With the Florida bar exam a mere 30 days away, now is the time to really memorize law. Every year I receive e-mails asking me what subjects do I think are going to be tested on the Florida bar exam. There is no responsible way for me to respond because my prognostications are never 100% accurate. I always tell students to study like EVERYTHING is going to be tested on the Florida bar exam. That way, you won't be disappointed with me when the test is over.
However, there is one area of law that I can guarantee will appear on the Florida bar exam essays. I am referring to ethics or as the 2016 Florida Bar Review refers to this topic - Florida Professional Responsibility and Florida Professionalism. In other words, the Florida Board of Bar Examiners wants to see from your essay answers if you possess the ability to not only think like a lawyer but behave like one as well.
If you review recent essay questions from Florida bar exams, you will see how frequently ethics is tested. The February 2016 bar exam asked you to discuss ethical considerations in essay questions 1 and 3. The July 2015 Florida bar exam had an attorney ethics component in all 3 essay questions.
I know that the last month of studying for an important exam such as the Florida bar exam can be stressful and overwhelming. There is so much information being thrown at you by commercial bar courses. It can be daunting to reach a point where you feel prepared for this test. This is a natural emotion to have.
Attorneys must self regulate their behavior and the Florida Board of Bar Examiners expects you to know when an action is ethical or unethical. Understanding your responsibilities as a lawyer to your client, court, and society is imperative. Take the time to focus on professional ethics in your bar studies and that work will pay off for you on the exam.
My 1L year in law school was a harsh, brutal learning experience. Admittedly, I struggled to ascertain how to write law school exam essay answers that earned "A"s rather than the "B"s and "B+"s I was receiving. Whereas I was surrounded by classmates who had parents or significant others who were attorneys or judges, I knew no one in the legal profession. I was clueless as to how to think like a lawyer.
During the summer after my 1L year in law school, I took a class with Richard Michael Fischl. He suggested that I read his book, Getting to Maybe to improve my essay writing skills. I sought out a copy on Amazon and when it arrived, I spent the better part of a week reading and absorbing the book's wisdom. This book helped me improve my GPA by almost one letter grade. If you are struggling with writing passing essays on the bar exam, then you might want to get this book.
So many bar exam essay questions are open-ended, asking the examinee to analyze the problem whilst considering the potential of multiple outcomes based on the fact pattern. Yet, so many bar examinees only write about one "fork" of the problem, leaving others unmentioned. This is a surefire way to achieve a failing score on an essay.
Let me provide you with a basic example of how stress and time constraints, coupled with inadequate preparation, can cause an examinee to miss certain points to discuss on a bar exam essay. Say for example you encounter a criminal law/criminal procedure/evidence crossover essay question concerning the admissibility of a gun used during the commission of a crime. It would be inadvisable to only write an answer containing analysis and a conclusion that the gun is inadmissible because of the exclusionary rule. The better essay answer would argue both sides of whether the gun is admissible, discussing limitations on the exclusionary rule, the 4th Amendment, and any other pertinent law. This is how you demonstrate your ability to think like a lawyer.
My entire first year of law school consisted of me writing "binary" answers on law school exam essays. I always wrote about whether something was admissible or not. I never discussed both possibilities in my answers and I paid dearly for this foolishness. Professor Fischl's book trained me to think about the "forks" in law school exam fact patterns and how to write my answer accordingly.
Of course, not every bar exam essay requires you to think like this. If you encounter a contracts essay question concerning the sale of widgets, you would be wasting valuable time spending 10 minutes on why the common law might apply. Furthermore, it might not be prudent to pick up Getting to Maybe with the bar exam only a month away. However, if you are feeling unsure about your writing habits, this book might be worth your effort to skim for helpful tips. I know it helped me immensely.
Hi everyone. Due to recent events in my neighborhood of Orlando, the blog has been quiet. The last seven days have been tough for Orlando. Just last night, a two year-old lost his life not ten minutes from my office - to an alligator!
