What’s the Point?

The methods are not guaranteed. Yet, they have proven successful.

Consider them a supplement to traditional prep.Use them as a guide to focus your studies.

Score more Points!!!

✦ I have taken the California Bar Exam 3 times. Passed the third time. I have taken the New York Bar Exam 1 time. Passed the first time.

✦ I have taken the MBE four times. Scored high enough the third and fourth times to waive into the District of Columbia.

✦ The first time I took the California Bar I was poorly prepared. I had a decent command of the law but had no clue how to write the exam. The second time I knew more about bar law than I have ever known about any subject at any age. I knew all the rules cold and I was sitting on the curve balls in the essay portion.

✦ By the third time, I was so tired of studying bar law I spent the majority of prep going through questions and studying model answers. I “taught” myself bar law in the context of the questions for both MBE and Essay and learned how to write the exam. I applied the same methods when preparing for the New York exam.

✦ In between passing the CA exam and sitting for the NY exam, I began, and continue, to work as an independent contractor for Kaplan Bar Review, writing model outlines, essays, performance tests, MBE questions and explanations and grading student materials.

About the Author

lessons learned

Repetition ⇒ MemoryForm ≥ Substance

Value the Structure

Each state administers the bar exam in their own unique way. Prepare accordingly.

✦ The Bar is an exam of Time and Pace. You are challenged to answer a set of questions in a set amount of time.

✦ Become familiar with the order in which each section of the examination is administered and how much time is allowed for each section.

✦ Be equally familiar with how points are assessed in each section and the value of each section as part of the whole.

✦ Develop the habit of studying in blocks of time that help you get accustomed to the pace necessary to effectively complete each section.

✦ Prepare for the exam by Practicing the exam.

Shift Your Thinking

The Bar Exam is not an aptitude test. The Bar Exam is not one really really really long law school final.

The Bar Exam is a standardized test.

✦ Prepare to sit for the exam. The closer you get to exam day, the more time should be spent simulating exam conditions.

✦ Specifically, this should include sitting undistracted for 2-3 hour blocks answering questions under timed conditions followed by studying the model answers.

✦ Simply memorizing the rules is insufficient. The same rule can be tested in distinctly different ways on the MBE and Essay (and state specific) sections of the exam.

✦ Focusing more of your time reading, writing and thinking about the rules in the context in which they will be tested builds the type of memory you will want to retrieve on exam day.

Question the Facts

On each section of the Bar, the fundamental task is to answer the question. The facts are your friend. They include everything you need to know to answer the question.

Every included fact may not matter, but all the facts that matter are included.

✦ The fact pattern sets the stage. The question commands the performance.

✦ Resist the urge to think outside the box. Remember, this is a standardized test, calling for standardized responses.

✦ Hundreds, even thousands, of people are expected to correctly respond to each question

✦ Going through a high volume of practice questions and model answers will help you recognize commonly tested issues and form logical, reasonable responses to more obscure issues.

There are not tricks or secrets. The only way to get better is to go through as many questions and model answers as possible.

✦ Study the MBE Subject Matter Outline and take note of the frequently tested categories.

✦ Be mindful of your strengths and weaknesses. Use flash cards to keep track of the rules and exceptions that you struggle with.

✦ Get comfortable choosing the least wrong response. Rarely will an answer choice be clearly on point. More likely it will reflect an exception to the rule.

✦ Do not be intimidated by your results. The more you do the better you’ll do over time.

Practice!!!

Practice Essays for the Test Trust in the adage, ‘Write One Essay a Day’.

Writing, outlining and studying the model answers of multiple Essays each day is an effective way to learn bar law and learn how to “sound like a lawyer”.

For Performance Tests that logic does not apply. There is a marginal return to practicing Performance Tests because of their length. Fortunately, Practice Tests are a closed universe where all relevant law and facts are provided. And, in some cases, you are provided with specific instructions on how to format the response. Practice a few to become familiar with the format.

Your time is better spent getting stronger at writing organized, detailed Essays.

✦ If you’re taking a bar prep course, submit as many Essays as possible for grade

✦ Break the habit of relying on your notes; practice “sounding like a lawyer”

✦ Do not be intimidated by your results. The more you do the better you’ll do over time

Know Your Reader

Generally, the written sections, Essays and Performance Tests, are graded by attorneys who hold full time jobs, which, generally, means they grade a high volume of exams throughout the day as time permits.

