Articles by Vivian Dempsey

The Fix Is In On July Bar Exams

Hard Work Beats Genius

Straight talk about bar grading

Practical things to know

Reread danger zone 1390-1439

Performance Test anxiety

No model answers

Reasoning pays off


The Fix Is In On July Bar Exams

What is the job of a law school? According to a front-page article in NY Times (Nov. 20, 2011), “What They Don’t Teach Law Students: Lawyering,” by David Segal, it is not to prepare graduates for the job of being a lawyer. One Philadelphia corporate law firm invests four months training new associates, without billing any hours. The new lawyers may know arcane 18th century forms of property titles, but they don’t know how to register a corporate merger.

So, if the law school’s job is not to train its graduates for the job, then surely the law school’s job must be to prepare its graduates for the bar exam, the exam they must pass in order to practice law.

Ask any law school graduate whether law school had anything to do with passing the bar exam and you are likely to be met by a cynical snigger. The more prestigious the law school, the less likely it is to sully its curriculum with any practical trade-school training, like how to pass the bar exam. As a matter of fact, the top tier of law schools that are accredited by the American Bar Association (ABA) are prohibited by ABA’s accreditation standards to include bar preparation in the curriculum.

About a dozen years ago – about ten years after the dot-com era created a brain drain from the law school applicant pool – the pass rates dropped precipitously in California ABA law schools. The ABA deans, a powerful interest group within the State Bar of California, blamed the State Bar for making the bar exam more difficult. The State Bar responded that the exam was exactly the same and was evaluated in the same way it had always been, and that the problem lay with the law schools. The schools were either dropping their entrance standards or their teaching standards.

This was quite a nasty spat for a while, sort of like the War of the Roses. But let’s leave the clash of titans for a while and step back and the larger law school ecosystem in the state. California has a rich history of gold-rush free-for-all capitalism. Its regulation of law schools can be seen as part of that tradition. Almost anyone can open a law school in California. We have ABA accredited law schools, that the national ABA sets the standards for, California accredited law schools, unaccredited schools with a physical location, unaccredited online schools. And graduates of all of these California institutions are qualified to sit for the California bar exam. Applicants can even qualify to take the bar exam without attending law school at all, if a judge or lawyer says that he trained the applicant for a period of years.

So it follows that the only eye of the needle that guarantees a competent lawyer is passing the bar exam, and that is why California’s bar exam is so difficult. It also follows that some of these lower-end schools would not have a high pass rate.

But the cream of the crop, an ABA law school in California, aware that the next necessary hurdle for all its graduates is passing the bar exam, what can possibly account for fully one-fourth of ABA graduates failing the bar exam?

Who is responsible for the mismatch between the exam and the education?
In the dozen years or so since this ABA school-State Bar spat, I have noticed a change in contents of the July bar exam.  Since nearly all law school graduates complete their education in May, most of them take the July bar exam. About seventy two percent of those taking the July bar are first-time takers, most likely freshly minted out of law school. In contrast the February bar is about seventy two percent repeat-takers.

So if the State Bar wanted to mollify the ABA law schools by ensuring decent pass rates for first time takers on the July bar, they could achieve this making the July exam cover minor, forgettable points of law that a new graduate would be more likely to remember and one several years out of law school would have forgotten.

For example on the July 2011 bar exam, the real property exam included a future interest land grant, a fee simple subject to condition subsequent. There is a lot of real life applicability of that issue! The Civil Procedure exam tested the relation-back doctrine, an issue changed substantially by the Supreme Court just last year. The Professional Responsibility exam tested on ethical violations of an attorney who did public-interest volunteer work to promote his clients’ interests—something that would never result in a real-life disciplinary action.

This brings my observations back around full circle to today’s NY Times article. What is the point of law school bloviating about two hundred year old legal concepts that have no practical use, and on the State Bar rewarding that nonsense by featuring those issues on the bar exam? Oh. It results in a healthy pass rate for first time takers and it raises the bar for repeaters impossibly high.  Seventy-six percent of first time ABA grads passed the July 2011 bar exam. Eighteen percent of repeaters passed.

On an exam that featured several issues that are not worth the brain space they take up after the last law school exam, the gap between first timers and repeaters was 58 percentage points – four times as many first timers passed as repeaters.