In the coming days, there will be several blog posts addressing the Florida and California bar exams. Thank you for your patience and pray for Orlando.
I receive so many questions about how to prepare for the Florida bar exam's 100 multiple-choice questions on the first day. They make taking this exam somewhat challenging. Yes, Texas has the Procedure and Evidence questions and New York has the New York Law Exam. However, neither can induce the same type of headache produced by these Florida questions.
The Florida multiple-choice questions are a very important component of the exam and they should not be overlooked during your studies. Countless students have told me over the years how they barely studied for this part of the test, deciding to concentrate solely on the Florida essays and the MBE. This is foolish and I do not recommend this strategy.
The Florida Board of Bar Examiners explicitly state in their study guide multiple-choice examination instructions that the three afternoon segments count the same as the morning ones. Therefore, why would anyone only prepare for one-half of a day of testing? That's exam suicide! I recommend that examinees explore all of the study guides found here to fully understand what they might encounter over day 1 of the Florida bar exam.
The Florida multiple-choice questions has 3 segments. Segment 1 ALWAYS test the Florida Rules of Civil and Criminal Procedure. ALWAYS. If you don't like surprises on exams, then you should feel relieved to know that you can expect approximately 33 questions on these subjects. Segments 2 and 3 can be any combination of the following 3 subjects: (1) Business Entities, (2) Evidence, and (3) Wills and Administrations of Estates. To complicate things further, a particular testing might include a majority of questions under a subject focusing on a specific area such as partnerships or hearsay.
The Florida study guide contains two important sentences telling you what kinds of questions you might encounter on this portion of the exam: "Some of the multiple-choice items on the Florida prepared portion of the examination will include a performance component. Applicants will be required to read and apply a portion of actual Florida rules of procedure, statutes and/or court opinions that will be included in the text of the question." This performance component of some questions is what can add to the afternoon fatigue caused by the multiple-choice questions.
Making your brain spin further is that many of the questions are not entirely straightforward with the correct answers. For example, you may have studied Florida civil procedure from your commercial bar review outlines and then encounter a multiple-choice question on the first day where both a plaintiff and defendant enter motions for summary judgment after the closing of pleadings. The question asks you to select the "correct statement" followed by several choices that might look appealing to you, especially if you are not 100% confident in your knowledge of Florida civil procedure. You will, in some cases, have to organize bar outline knowledge in your head to select the correct answer. This is not unlike the skills you must refine to answer some questions on the MBE.
In some instances, the Florida multiple-choice exam will ask you to make a decision on one question that affects your answer on another question, For example, a question might test a Florida/FRE distinction on former testimony. Should you answer incorrectly on one question, the odds are you will get the second question wrong as well. Therefore, it is highly recommended that you master the distinctions between the FRE and Florida rules in Evidence, as well as distinctions unique to Florida civil and criminal procedure.
People often ask me what is the best resource for practicing Florida multiple-choice questions. Other than the Florida Board of Examiner's study guides, I recommend procuring Barbri's Florida Testing Volume I & II. These two books can be found used on Amazon, eBay, and Craigslist. They contain great practice questions for each subject and it is worth your time to do every question for each subject. I have not review the Kaplan or Themis Florida multiple-choice questions but I have had some examinees tell me that they liked the Kaplan questions as well.
Barbri's questions are particularly useful for practicing the difference between per stirpes and per capita distributions in a Wills and Administrations of Estates question. Ultimately, even Barbri's questions cannot properly simulate everything you will see on this part of the Florida bar exam. Some of the actual questions are quite challenging and I have never encountered a commercial bar review that properly simulated their style and level of difficulty. So what can you do to maximize your preparations?
I tell students that the most simple way to prepare is to memorize "numbers and lists." For example, when conceptualizing deadlines in Florida civil procedure, memorize the number of days for timeliness of service or waiver or service. I made flashcards for this purpose and I was not surprised to see some of these numbers tested on the actual exam. Same for lists - memorize things like the permitted endings for Limited Liability Partnerships.