✦ Graders have a model answer and a scorecard. Help your grader help you.

✦ Make it easy for the grader to see that you: a) spotted the major and minor issues; b) analyzed the right rules against the right facts; and c) formed a conclusion.

✦ Avoid dense paragraphs, long windedness and/or intellectual acrobatics. Stick to the facts in question and the rules they trigger.

✦ Bar Examiners do not have the soft spot (curve) professors have for their students

✦ Forcing them to read your response closely is an invitation to find flaws

✦ They (likely) score hundreds of the same essay before they see yours

Answer the Outline

For both Essays and Performance Tests, outlining helps you to organize your thoughts and set the framework for a complete response to the question.

✦ Instead of using a separate sheet of paper, draft your outline as a functional part of your response.

✦ Your outline should identify each major and minor issue with its own distinct heading.

✦ Apply a distinct IRAC/CRAC analysis to each major issue (e.g., Negligence) as well as the associated minor issues (e.g., comparative negligence, contributory negligence).

“Sound Like a Lawyer”Essays and Performance Tests are graded on both substance and style. Valuable points can be lost due to bad grammar, incomplete thoughts and/or scattered arguments.

✦ Write responses lawyers can approve without reading closely. Responses that “sound” right earn more points.

✦ Use introductory and transitional phrases.

✦ The issue is whether...(state the issue)

✦ Under “Columbia” law,...(state the source of the rule)

✦ Here,...(restate the facts relevant to the rule being analyzed)

✦ It can be argued that...(make counterpoints)

✦ However, it is reasonable to believe that the court will find that...(segue into your conclusion)

✦ Therefore,...(state the conclusion)

Recall the Rule

The Bar Exam tests your command of the rules, federal and state. However, being able to recall, verbatim, every rule you are responsible for is nearly impossible.

✦ Use the fact pattern to trigger your memory. If you can spot the issue you can come up with a rule.

✦ The rule and its exceptions are in tune with the actions taken by the characters in the fact pattern.

✦ If you have trouble remembering the rule, work backwards using the facts as a guide

✦ Typically, a big event signals the central rule (e.g., validity of a contract)

✦ Specific details surrounding that big event signal exceptions and distinctions to the rule (e.g., statute of frauds, capacity, good faith)

✦ Practicing the exam will improve your ability to write rule statements that may not be exactly on point but “sound like law”, thus increasing your chances of gaining points.

Repeat the Analysis

For both Essays and the Performance Test, the analysis is the easiest component because, essentially, you are restating available information.

Analysis = the facts restated + the rule restated + context

✦ You should not copy and paste the facts. However, because the facts provided are the only facts that matter, you should restate those facts.

✦ Similarly, you should not copy and paste your rule statement. However, why reinvent the wheel? Simply restate the rule in the context of the facts.

✦ When appropriate, use the facts, the rule and its exceptions to argue both sides of the issue.

✦ Be efficient when arguing both sides; quickly address each position and transition into a conclusion

Do NOT forget to Finish

Therefore,in accordance with how points are awarded,

every issue, Major and Minor,

must be concluded.

(distinctly)

Answer the Outline1. Bill

The issue is whether any ethical issues are raised due to Laura’s dealings with Bill. a. Referral Fees

2. Paul

The issue is whether any ethical issues are raised due to Laura’s representation of Paul.

a. Duty of Competency/Diligenceb. Duty of Candor

3. Diana

The issue is whether any ethical issues are raised due to Laura’s representation of Diana.

a. Duty of Confidentialityb. Duty of Competency/Diligencec. Duty of Loyalty

“Sound Like a Lawyer”

1.Bill

The issue is whether any ethical issues are raised due to Laura’s dealings with Bill. Referral Fees

Under the Model Rules, lawyers are generally prohibited from partnering with other non-lawyers. Further, referral fees are not allowed. However, a lawyer can enter into a reciprocal referral arrangement with a non-lawyer provided if it is not exclusive and the arrangement is explained to the client at the time of referral.

