On Taking the Bar (A Second Time)
Some of you may know that last July saw record low pass rates not only in California, but across the U.S. It’s still being talked about. Why did it happen? Nobody really knows for sure, but the bar examiners came out swinging and alleged that bar takers were just less prepared than they had been in previous years. Naturally this pissed off deans and students alike but for many failing the bar exam, it makes us question everything about our life and our choices.
Thoughts like: “Maybe I’m not smart enough. Maybe I’m not talented enough. Maybe it was a mistake to go to law school.” And then there’s: “Oh god I’m in so much debt.” And you just go down in a long depression spiral.
I recently finished taking the California bar exam for the second time, and I WAS pretty sure I failed. So sure I literally told everyone who asked I failed, even before results were out…and then I passed. I didn’t immediately post about it, but I wanted to share with you guys some of my thoughts on the entire process and this particular round.
Once I had finished taking the bar the 2nd time and went back home, I cried. The bar exam sucks, it blows, it does everything that “your momma” jokes supposedly did in relation to blowjobs. But this round gave me a lot of perspective and I wanted to share that here because this blog is my safe space and it may comfort some fellow lawblrs out there. Feel free to email me with any more comments or questions as well. So here goes.
1. It’s Bullshit
If you have seen any of my other hippie dippy liberal bullshit posts, you can guess that I’m not big on standardized tests. Now, that’s not to say that I don’t think that there needs to be something you do before you just unleash a bunch of lawyers into the wild, but the bar exam right now is a big steaming pile of bullshit.
How often in legal practice are you going to need to know the Rule of Convience? That common law arson required only the burning of a residential dwelling? Probably fucking never? You hear from attorneys all the time that they just memorized a bunch of shit that they immediately forgot. Because it’s not useful whatsoever and you’re just learning a bunch of miscellanous bullshit that you can throw out to score a point. But the point of the bar is supposed to demonstrate that you’re “minimally competent,” not that you know a definition of arson that hasn’t been used in 100 years. It is not always testing that standard. Part of passing the bar is that you need to type faster than your neighbor and spew out some bullshit you will forget in the proper format the examiners want to see.
2. Sometimes the only thing that matters is a graders’ mood
In California, any score between a 1390 and a 1440 gets a second read on their essays. On this round I sat next to a guy who received a second read. He had a 60 point difference between his first read and his second, leaving examiners to average the score and meet in the middle. How does one account for a massive discrepancy? Well, you can’t, because California doesn’t allow you to really challenge the scoring of an essay.
Usually the only qualificaiton to be a grader is to have passed the bar exam, which gives them a lot of leeway to either up or downgrade you. Sure, there’s a rubric but we are (at least in part) at the mercy of a grader. Maybe it’s only an additional 5 points, but as many of us know, any additional points can mean the difference between passing and failing.
3. It’s so far from real practice, but they want it the way they want it.
I made a joke about this earlier but I had an MBE criminal practice question in which a husband left his diabetic wife alone, begging for her insulin, to see an NBA Championship game instead. He knew she needed insulin but got stuck in traffic and she died. I selected that he should be convicted of murder because of the special duties spouses owe one another and even the answer choice mentioned how in some jurisdictions he would be convicted of murder for this reason. BUT the answer told me he would only get manslaughter in this case because it was unforeseeable that he would hit traffic. Going home from an NBA Championship game. ….Unforeseeable. To hit traffic. From a final NBA game. ….You want to pitch that to a jury?
In real practice, you try to throw in everything WITH the kitchen sink because you (hopefully) have the time to do so. The ideals of the law is what you’ll be tested on, not what actually happens. You know how I did well on Contracts and Evidence MBE in this round? Just thinking about what “should” happen. Like, “Of course they’ll let her testify,” or “Well, he should be stuck with the contract.” My second time, I spent less time with the MBE thinking about rules and more thinking about what the law ASPIRED to do. For example, that abortion restriction will probaby go through in real life, but your Con Law MBE answer choice will probably always classify it as an “undue burden” on women’s right. Pick the ideal, not necessarily the reality.
Morever, a tip I would recommend is to format your answers the way you see the sample essays from the graders. Though it made no sense to me, in addition to clearer headings, I separated EACH IRAC with a space. So:
So there wasn’t a whole paragraph for one IRAC, but rather 4 seperate one-two sentence paragraphs. The theory is that it’s easier for grading purposes, since the graders can see you came up with each “element” of IRAC. Moreover, since the graders are often given paid per essay, they have an incentive to get through them quickly. Spacing apart each element simply looks like you wrote more-even when you didn’t. Did that help my grading? Did that help me pass in this round? Who knows, but all my sample essays came from graders who formated it like that.
Moreover, everything got spelled out-even when the bar didn’t ask for it. One essay was pure remedies on a contract question but I spelled out an IRAC for this being common law, what was a contract, having a valid contract here, subject to SOF, etc. Several of the subjects have those precursor questions, and while I don’t know for sure if those tips boosted me to pass, I think it helped for this round.
4. They’re trying to fuck with you, or at the very least, they don’t give a shit about whether or not you pass.
Some people are going to debate me on this, but I fully believe that the bar examiners are trying to purposely fuck with people. I think they purposefully make the bar much harder than it has to be because this is about keeping people out of the “club,” and not minimal competence. In California this past bar exam lacked Professional Responsibility as a major essay topic in the morning sessions. It has tested that subject over 95% of the time for the past ten years. It is the only “guaranteed” essay topic that will show up. When it didn’t appear on Tuesday’s session, everybody knew then it would be there on Thursday.
Guess what wasn’t there on Thursday?
Not including that as a major topic in morning sessions wasn’t the only reason that bar was fucked up. Repeating contracts/remedies as two major essays was another since nobody was expecting them to come up again. Creating overly complicated and lengthy PTs. Having the vast majority of the essays be multi-subject. I can’t say I believe that when they were coming up with the exam, they thought its loss wouldn’t trip people up. You can’t test Professional Responsibility that much, drop it, and then expect for people to not be shell shocked.
I can’t answer all these questions you might have, but what is for sure true though is the the entire bar industry recognizes you’re a fat cash cow and they’re going to milk you for all they can. It’s lucrative to the state to fail you and they don’t give a shit if you pass.
5. You are much smarter than you realize.
So little secret, I definitely thought that I was one of those “idiots” that the bar examiners were talking about. I got into that mental spiral and it even affected me on test day. And when I saw my worst subjects as the essay topics, I seriously spent about five minutes considering getting up and leaving. That’s painful and I’m not a quitter, but the bar exam was totally in my head. And what the bar examiners said? Utter bullshit.
My law school has what’s referred to as a summer starter program. It’s designed for incoming 1Ls who have lower LSATs and GPAs to come in and get a jump start on law school classes. I was not a summer starter but basically every one of the summer starters at my school had already passed the bar. Having lower LSATS doesn’t mean you’ll fail or pass. The real secret? You just do your best to put in the time and if you fail, it really sucks but you CAN pick yourself up and do it again.
On my second round, I was working 40 hours a week and I would file at court with my notes and make the clerks there quiz me. I got my hair cut asking my hairdresser to ask me legal questions and scenarios. I got there and I was convinced I failed. I called my bar company the day results came out to ask about the costs to take the course again. But I passed and I’m still in shock about it. And even after, I didn’t feel like I deserved to pass, because it was impossible for me to pass. I still somewhat feel that way.
For those of you studying now, I’ll leave you with this: Failing is a hard set back, but it’s not impossible to come back from. Put in the time, leave out the bullshit, and you can do it. You really, really can! If you want it, you can do it.