Lastly, mastering the material in your outlines will help you to raise your scores on the multiple-choice segments. I always tell students that the Florida multiple-choice is about damage control. You want to avoid missing those questions that should be "gimmes." PaulLaw's 2016 Florida Bar Exam Review does a good job of distinguishing between Florida and federal law where applicable in critical subjects such as Evidence.
Overall, the material you need to master to do well on the Florida multiple-choice questions is not mysterious. Anyone can obtain a passing knowledge, but in many instances, you will have to manipulate this information and commit to proper application to correctly answer questions. Just as some MBE questions lack straightforward "obvious" answers, the Florida multiple-choice questions demand that examinees use their lawyerly reasoning skills to choose the correct answer. You can be successful on this exam with good outlines and a decent selection of practice questions.
Good luck in your studies!
Continuing my discussion of health and bar exam study, I offer the following suggestion: if you are thinking of quitting a habit during your bar exam studies, don't do it. While I do not condone bad habits such as smoking, you have too much at stake during these crucial months to undertake such a huge lifestyle change.
I think it was Richard Freer in a Barbri lecture that commented if you smoke pot, do not decide to quit leading up to the bar exam. You will not be focused on the task of studying for the bar exam. You will be thinking about how you miss smoking marijuana.
Likewise, the months leading up to the bar exam are not the time to enter into a new relationship with a significant other or break up from someone. A positive mental state is important during this period.
A singular focus on passing the bar exam is imperative. If smoking cigarettes help you to concentrate on lectures or study outlines, then continue to smoke. You can concentrate on kicking the habit after the bar exam. You can make a stronger effort to quit after you take and pass one of the most stressful exams you will ever take.
Undoubtedly, some of you spent your law school years getting much less than 8 hours of sleep nightly. Between the homework and social activities, law school can teach anyone how to survive on little sleep. However, this routine is not recommended during your bar preparations, and definitely not for the week of the actual test.
Researchers in Germany found that students who slept seven hours a night during exams scored nearly 10 percent higher on tests than those students who got less sleep. You can read their findings here.
Researchers have also discovered that optimal performance on exams means finding a sleeping pattern that has you waking up around test time every day for a week or so in advance, thereby allowing your biological clock to acclimate to the test day schedule. This is especially important if, for example, you live in Washington D.C., but you are taking the California bar exam. You should devote at least a week before the exam waking up three hours earlier to align your biological clock to your new time zone.
Most importantly, good sleep and deep learning are crucial in the months leading up to the actual bar exam. Do not decide that you're going to cram learning the intricacies of the Statute of Frauds the night before the MBE. Deep learning requires an intensive commitment to learning material well before the exam, This way, you can review the night before the test and still achieve a proper night's rest.
Over the past 10 years, I've heard it all - examinees tell me about how they stayed up all night studying, too nervous or lacking in knowledge or confidence to submit to sleep. In almost every case, they failed the bar exam. The same goes for the night before the MBE. People tell me how they did 100 questions the night before the test, leaving them exhausted for the 200 question marathon the next day.
Folks, if you do not know a particular area of law tested on the bar exam the night before the exam, review your materials and force yourself to sleep seven to eight hours. There will be plenty of legal concepts that seem tenuous in your mind the day of the exam - this is natural for most people. Your best strategy is to let it go, understand you've done everything you could to prepare, and make it your goal to get a good night's sleep.
On Friday, May 13, the State Bar of California released the results for the February 2016
bar exam. 35.7 percent of the applicants passed the February 2016 General Bar Exam.
This is actually a lower pass rate than February 2015. in fact, you have to go back to
February 2010 to find a lower percentage passing. What's really disconcerting is that
the total number of examinees taking the February 2016 General Bar Exam was lower
than in February 2015.
43.1 percent of those taking the February 2016 Attorney's Exam passed. This is a few
percentage points lower than last February but once again, there were less attorneys
taking the exam this past February.