To be sure, there are other factors that play into the low repeater pass rate. Loss of confidence, lack of time off work or lack of resources, not taking a course, not fully committing to studying again, poor previous preparation.

But you only get one shot at taking the bar exam when you still remember all the crap you learned in law school. And if you don’t pass that time, you can never replicate all that detail for your later attempts.

Hey, at least the State Bar and the ABA schools are happy bedfellows once again. As they say in the casinos, the House always wins.

Hard Work Beats Genius in Passing the California Bar Exam

David Brooks, New York Times op ed columnist, had a column on the modern view of genius on Friday, May 1, 2009. (“Genius: The Modern View") I urge you to go and read it in its entirety. What he says is directly relevant to passing the California Bar Exam. I’m not implying that it takes a genius to pass the California Bar Exam, but, then, David Brooks himself is saying that it does not take a genius to be a genius.

Brooks starts by saying that some people believe that genius is the result of a divine spark and the genius club is a most exclusive one, limited to members like Dante, Mozart and Einstein.

But if you define genius in those terms, you are defining yourself out of the club. You are saying you are not a genius and could never be one.

Brooks rebuts the divine spark theory with one based on perseverance, hard work, mentors and self-confidence. That is exactly what my more than 25 years teaching California bar preparation have led me to conclude.

It was not so much that Mozart was a child prodigy that led to his success, Brooks says. “What Mozart had, we now believe, was the same thing Tiger Woods had—the ability to focus for long periods of time and a father intent on improving his skills. “ 

Let’s look at the ability to focus as a necessary trait for passing the California Bar Exam. I graduated from law school and passed three bar exams before the advent of the internet, so I developed my reading and concentration habits using books and libraries. I find that now even I, as I compose on my Mac, interrupt my train of thought to check my email and news blogs every couple of minutes. It is as if the 24/7 electronic access to information has given me, a Boomer fogey, ADHD. I have to laugh at myself, because just after I completed that last sentence, I checked The Huffington Post!

My point is that if the deep treads of my focus have been uprooted by the internet, imagine how much shorter are the attention spans of the people taking the bar exam now, who never knew a time without the internet. Focus? It has no more meaning to someone graduating from law school now than does the concept of shepardizing a case.

It may be that this is the new normal, but in the past thirty years I have seen the bar exam replace open ended essay questions with ones that have interrogatories identifying the issues. I have seen performance tests shrink in length from 60 pages to 40, and from having as many as five cases in the library to having at most two or three. The Bar Examiners would never say it, but I believe they are responding to the reality of decreased attention span and decreased reading comprehension. (I almost punctuated the ending of that paragraph with another break to a news blog, but I fought the impulse.)

Anybody who has studied for the California Bar Exam is aware that there is a massive amount of information to learn, digest, and employ in essays and multiple choice responses. What are the available aids for this undertaking? Robotic videotaped and audio recordings that enable the student’s brain to snooze after only a few minutes. Law outlines that are just that, outlines. Outlines are chopped up bits of information. The format does not lend itself to sustained concentration. Practice multistate questions where one is encouraged to speed on every 1.7 minutes, substituting speed for understanding. 

The upshot is that it would be great if I could say, “Focus” and bar applicants would get it and be able to do it. But they are not wired that way, any more than I could expect my cat to fetch.

Back to David Brooks’ Mozart. He also had a father that was intent on improving his skills. A blessed few have parents who provide an example of discipline. It would be great if bar courses provided mentors who helped students to focus. But most courses I know of expect the student to know how to focus on their own. And, worse, the courses do not provide study materials that enforce focus. I need a gym instructor counting out sit ups or I won’t do them. Most people need a bar coach to set rules on time to enforce focus. This requires a degree of personal attention that few people studying for the California Bar Exam get.

Brooks goes on to say that the key factor in success is not talent, it is deliberate practice. Woe to the beleaguered law graduate, who follows the lemmings and takes a survey bar course for the California Bar Exam. He is misled into believing he should spend two months gorging on the law, leaving scarce time for practice. And then, having failed, he studies the law harder and still does not practice. He may practice multi states, because there are answers he can check. But it is a rare student who practices constructing fully reasoned essays under timed conditions. Even if he does, he does not have correct answers to check himself against. The Bar does not publish correct answers, only sample student answers. Nor does any course write its own answers, except mine, The Writing Edge. It can get discouraging to spend all that effort practicing and not knowing if you are right or are improving.

