My last post almost, but not entirely, neglected to discuss the Bar Exam. I apology and shall attempt to rectify the situation with this writing, part II of The Bar Exam.
My cousin is getting married on July 17. I am very excited for her and would love to go celebrate with our family. But I have RSVPed my regrets, as I will be working 10 hour days on my vertical workstation (hopefully not more!). Why don’t I take a break? Because I hope to be taking the Maryland State Bar Exam on July 28 & 29th.
Woah, you thoughtless bastard. You have two weeks until the exam, why can’t you spend half a day with your family? What are you, God’s Gift? Must the world revolve around you and your schedule?
No one has actually said this to me! But, while the venom isn’t there, the question has been raised–why can’t I do something important eleven days before the exam.
A quick google search reveals that many other people have asked related questions before. People who are not law students (or attorneys) simply don’t understand The Bar Exam & why most of those studying for it go incommunicado for a month or two. When this type of question is raised, “normal people” have very understandable reactions: all the hype over bar exams is a) absurd, b) proof that Icarus & Narcissus would have been law students, or c) a little overblown–it’s certainly important to study, but you can take a weekend and do X. The advice of those who have taken bar exams suggests that I ought not be writing this now. As such, I will try to be brief (that said, I won’t just link to every law blogger before me, even though they have all covered this same topic).
What Is The Bar Exam?
The Bar Exam is a two or, in certain jurisdictions, three day affair. Six to eight hours a day. The Examiners will be testing you on precise rules of law–linguistic and logical formulations set down in antiquity–as well as your ability to reason and to write. In fact, there are “magic words” that, if missing from an essay, could void your entire effort. This actually mirrors some aspects of the practice of law, where missing words (which may seem duplicative to the modern reader) could void a will or defeat the purpose of a contract.
The Exam covers “The Law.” Sure, few jurisdictions care if you know obscure tenents of maritime law (and I hope that I didn’t just jinx myself), but you can expect to cover principles of employment law, wills, trusts, torts (personal injury, defamation, medical malpractice, that sort of thing), real estate law, constitutional law, criminal law, corporate governance, etc.
Part of the exam is multiple choice (federal law), and the other part will be written essays (law of that state). Test takers have to write essay after essay on any of the testible subjects with little to no break (other than lunch). Hand cramping was a serious issue before the advent of computerized testing (which, in most jurisdictions, runs at least 1-2 hundred dollars more). And the multiple choice portion consists of 100 really complicated multiple choice questions, a break for lunch, and a hundred more.
So, it’s just a credentialing exam, right? Every taxi driver in NYC underwent one of those (a particularly difficult one, I might add). So do doctors, accountants, academics, etc. . . You have studied The Law for three years, surely you know it by now!
This is a very common refrain, as many other people also deal with credentialing exams. “But the Bar Exam is different.”
The closest analogy I have thought of is to comprehensive exams. After years of graduate study, students who want to pursue PhDs take a series of exams that demonstrate both breadth and depth of understanding of their field. Similarly, to complete my bachelor’s degree, I was required to answer questions about any class related to my major that I had taken to the satisfaction of a couple of my professors. In both cases, the examiners hope to ascertain whether you have successfully retained sufficient knowledge from your studies.
In contrast, the Bar Exam tests your knowledge of “The Law,” but you don’t learn “The Law” in law school. Instead, law school is focused on teaching you to “think like a lawyer.” And bar examiners don’t test whether a person may have retained that knowledge.
For example, the law of Evidence prohibits the admission of “hearsay testimony,” with a few limited exceptions. My evidence professor expected his students to be able to argue that any alleged “hearsay testimony” fell into one of these exceptions. Convincingly. He also expected us to be able to counter those arguments. I learned that there is no right answer, but that there are more & less convincing arguments.
Unfortunately, the bar examiners disagree. They expect us to understand that some testimony will fall within the exceptions, but also that some testimony won’t. This is what is referred to as “black letter law.” Sure, you can argue that the X doesn’t actually fit into the black letter category, or that the category doesn’t apply in this circumstance, or that application of the black letter law would cause an injustice in this case. . . but that doesn’t matter to the examiners. They just want to know whether test takers know the black letter law. And until about two/three months before the bar exam, most law students have not studied the black letter law.
Returning to the comps analogy–the bar exam might be akin to taking comps in a physical science when one had studied the history/philosophy of science. The language will be the same, and many of the concepts may have been covered, but one has an awful lot to memorize shortly before the exam.
But you’re smart, surely you have time to do X (go camping, go to a wedding, etc.)? I mean, it’s just “half a day,” or “a day,” or “a weekend.”
Ahh, thanks! But intelligence has nothing to do with Bar passage. Many very smart people have not passed a bar exam (e.g. former Stanford Law Dean and rumored SCOTUS-short lister Kathleen Sullivan, who was already licensed in New York and Massachussettes, did not pass the California Bar Exam when she sat for it in 2005.)
My recipe to beat the bar exam game? Equal parts diligence (study consistently for 10 weeks), confidence (even if a person could take the time, the fearful look back and “what if I had just practiced one more essay” inquiry could throw off their exam just enough), and just a dash of luck (train schedules, quiet room, no food borne illness).
But, can’t you just take the exam again?
Sure. But:
a) law school was expensive — I want to start practicing as soon as I can;
b) delays are excessive — the exam is only offered twice a year & the examiners take at least two months to grade all the exams, so “taking it again,” would mean ruining the holidays with study (because I would definitely do it right the second time), and not getting the big “Yes!” until April or May of next year;
c) the exam is expensive — I will have paid several thousand in exam fees, laptop fees, exam study fees (and I’m even doing a less expensive option than most of my classmates!), transportation fees, hotel fees, etc. . . add to that the opportunity cost of income not earned, the psychological cost of studying all the time, and the related social costs? No way I want to pay for this an additional time and have the added stress of having not passed the first time!
As such, I will unfortunately not be able to attend the wedding. If it was in town, I would focus and redouble my efforts and work according to a schedule that included four hours of celebration (likely dry), but when I add travel time, I must simply recuse myself. I can’t wait to toast the two of you later!