Fortunately for you first-timers, the July testing consistently produces higher pass rates. However, don't expect 60%+ passing. The last time that happened was in July 2008 during the infamous earthquake bar exam where scores were adjusted in some cases due to an earthquake that shook Southern California on day one of the bar exam.
When you're fresh out of law school and saddled with student loan debt, money can be tight; especially when you're not working.
For most, opting to pay for a commercial bar review course is a no-brainer. They've paid their deposit on the course since their 1L year.
However, if you've decided to forego paying thousands of dollars to a commercial bar review company, there are some things you can do to study smart for little or no money.
Fortunately, there is one inexpensive way to prepare for bar exam essays. Chances are, your state bar's website publishes past essays and model answers. There are enormous benefits to reviewing these materials.
If you are taking the California bar exam, past essays and performance tests can be found here. The Florida bar has an extensive collection of past essays dating to July 2003 that can be found here. Texas questions and answers can be found here.
The usefulness of past essays and performance tests is obvious - you can see exactly what a jurisdiction tested on a prior exam. In many cases, you will see patterns develop as to what topics are touched upon in essays. For example, if you encounter a past California community property essay, there is a good chance (although not a certainty) that you will have to discuss Van Camp and Pereira. There was actually a California community property essay a few years back where a spouse started a business during the marriage so Van Camp and Pereira did not apply (see February 2003 Essay #6).
Likewise, past Florida essays focused on topics that reoccur rather frequently on exams. For example, a Florida Constitutional Law essay might beg you to discuss the Homestead property exemption. Once you read enough of these essays, you begin to see patterns form in terms of what material is tested.
However, the usefulness of model answers from past essays is less clear. In California, the model essays might be intimidating. Some of them are rather long and you might ask yourself as you read them, "How did anyone find the time to type all of this?" Contrast this with Florida's model answers where you can find numerous misstatements of black letter law. So how should the average person preparing for the bar exam use these model answers?
For the California bar exam, model answers can serve as motivational tools for how to write a passing essay. Beyond their length, you will see that the answers selected to be printed are rather complete in their discussion of the essay subject. Where there is an ambiguity, multiple outcomes are discussed. In a jurisdiction such as California where bar graders value analysis in essay answers, you can benefit from reading two examples per essay of what good analysis looks like.
California model answers can also help you improve your issue spotting skills. It is very helpful to read past essay questions, then write or type out your answers to them before reviewing the model answers. Afterwards, you can see if you missed discussing Lucas and Anti-Lucas on a particular community property essay or a purchase money resulting trust on a trusts essay. Passing performance on the California bar exam's essays involves discussing a myriad of topics in a given subject and if you miss one or two of these in your answer, you could be looking at failure. Therefore, use the model essay answers to hone your issue spotting when it matters.
Florida model answers are great for issue spotting. The benefit to reading many model essay answers in preparation for the Florida bar exam is that you can really refine your issue spotting capabilities. I still remember spending hours with a group of friends going over all of the past Florida essays to practice spotting issues. The Florida model answers can also be of value for their analysis but you have to be aware that the Florida bar does not edit these essays so some of them contain typos and incorrect statements of law.
I truly believe that there is immense value in taking the time to review past essays on bar exams. American Transcendentalists such as Ralph Waldo Emerson spoke at length about the necessity to grasp the past as a guide to the future. If you can develop an understanding of what your state's bar exam has tested, then you will be better prepared for your own experience in July. And besides, it costs nothing but your time to gain this insight.
There are so many pearls of wisdom about the different ways that people prepare for success on the Multistate Bar Exam. I thought it might be appropriate to discuss some of them. As I always state, people learn differently and a method that works for you might not be appropriate for someone else. Let's examine the different ways, shall we?
How To Read The Question
Although I cannot remember how the big commercial bar review courses suggest that you read each question, I've had countless discussions with lawyers about the most appropriate method. I'll discuss a few of them here.
