The Benefits of Testing and Practicing with Hypos

Last semester, we discussed the importance of studying by writing out hypotheticals. That process of organizing and synthesizing material is what helps you remember the material, and is more beneficial than just reading over your notes and outlines.

This study approach was discussed in a recent New York Times article, and is worth reading and incorporating into your study habits. See Pam Belluck, To Really Learn, Quit Studying and Take a Test, N.Y. Times, January 21, 2011, at A 14 (available at http://www.nytimes.com/2011/01/21/science/21memory.html?_r=1&src=me&ref=general).

Spring Teaching Assistant Program

The First-Year TA program will continue this semester for day and evening students, beginning the week of January 31st. Much like last semester, the TA program will have a small group dynamic, and your TA group will focus on the first year doctrinal classes - specifically, contracts, torts, civil procedure, and property.

For the students wishing to continue, you can sign-up for your Spring TA group beginning Monday, January 24th at 9:00 a.m.; registration will remain open until Friday, January 28th at 3:00 p.m. on TWEN - register for "First Year TA Session Sign-Up - Spring 2011" and select your group. All registration will be handled first come, first served, and all information is confidential. We will send an email confirmation to your Touro email account with the room assignment for your group before the first day of TA sessions.

We look forward to working with you again this semester!

Preparing for the Bar Exam - Essay Questions

The essay portion of the bar exam is another important aspect of the bar exam, and you are the one in control of the question when you write. Unlike a multiple choice question where you have to match up your analysis of the problem to fit one of the answer choices, here you have some flexibility. While there are limits determined by the issues set up in the facts, you can take a slightly different path and still accrue significant points.

Bar examiners have the same expectations when reading an essay as did your law professors: one that demonstrates your ability to engage in legal thought and analysis. This doesn't mean there is a right or wrong answer, just that you provide a well-reasoned argument based on the analysis of the relevant issues and application of the law to the facts, followed by a legal conclusion. In fact, as you review sample candidate answers, you will find examples of answers that reach opposite conclusions yet have been selected as above average answers. You should pay particular attention to such examples because it’s tangible proof of what we’ve been saying all along – that it’s the reasoning that counts and not the bottom line conclusion.

The following are the steps you’ll take for writing “bar-right” essays:

1. Know Your Audience

Bar exam graders read a large number of essays and evaluate them according to strict criteria. They know what they are looking for and the easier you make it for them to find it, the more points you will accrue. Generally, you can count on writing clear, concise, and focused exam answers which conform to the basic structure of legal analysis — in other words, IRAC. This may require you to make certain adjustments in your style and presentation if you are more accustomed to broad, generalized discussions.

It is important to review released essays from the state’s bar examiners. While your bar review course includes a good number of simulated practice tests and essay writing exercises, there is no substitute for the real thing.

2. Know Exactly What is Tested and How

Some questions will lead you to the issues to be discussed and others will leave it open and require you to “issue-spot.” Only thorough preparation will let you know what to expect.

3. De-construct Exam Questions and Sample Answers

You might be wondering how “de-constructing a question” differs from “reading a question.” Generally, your focus when reading a question is to determine what is required of you to answer it. You are concerned with the information relevant to your task — evaluating whether the defendant committed felony murder, whether the statement was admissible, whether a contract was formed, and so forth. But when you are studying and trying to learn from the questions, your purpose in de-constructing a question is to analyze its organization and content for patterns and consistencies. There is a natural connection between certain topics and with preparation, you will become familiar with the questions and able to recognize the issues. Bar examiners are adept at weaving procedural questions with substantive issues in ways you might hardly notice — that is, unless you were looking for them.

Remember, the bar examiners are incredibly efficient at using a single word or short phrase to convey enormous meaning. Only careful reading of essay questions will allow you to recognize key words and phrases. The bar examiners are similarly adept at using language to signal non-issues. Only the careful, observant reader will know not to discuss such matters, saving time and effort for the real issues.

Now that you have de-constructed exam questions, it’s time to de-construct exam answers — an equally important part of your preparation. Here, rather than studying past exams to see what you can expect from the bar examiners, your goal is to learn what they expect from you. As you review sample candidate answers, you may find examples of answers that reach opposite conclusions. This is proof that it’s the reasoning that counts and not necessarily the bottom line conclusion. Certainly, the correct answer gets the most points but it is possible to get points if your argument is based on law and grounded in the facts.