And that goes double for the Performance Test. Most people believe that practicing taking that test is as worthless as driving around without a map. They don’t know what they are looking for. They don’t know why the published answers passed. They have no game plan at all.

Not surprisingly, the reason the majority of people fail the California bar exam is failing performance tests—the part of the exam they do not practice. There is more explanation than that, though. Bar courses, even those claiming to specialize in the PT, do not give a clear, consistent approach that students can follow and that will work on every PT. Students who have taken several bar exams see inconsistent results on the PTs—a 70 one time, a 55 another. They get frustrated and see no point in wasting time practicing for the PT exam.

I love the performance test and am confident that I have them figured out. I teach my class how to find the issues, the case rules and how to take the time to organize this information to maximize reasoning, which is what gets high PT scores. And I enforce practice. Students fully take at least eight performance tests.

The last ingredient Brooks cites is a constant stream of feedback.  He calls this the error focus. I give my students detailed, some might say nit-picking, feedback on their essays and PT’s. I let them know all their errors in law, organization, time management and reasoning. And I encourage practicing rewriting the same exams over again, thus imprinting the new correct way.

I have been teaching this way in The Writing Edge for over 25 years. I was thrilled to read David Brooks’ column and see that he is saying what I have been doing. He concludes by saying, “We construct ourselves through behavior.” I believe in that and I believe that anyone can pass the California Bar Exam with perseverance, practice, focus, hard work and the right mentor.

Please see another article by Vivian Dempsey below

Straight talk
about bar

Scaling—the actual nuts and bolts of how you receive the four-digit score--is not understandable by mere mortals. An explanation by the psychometrician who invented it may help. Steven Klein, who also came up with the cure to this winter’s problems, explained scaling to me in 1999, for The Recorder. It is reprinted on my website, “Why the Pass Rate is So Low, Explaining the Inexplicable.

to know

Chances are, you won’t master scaling, but here are more practical things to know about the bar grading that can actually help you to pass the next bar:

There is no minimum required mbe score. Nor do essay graders know your mbe score! Points from all three parts of the exam are added together to achieve a total score. The points can come from any part of the exam. As a matter of fact, the multistate can’t contribute any more than 35% of your total scaled score, because the multistate raw score is multiplied by .35 when it is scaled. The written portion (essays and PT’s) contribute 65% of your scaled score. Since your total score comes one-third from the mbe and two-thirds from the written portions, you have to add twice as many points to your mbe score to pass than to your written score.

Why do people keep working on their mbe’s instead of their written exams? People feel more in control of their mbe score. They can understand the scoring and reasoning. Also, they know mbe law because that’s what courses teach. California’s essay law is a different body of law that employs different memory skills. Mbe law is vague recognition knowledge. You need to know essay law in much more detail and to be able to recite test elements.

Reread danger

The score you need to guarantee passing the bar is 1440. But the danger of re-read still exists for exams that fall short. When the total scaled score for an exam is from 1390 to 1339.999, each essay and performance test exam is graded a second time. The grader who is doing the second-read is not the same person who graded it the first time. But the second grader and the first grader were part of the same group who trained to grade that particular essay or PT. This is called calibration. The goal of calibration is that graders should not disagree about what score to give by more than five points.

In Phase II grading, the first grade and the second grade are averaged, and that average is the score. After all essays and performance tests have received a second grading, That score is again calculated with the multistate score and scaled. If the total scaled score is 1440 or above, the exam passes. Under the former grading policy, about seventy-five percent of the exams in second grading failed the bar. This percent is likely to be higher now. This is because re-grading used to include exams that received an initial score of up to 1465. Those exams would simply pass on first reading now. So the exams most likely to pass in second read, those with scores of 1440 to 1465, are not re-graded any more—and it was probably those exams that accounted for the 25% that passed on second reading.