The most obvious way to handle MBE questions is by reading the fact pattern and then choosing from the answers. For many people, this method will work just fine. However, there are some reasons for using another method - you may read slowly, carelessly, etc.. In those cases, you might consider reading the answer choices first.
Reading the answer choices first has several advantages. Most importantly, reading through the answer choices will give you invaluable insight as to the subject of the question. I cannot tell you how many times I started reading a lengthy MBE fact pattern and inferred from the first few sentences that the question was a criminal law or real property question and then the call of the question asked me about constitutional law. Had I known what subject I needed to filter the fact pattern through, I might not have wasted time by re-reading a fact pattern.
Another advantage to reading the call of the question and answer choices first is that you can cherry pick pertinent language in the fact pattern to focus on. For example, if you know that a question is about evidentiary privileges, you can read the fact pattern and determine which spousal privilege applies (the communications privilege or the testimonial privilege) and select the appropriate answer. Often times, the MBE will test your knowledge of distinctions and there will be two questions on that distinction on either the AM or PM session so that if you make the wrong choice on one, you've actually gotten two incorrect questions. If you have a tendency to do this, you might consider not only fortifying your knowledge of black letter law but also reading questions differently.
Some examinees read the fact pattern, then read the call of the question, then read the fact pattern again. If you are a fast reader and feel that a second read is necessary, this strategy might be for you. Other people read the call of the question, then the fact pattern, and then the call and answer choices. There is merit to this method as well because you really get a sense of what the NCBE is looking for in this question.
Whatever your reading method is, decide early enough in your studies so that it sticks with you in July. You do not want to experiment with how you read an MBE question in the middle of July. Find what works for you now and refine the technique.
To Mark Up A Fact Pattern Or Not?
Some people swear that underlying pertinent words in a fact pattern helps them to make answer choices. There is some merit to this technique, especially if you find yourself constantly getting tricked on MBE questions or you simply do not read as carefully as you should.
Underlining allows your mind to slow down for a few seconds to process what the fact pattern is implying you to solve. Ask yourself, "Why is this word or set of words in this fact pattern?" There might be a word that clarifies whether a person is a licensee or invitee in a torts question. The NCBE is not in the business of creating MBE questions with multiple correct answers. Therefore, it is your job to determine what is the best answer. If this means you need to underline specific words or sentences to make the correct choice, then by all means do so.
The Bubble Problem
If you've taken multiple choice tests long enough, you probably know someone who mis-bubbled their answers on a Scantron causing them to fail the exam. This happens on the MBE more than most people would like to admit. When you are in a pressure-filled situation in a room with hundreds of stressed, nervous people, you can make this kind of mistake.
It has been advocated that to avoid the bubble problem, you should circle your answers in the booklet and then transfer them at the end of the exam. However, there are some obvious pitfalls to this strategy which deserve mentioning.
For starters, if you are slow on the MBE and you find yourself running out of time, you will not have time to bubble in your answers on the answer sheet. This would be a mistake that would almost certainly seal your failure on the bar exam. A potential work-around to this problem would be to bubble in your answers every 20-50 questions. I personally decided early on to read and answer 50 questions each sessions, circling the answers in my booklet. Then, after approximately 1 hour and 20 minutes, I would stop and carefully transfer my answers to the answer sheet. Although my process is not for everyone, it worked for me. I never mis-bubbled an answer sheet.
Gauging The Questions
It is difficult to gauge your performance in the moment during one of the most stressful exams of your life. However, I did develop a system of annotation in my test booklets based on advice from bar tutors that allowed me to identify, revisit, and revise MBE questions before committing to bubbling the answers on the answer sheet.
When I circled answers in my test booklets before transferring them, I marked questions in my booklet with a "?" where I was not certain of the correct answer. Additionally, I circled two answers in my booklet where I was uncertain of the correct choice but whittled down the correct answer to one of two choices. Then, during my review before transferring, I would make a final decision on what I thought was the correct answer. Doing this provided with me data and perspective as to how I performed on the MBE.