4. Follow a Formula: Write IRAC

It should be clear from the de-construction process that your answers will follow a basic IRAC structure and it’s okay to be obvious about it. IRAC allows you to organize your response and remain in control, whether addressing a narrow issue-driven essay or a general question. With slight variations to account for the type of questions in your jurisdiction, you can make IRAC your blueprint for answering any essay question.

Begin your sentence with “The issue is whether.” It’s okay to be obvious; use the “whether, when” construction to lead you to connect the legal question with the specific facts in controversy. When you use this approach to formulate an issue, you avoid overly general statements and provide a path to follow in your analysis. This leads to an essay that connects the rules with the questions presented rather than one that rambles.

After your identification of the issue, your statement of the rule of law is probably the single most important part of your exam essay. First, it lets the reader know that you have identified the legal problem and second, it shows that you know the relevant law. And in writing the relevant law, be sure to write the law of your jurisdiction. Even if you could answer the question using the common law, if there is a state rule on point, you want to be sure to apply that law. Never forget that you are seeking admission to practice in a particular jurisdiction: you want the bar examiners to know that you know the applicable state law. Writing the rule consists of two parts: first, writing enough of the rule, and second, writing the rule in a logical order.

The whole rule is enough rule to provide the context to analyze the facts. The rule and the facts are inextricably linked. Your analysis of the facts will not make sense unless you have first identified the rule which determines the relevance of those facts. You must use the facts of the problem to guide your discussion of the law, and you should strive to present your statement of the law in its logical order. Generally, there is a “natural” order to writing the rule which is based on a hierarchy of concepts. This means that when you write the rule, you work from the general to the specific. Your analysis should begin with a statement of the general rule and then move to the exception, not vice versa. The general rule provides a context for understanding and appreciating the role of the exception or distinction.

How you set up the rule now drives the structure of the analysis. Your statement of the rule provides a blueprint to follow for your discussion of the facts. Work from your articulation of the rule to guide your application of the facts. Match up each element/factor you’ve identified in the rule with a fact, using the word “because” to make the connection between rule and fact. This ensures that you write facts “plus” the significance of those facts.

And after you finish the analysis, you are on to the conclusion. If the call-of-the-question asks for a specific answer, then be definitive. State your conclusion as to that issue. If there are multiple issues, then once you’ve completed your analysis of one issue, move on to the next.

5. Gain Familiarity with the Questions

The key to success in any endeavor is preparation. Familiarity with the structure of the essay questions and how you respond to them will go a long way in alleviating your anxiety on test day. You job is to practice the approach we’ve just outlined so that it becomes so automatic by test day that you move from one step to the other without missing a beat.

6. Work with Sample Answers

Finally, whether you’ve written out entire essays or only outlined the issues and rules, be sure to read the sample answers. Read all of them, even when there are several candidate samples for each question. However, be careful to read with a discerning eye toward the rules of law expressed in student papers: the bar examiners are careful to point out that they are only “sample” answers, not “model” answers. Consequently, you may find what you consider errors in statements of the law. Use this to your advantage: if you’re reading the answers “actively” as indeed you should be, then you will identify these errors and be sure to articulate the correct rule of law. Further, you should compare each sample answer to the IRAC model and fully analyze the construction. Then you should compare the sample to your own answer, element by element, taking the time to evaluate what you’ve written.

If you need additional pointers or are looking for a more in depth discussion of the bar exam, Professor Darrow-Kleinhaus' books, Acing the Bar Exam (Thomson West 2008) and The Bar Exam in a Nutshell (2d ed. 2009), are great resources.

Preparing for the Bar Exam - Multiple Choice Questions

Multiple choice questions can be tricky because your answer is either right or wrong, and the MBE poses a challenge for even the best students because there are so many questions and so little time -- the MBE tests your knowledge of the substantive law, your reading comprehension and reasoning skills, your ability to work quickly and efficiently, and your capacity to remain focused and functioning over a long period of time. But, don't worry, your bar review course should provide you with all the substantive law you need to know; and your law school education has taught you how “to think like a lawyer” -- the MBE questions require that you put the two together, and the best way to do this is to practice!

There are countless places to get practice questions - for example, your bar review courses include hundreds of practice questions, and the bar examiners also release old MBE questions for you to practice. Do not forget about the released questions because the experience in working with actual MBE questions is invaluable in helping you gain familiarity with the bar examiner’s specific use of language and framing of issues.

Practicing the questions is no substitute for knowing the black letter law. A superficial understanding of broad concepts won’t be enough to allow you to distinguish between the answer choices; instead, you will need a detailed understanding of the rules. Your analysis begins with articulation of the issue in the fact pattern, and from there you need to know the rule of law.