If a given exam answer receives two grades that vary by more than ten points after Phase II, that exam answer will be graded a third time by an experienced grader who led the calibration sessions on that exam question. This third grading, or Phase III, will be the score for that exam answer. The Phase III grader is not constrained by either of the previous scores that exam received. Using the third score for that exam answer, if the applicant’s total scaled score is 1440 or above, he or she passes.

The State Bar will automatically send failing exams back to applicants along with all scores the exam received.

So, on one hand the new grading is fairer in that:
• 1440 really is a pass
• All scores the exams received will be released to applicants
• Every grader evaluating an exam was calibrated to grade that exam.

On the other hand, the new grading may be less fair in that:
• Ten-point differences in the score an essay or PT gets are too great a discrepancy and are outside of the Bar’s stated goal that all graders should agree within five points of one another.
• No third chance is given to an applicant’s exam as a whole. As there was in reappraisal, under the old grading policy. The problem is we do not know whether the third chance ever actually changed a failing exam into a passing exam.

The reason exams in re-read ultimately fail the bar exam is the performance test. That is unlikely to change under the new grading regime.
Test anxiety

The performance test is the reason the majority of exams in re-read fail the bar. Of the exams that make it into re-read, the majority fail because of the performance test. People feel the least amount of control over this part of the exam and have no idea how to improve them. One applicant believed she failed a PT because she didn’t have headings! People know what the Bar is looking for on the PT’s because the courses they took don’t know.

So most people crumple-up and throw away the 26% of the exam PT’s are worth. Getting a 110 on a PT (equal to getting two essays graded 55) or 100 (two essays graded 50) sink your chances of passing. Instead of the myth that you need a certain minimum mbe score, the truth is you’ll fail the bar unless you do well on the performance tests.

If the PT is why exams fail, you must find someone who can tell you what the Bar is looking for and how the PT’s are graded. I have taken the PT exam for the State Bar when the exam was being developed and then I was a Bar grader of PT’s. I know how the PT is designed, as well as what graders are looking for. With the PT technique I give you, you can routinely get great PT scores. Instead of believing PT scores are a roll of the dice, you’ll understand the exam, what the graders are looking for and get 150’s and 160’s.

No model

The Bar does not publish “model” answers. The Bar does not say the answers it publishes are perfect or correct, only that they passed. You cannot rely on these answers to improve your writing or reasoning. The same goes for the so-called model answers courses publish, which closely resemble the Bar’s answers. Generally, the more times you’ve taken the bar exam, the more confused you become about what it takes to pass. It can drive you crazy comparing so-called model answers and trying to figure out what’s right about them and what they got credit for.

Here is re-read hell in a nutshell: It is almost impossible to improve your essays or PT’s on your own because there are simply no reliable model answers. I give you accurate answers, and I make sure you understand what gets you points. Check my answers to the recent bar exam on my website. Compare them to the other answers you see in this newspaper (written by bar courses and law professors). Which answers stress reasoning and organization? In The Writing Edge, I give you about 200 essay and 17 PT answers and I myself have written all the answers. I explain these answers to you, why they are good, why they would receive a high pass. I’ll also explain the answers on the winter bar exam to you in a free introductory session.

pays off

Essays and PT’s pass because of reasoning. When you only know the law vaguely, you cannot reason well about it. I pinpoint the law to master for the essay exam, law you need to know so well you can name the test elements of each issue. I tell you exactly what happens in those exam grading sessions. I tell you exactly how the graders think and what they are looking for. When you know what to improve on your essays and PTs, then you can learn how to improve. Then the key is to take practice exams over and over and over again. I give you expert feedback, not only on your writing, but also on your reasoning. You can pass this exam, once you know how to improve the parts of the exam worth two-thirds of the points!

The Writing Edge is not for everyone. It is for serious, committed people who are able to focus on passing the bar this July. I take attorney-bar applicants and repeaters who have taken a basic bar course and who either: (1) got 120 or better raw score on their mbe and who can study four hours a day and both weekend days or (2) can take off two months to study full time. I tell you the truth. My grading is honest. I give you extensive detailed timely feedback on your writing. When you are in my course, I have no other job and no other motive but to see you pass the bar exam. I hold you to a high standard of accountability and make you work hard. Call me for more information. But do it today. Classes start this weekend and class size is strictly limited. Vivian Dempsey (800) 949 7277.

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