As a general rule for me, I view MBE questions as belonging to one of four categories. Out of 200 questions, 10 are experimental questions. The remaining 190 questions are roughly distributed in 3 categories: 33% are gimme questions, 33% are 50-50 questions, and 33% are wtf questions.
A gimme question is an MBE question that your average examinee should know the correct answer to without much deliberation. It is difficult for me to describe a gimme question other than by saying that you'll know it when you see it.
The 50-50 questions are those MBE questions where two answers look really good to you. This may be because you don't know a legal distinction as well as you should or the question is really asking you to select the best answer and two answers look good. There are a myriad of reasons as to why someone might focus on two answers and I will address them in another post. However, for now, you need to be aware of the 50-50 question.
Lastly, the wtf question is an MBE question that makes your head spin. It might test some obscure part of the Fair Housing Act in a constitutional law fact pattern. It might be some real property issue your bar outlines completely omitted. Whatever the case, you see this question and no answers stand out to you.
Your percentage of correct answers on gimme questions, 50-50s, and wtfs will depend on your knowledge of the law, your multiple choice test skills, and various other factors. Whatever your situation, you should be able to recognize an obviously easy gimme question versus one that you have whittled the answer down to two options.
How To Treat Practice MBE Questions
All of the big commercial bar review courses have their own MBE practice questions. And each of these companies' questions have their strengths and weaknesses. Whatever questions you use to study, how do you use them in your studies?
If you're like me, you do 50-100 practice questions, then review the answers, paying particular attention to the ones you missed. However, there is a competing theory that rather than devoting an inordinate amount of time on the questions you missed, you should focus on WHY you got a question correct.
The ideal review of practice MBE questions would focus on all of the questions, wrong and right. However, with study time at a premium, often this is not possible. Understanding why you got a question wrong is important because it will inform you what areas of law you are weak in. Reviewing your correct answers can eliminate the need to do more practice questions in a given area, thereby saving you some study time.
Whatever your study habits and skill set, you have to figure out the techniques that work for you. The goal is to pass the bar exam so you need to determine what MBE score will permit you do achieve this. Every reputable bar review course will provide you with this information so that you can set numerical goals during your studies.
There are so many different ways to approach the MBE. Some people are confident, bordering cocky in their studies. For them, a 160 or 170 scaled is a mere formality. For most people, a combination of doing 50 to 7o practice questions daily on top of rigorous study of the law is necessary. This blog post is merely a conversation starter to get you thinking about what is the best way for you to succeed in July. I sincerely wish you the best in your MBE studies!
If then end of law school is near, you are most likely finished or nearing completion of your law school exams. Looking past cocktail parties, family obligations, and graduation ceremonies, in less than a month, many of you will receive a huge box in the mail from Barbri or Kaplan or Themis with lots of books for your summer bar studies. This can be intimidating and over the years, I've fielded my fair share of nervous requests for advice on how to proceed.
When I was a 3L in law school, I studied nothing but tax. I arranged my courseload during my second year so that I could pursue an LL.M. in tax during my third year. My 3L second semester was brutal - filled with time-consuming classes such as inbound and outbound taxation, consolidation returns, and international tax treaties. After I graduated in May, I was stuck in a funk. My whole life was focused on tax. I could not recalibrate to study torts, contracts, constitutional law, criminal law, property, and especially evidence. If you are anything like I was, your 3L endeavors might make it difficult to revisit concepts from your first year of law school.
My biggest piece of advice for those new to studying for a bar exam is to treat it like a job. After graduation and the family leaves to return home, you need to begin studying for your exam. Aim for 8 hour days, especially if you are preparing for the California or Florida bar exams. Of course, there will be those who will say that you can get by studying 3-4 hours a day, 5 days a week. While this is certainly true in a limited number of cases, if this turns out to not be true for your individual circumstances, you will be back in a large room typing away in February with everybody else who failed in July. The point is: don't let overconfidence or laziness prevent you from achieving your goal.