Here, Laura, a recently admitted lawyer, has opened a small office in Bill’s office building. Bill, who runs a bulk mail order business, has picked up several new customers from Laura’s clients and as a result he has agreed to discount Laura’s rent in the amount of 10% of all new income received from her clients. Additionally, Bill helped Laura send a bulk mailing, which lead to her business growing, prompting Laura to agree to give Bill $250 for each new client she retains as a result of another bulk mailing. While lawyers are allowed to pay a qualified lawyer referral service, the facts do not indicate that Bill operates such a service. However, the facts also do not indicate that Laura is explicitly referring clients to Bill; instead she will argue that Bill is benefiting from the foot traffic that her business brings the office building. Also, she will argue the $250 for each new client should be seen as a performance fee where Bill gets paid based on the effectiveness of his bulk mail service. Because Bill is not directing people he knows who are in need of the type of legal services Laura provides, it is reasonable to believe that their arrangement is based on bulk mail services provided rather than a relationship based on referral fees.

Therefore, Laura has not violated her ethical duty against referral fees under the Model Rules.

Recall the Rule

2.Paul

The issue is whether any ethical issues are raised due to Laura’s representation of Paul.

Duty of Competency/Diligence

Under the Model Rules, a lawyer has the duty to use the legal knowledge, skill, thoroughness, and preparation reasonably necessary to render competent service to their client. Further, a lawyer has a duty to pursue cases in a diligent, prompt and zealous manner.

Here, Laura has agreed to file a complaint on Paul’s behalf due to injuries suffered in a car accident. In taking on Paul as a client, Laura holds a duty to provide Paul with competent service and to pursue his claim with diligence. Laura upheld this duty by promptly filing Paul’s complaint and securing him a settlement offer after only a few phone calls. Based on the settlement offer, Laura advised Paul that the offer was reasonable based on her legal knowledge gained from taking on similar cases prior to representing Paul.

Therefore, Laura has upheld her duties of competence and diligence.

Duty of Candor

Under the Model Rules, a lawyer holds a duty of candor, which prohibits them from engaging in activities that involve dishonesty, deceit, fraud or misrepresentation. Traditionally this is a duty owed to the court and adversaries. This duty may apply here because, although the activities in question do not take place in within the tribunal, Laura failed to notify Paul that Diana, the party against whom Paul has filed the claim, is Laura’s former client. Since the claim could reasonably reach the tribunal, the duty of candor prohibits Laura from omitting such a material fact.

Therefore, Laura has violated her duty of candor.

Repeat the Analysis & Finish

3.Diana

The issue is whether any ethical issues are raised due to Laura’s representation of Diana.

Duty of Confidentiality

Under the Model Rules, a lawyer cannot reveal anything related to the representation of a client without that client’s consent.

Here, Laura has agreed to represent Paul in a personal injury claim against Diana. Because Laura was representing Diana at the time in a divorce action, she was privy to confidential information about Diana. Diana will argue that Laura used this confidential information in order to procure a favorable settlement for Paul. However, the evidence does not indicate that Laura explicitly revealed any confidential information during the negotiations to settle Paul’s claim against Diana.

Therefore, Laura did not violate her duty of confidentiality.

Duty of Loyalty

Under the Model Rules, a lawyer holds a duty of loyalty to their client, which requires that the lawyer avoid any potential conflict of interest caused by the interests of another client, the lawyer himself, or a third party. The lawyer must not take on any representation that materially limits or is adverse to loyal representation of their clients. However, if the lawyer reasonably believes that he can represent clients with a potential or actual conflict, the lawyer must inform each client and procure their written consent.

Here, Laura takes on a client, Paul, whose claim is in direct conflict with one of her current clients, Diana. Although she is representing Diana in a divorce proceeding and Paul’s claim is based on personal injury, she still holds a duty of loyalty to all of Diana’s interests, not simply those relating to the divorce proceeding. It is unlikely that another lawyer would find it reasonable to take on both clients simultaneously and even if they did, they would be required to notify the clients and procure their written consent. Laura failed to take either action and instead failed to notify Paul that Diana was a former client. Further, when Diana came to Laura’s office expressing her displeasure about being sued by her lawyer, Laura neither notified her that she considered her to be a former client, nor did she recuse herself from further advising Diana. Laura’s assurance that by admitting fault, Diana’s insurance company would pay Paul’s claim with no cost to her is a direct conflict of interests.

Therefore, Laura breached her duty of loyalty.