The more questions you answer, the more comfortable you will be with the process of answering multiple choice questions, and the more prepared you will be for them on bar day. Ideally, you should answer thousands of questions. But just “doing questions” is not enough. There is a right way and a wrong way to “do” questions and you need to know the difference.

What does it mean to “do” questions? When using the multiple choice as a practice tool, there “right way” to work with the questions. You must read carefully and actively to spot signal words and legally significant facts. Pay attention to the bar examiners’ particular use of language. The bar examiners carefully construct MBE questions to contain all the facts you need to answer the question. You must rely solely on these facts to answer the question. Of course you may draw reasonable inferences from the facts but you cannot fabricate your own or create “what if” scenarios.

In addition to keeping to the facts, don’t let yourself go off on tangents based on possible theories you see raised in the facts. This is one of the very reasons you’ll read the question stem before you read the fact pattern — to keep from going astray.

Next, just as you must remain focused on the facts as presented in the question, you must apply the rule of law to the facts without hesitation. You cannot substitute your instincts for what you know is legally correct. Your job is to follow the law and apply it to the facts mechanically.

Remember, there are four basic steps for answering a multiple choice question. You will follow this sequence for every question you practice. After a bit of practice, the process will become second nature to you to approach a question this way. You’ll soon see that it yields results.

For each question, you will:

1. Read the call-of-the-question or stem and then read the fact pattern
2. Find the issue in the facts
3. Identify the rule that addresses the issue
4. Reach a conclusion without looking at the answer choices

And don't forget, it is important to recognize that analysis of the answer choices deserves as much of your time and attention as the fact pattern. There is a lot of valuable information to be found within the answer choices.

Update: See also Preparing for the Bar Exam - The Multistate Bar Exam ("MBE").

Was your final exam disorganized?

Lack of organization in your answers might be another issue that led to a less than stellar grade on an exam. There are many reasons why your exam could have been disorganized, but the bottom line is disorganization probably came from disorganized thinking.

The first question to ask is If the disorganization stemmed from an issue of not knowing the law or misstating the law. If you know that was not the issue, and you’ve done all the necessary prep work, and you’ve still come away with the dreaded “disorganized” comment on your test booklet, then it wasn’t so much a question of knowing the material, but rather how you handled the presentation. So let’s take a look at how we can impose some order.

First, you might want to ask yourself if taking a minute to outline your answer before you started writing would have helped you organize your answer. Even though it’s appropriate to jump right into the analysis once you start writing, it’s never a good idea to jump right into the writing without a plan. As Professor Darrow-Kleinhaus discussed in the chapter in Mastering the Law School Exam on exam writing, this means that you must spend some time outlining your answer beforewriting it. You need a few minutes after reading the problem to outline the issues and come up with an approach for handling them. In your exam, it might be obvious that the you had not spent the time necessary to construct a working outline, and it will be obvious from all that’s missing in the answer.

Next, it is important not to commingle parties or issues. Never, ever, commingle your parties or your issues. Each deserves and demands separate treatment. Also, it’s a sure bet your professor included multiple parties to test multiple areas of the law. You’re just missing the point (in more ways than one!) if you overlook this frequently used test strategy. Another reason you should avoid commingling is the possibility for error.

Another question you might want to ask is whether you used a "he said, she said" analysis that went horribly wrong. While this might be effective when used by an expert, the ping-pong patter of “he will argue, then she will argue” can be disastrous for inexperienced law students. The going back and forth between parties inevitably leads to problems since the writer has to
juggle as well as engage in legal analysis. These problems can be avoided by using subheadings, which would encourage separate discussions of each party with respect to the issues and the parties - in the beginning, it is important to focus on one point of view at a time and rely on the rule of law to organize your answer.

Remember, using the rules as an organizational tool leads to a more focused and complete analysis.

Avoiding Conclusory Statements

In our last blog post, we gave the basic framework for what you should do if you got a disappointing grade last semester - in the post, we discussed that one of your professor's comments might be that your analysis was conclusory. What does this mean, and how can you fix it?

Typically, if your work suffers from a conclusory-style analysis, you’ll just see the comment “conclusory” on your paper. But there are really two types of “conclusory” statements. It’s important for us to distinguish between them because each presents a different problem for the student and requires a different response.

• The first kind of conclusory statement is one that states a legal conclusion. This occurs when there’s an insufficient legal foundation to provide authority to support the statement.



• The second kind states a factual conclusion. This appears as either a restatement of the facts in the hypothetical or a judgment about what the facts mean without explaining the basis for the judgment.