There are some with personal situations that make 8 hours of study per day prohibitive. These people may have small children or jobs or another situation which takes a significant chunk of their time. If this is you, then you need to study when you can apportion time. If the baby is asleep, study. If you're at work on a break, bust out your Conviser and read it. Never regret downtime that you didn't use wisely to study for the bar exam.
If you had a robust social life in law school, then you probably want to curtail it during the summer. If you want a good example of what could happen, watch A Lawyer Walks Into a Bar. There is a UCLA law grad in this documentary who foregoes her studying to socialize. Furthermore, she is arrogant in regards to her knowledge of law on the California bar exam. Needless to say, she re-takes (and passed) the California bar exam.
Lastly, if you've paid thousands of dollars for a commercial bar review course, then get the most out of it. This means, listening to the lectures, doing the exercises, and write the essays to be graded. Having feedback from professionals during your summer will give you a way to gauge your progress.
I wish everyone a productive summer. Feel free to contact me if you have any questions at email@example.com.
The results from the February 2016 administration of the Florida bar exam are in and they are not pretty. Overall, 830 people took the bar exam and 485 passed for a 58.4% pass rate. This is down from last February where 831 took the exam and 534 passed for a 64.3% pass rate.
Law schools with the best performing students include Florida International University which bested everyone with an 84.6% pass rate as well as Nova Southeastern and Florida State.
Losers include the University of Miami, the University of Florida, and Stetson with pass rates in the mid-50%. The decline has been especially pronounced for Stetson, long-known for having some of the highest pass rates of any law school in Florida.
Interestingly, there is one law school that used to employ my Florida Bar Exam Review in their bar review course for their students and experienced a significant jump in their pass rate during past testings. However, they abandoned the use of my outlines and their pass rate has sunk again to the near bottom for Florida law schools.
The full results are blow:
# Taking # Passing % Passing
Florida International University 26 22 84.6
Nova Southeastern 31 24 75.0
Florida State University 21 15 71.4
Florida A&M University 23 13 56.5
University of Florida 16 9 56.3
Stetson University 45 24 53.3
University of Miami 32 17 53.1
Ave Maria 17 9 52.9
St. Thomas 26 11 42.3
Barry University 64 23 35.9
Florida Coastal 49 16 32.7
Non-Florida law schools 193 93 48.2
Admitted to the Practice of Law 286 209 73.1
Totals 830 485 58.4
In an article published by the ABA, Erica Moeser, president of the National Conference of Bar Examiners, confirmed that the mean scaled score on the February administration of the Multistate Bar Examination fell to 135. It was down 1.2 points from the previous year and the lowest average score for a February MBE in 33 years.
Even though the overall number of test-takers increased this year, the drop in the mean scaled score is alarming. The trend has been to attribute the drop in MBE numbers to law schools accepting students with lower LSAT scores. While there is probably some correlation there, very few are talking about how difficult the MBE has become.
Even before adding Civil Procedure as a subject, the MBE was becoming increasingly difficult. Either law schools or commercial bar review courses (or both) are failing to prepare law school graduates for this exam. Perhaps it is, as the ABA likes to assert, the quality of the examinees that has led to the decline.
The timely application deadline to take the July 2016 California bar exam is quickly approaching. As we near April 1st, let's discuss some strategies for being successful in July.
Know Thy Enemy
Without question, California has the most expensive bar prep programs I have encountered. Private tutors and specialty courses can easily set you back $10,000. Granted, the California bar exam is challenging and some people need extra help. But for the vast majority of people taking the California exam, you can pass by studying smart.
First, you should look at prior California essays and performance tests. You can find past examples for free here. If you spend enough time reviewing old essay questions, you will notice patterns. For example, if you encounter a Community Property essay question, the chances are good that you will have to write about whether Van Camp and Pereira apply.
