.
T.R.O
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.
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.
Monday, June 14, 2010
2. Say NO to Others, Via The Establishment Clause: Purposeful, Excessive, Entanglement.
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.
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.
Sunday, June 13, 2010
1. Remember, You Are An Applicant For A State Bar & Nothing More. Don't Ever Forget It.
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?
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?
Saturday, June 12, 2010
How To Approach an Essay Question - Examples & Explanations
- 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.
Thursday, June 10, 2010
How To Approach An Essay Question - Get Ready, Get Set, Let's Grow.
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.
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.
Wednesday, June 9, 2010
Essay Writing 101: Write Practice Essays To Properly Prepare for and Ultimately Pass Your Jurisdiction's Bar Examination.
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.
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.
Tuesday, June 8, 2010
Hello CLEO Fellows, Associates and Staff.
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.
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.
Subscribe to:
Posts (Atom)