Typically, however, the lines between the two blur and the sentence is conclusory for one or both reasons. It doesn’t really matter whether it’s one or the other except to recognize why it’s conclusory and to fix it.

For example, does your analysis start with a "yes" or "no" answer? If you hadn’t already figured out, it’s not the conclusion you reach, but the way you get there that’s of interest to your professor. It’s a pretty safe bet your professor isn’t looking for a “yes” or “no” response unless you’re answering a short answer question. Even assuming this problem called for a direct answer, it would be unlikely you’d begin with one. Instead, you’d have to work your way through an analysis of the facts in light of the relevant rule before you could even suggest a possible outcome.

Remember, without the legal definition to provide a context, there’s no legal basis to form your analysis; and second, without applying the facts to show how the law applies, all you have is an assertion. Using facts instead of merely reciting them can be a remedy to this problem. Be aware not to simply make declaratory statements, and also beware - it’s rarely a good idea to begin a sentence with such words as word “clearly” or “obviously.” Typically, the facts in your exams are so purposely ambiguous that nothing is ever “clear.” Chances are if you’re finding clarity, you’re missing the real issue!

Like our last blog post pointed out, by following our suggestions, as well as making use of the suggestions in Mastering the Law School Exam, you’ll be able to make the changes necessary to achieve the success that your hardwork deserves.

What to do if you get a Disappointing Grade

It’s hard to be on the receiving end of a poor grade, and there’s nothing more frustrating than trying to figure out what went wrong. It’s hard to understand and even harder to explain how hundreds of hours spent in attending classes, reading required materials, diligently writing case briefs, and preparing a course outline could possibly result in a low grade. But it can and it does, leaving you feeling bewildered, disheartened, and somewhat betrayed. So we're not about to minimize your disappointment if you received a low grade – it really hurts – but what matters now is what you learn from the experience. It’s okay to take a couple of days off to console yourself, but absolutely no more. We must get back to work. Only now, we work differently.

It’s not enough to go through the exercise of looking over the exam with your professor or comparing what you’ve written to a sample answer – you need to know why what you wrote on the exam that didn’t earn the grade you think it deserved. To do this, we need to get inside your head to see where what you were thinking departed from what you should have been thinking.

First, reviewing your exam with your professor is essential to developing your written communication skills. If you think about it, your primary interaction with your professor thus far has been primarily oral – either you were called upon in class or you met outside of class to talk about the material. What you’ll learn from your written exam will probably surprise you. For example, you might learn that you “knew the law" but failed to receive credit because your answer wasn’t responsive to the professor’s question. Or you might discover that your reading of the problem was so flawed that you added your own facts or misconstrued them, either of which could have led to disappointing results. Only by meeting with your professor to go over the exam will you get a sense of how your thinking and response to the questions differed from what your professor had in mind.

From there, it is absolutely essential to learn how to help yourself. Not only are you in the best position to assess your own learning issues, but you are the only one who knows what you know and what you don’t. While it’s helpful to listen to questions asked by other students both in and out of class, it’s not always the question you need answered. Sometimes, you may find difficulty in framing the very question you need to ask. This is a very common problem. After all, articulating a question presupposes that you have a solid enough understanding of the material to identify the part you don’t understand. In short, you need to understand what it is you don’t know before you can get the help you need.

It’s possible to get sufficient insight into what you don’t understand to allow you to articulate the questions you need to ask. This requires some work on your part, but work that is well worth the effort because it puts you in control. Here, we have something concrete to work with – you can use what you wrote on your exam and your professor’s responses to it. Things to pay attention to include whether you are missing a discussion of the law, missing issues, relying on conclusory statements, lack an IRAC form, lack organization, or straying from the relevant issue. Each of these issues (and many more) can be fixed, and are discussed in depth in Chapter Eight of Professor Darrow-Kleinhaus' book, Mastering the Law School Exam.

While we might have moved quickly through what to do to improve, it is important to remember that there’s still a great deal which you can do to affect the final outcome. We know it’s not easy to get your energy and enthusiasm back after a disappointing grade but you must. By following the suggestions and approaches we’ve touched on here, as well as following the suggestions that are discussed in depth in Mastering the Law School Exam, you’ll be able to make the changes necessary in your studying, your thinking, and your writing to achieve the success your hardwork deserves. The key is that you go forward doing things differently than you did before. That’s the real point of what we’ve been doing – learning how to do things differently so you’ll achieve a different result.

And, as always, we are here to help!