The same goes for performance tests. What type of writing the performance test requires you to draft is somewhat predictable. Barbri and other reputable bar review courses will tell you how many times each type of essay/performance test has appeared on the California bar exam. But nothing beats the price and experience of discovering for yourself the patterns on this exam.
Take the Attorney's Exam
The California Bar states, "Attorney applicants admitted to practice law in any United States jurisdiction, possession, territory, or dependency the United States hereafter acquires may take the Attorneys' Examination provided that he or she has been an active member in good standing for at least four years immediately preceding the first day of the administration of the California Bar Examination for which the applicant applied. Attorneys admitted in other jurisdictions less than four years must take and those admitted four or more years may elect to take the General Bar Examination."
There are some significant advantages to taking the Attorney's Exam versus taking the General Bar Exam. Most obvious is that you only have two days of testing rather than three. If you tend to score higher on essays/performance tests than on the MBE, then maybe this is for you.
Applicants generally find the writing required on the California bar exam to be more of a problem than the MBE. However, if you've been out of bar study mode for years or you work 60 + hours a week at your firm in some other state, perhaps you might want to pick up a Conviser book and a PaulLaw outline and try to memorize talking points for the written portion.
I took the Attorney's Exam and I found the day in between writing days to be refreshing. When everybody else was in the Ontario Convention Center banging their heads on MBE questions, I was relaxing in my hotel room. reviewing outlines and taking it easy. Removing that middle day stress was huge for me.
Take a Typing Course
I never took typing in school so I was at a serious disadvantage in law school. My speedy hunt-and-peck method of typing only took me so far. On the California bar exam, you need to type fast. The essays and performance tests require lots of writing. I don't care what Adachi and others say - yes, you can write a passing essay that is much shorter but it is a crapshoot to think that writing 1000 to 2000 words less than the people surrounding you is going to lead to a passing score.
Just look at the model answers on the California bar exam website. Some of these answers are mini-books. The truth is the busy lawyer who has 2-5 minutes to grade your essay will look at quantity over quality when pressed for time. The examinee who typed two more pages must know what he's talking about right? Not necessarily. But it does give the impression (however false) that the person is ready to become a lawyer.
Some people recommend software like Mavis Beacon. I found a program for my Macbook called Typist that was decent. Whatever the case, if you can't type quickly, you should spend some time increasing your speed.
Discuss Both Sides
California's bar exam rewards analysis. If law school exams are a distant memory or you have been a practicing attorney for years, perhaps you've forgotten the art of arguing both sides of an issue in essays. This is dangerous. If you have an essay fact pattern where the testator with mental competency issues wrote, then destroyed, then revoked a will, you have to tell the grader from what side you are analyzing the question. You want to argue for and against the validity of the will.
In the same manner, you would want to argue for and against the admission of evidence in a criminal essay. I know this sounds obvious to most people but in the heat of the moment, stressed out with time running out, it is very easy to forget this. I tell my students about the ancient Greek terms, 'men' and 'de', roughly contrasting different conditions. Loosely translating this into English, the contrast is, "On the one hand....on the other hand...." Keep this in mind when you're typing your analysis.
If essays 1 & 2 didn't make your head spin, then essay #3 should have done the trick. There has been so much chatter about whether this was a contracts, UCC 3 or UCC 9 essay with a professional responsibility element. The general consensus is that UCC 3 was the primary subject for discussion. Let's look at this beast of a question shall we?
I will not waste space here recounting descriptions of the parties in this case. I will, however, discuss specific facts pertinent to each question. The essay asks for the examinee to prepare a memo addressing 3 questions:
1. What are Nephew's claims/defenses against Sam?
2. What are ICCI's claims/defenses against Sam?
3. What issues are raised by Attorney's representation of Sam?
1. What are Nephew's claims/defenses against Sam?
Paragraphs 1-3 are essential to your analysis of this question. We are told that a paralyzed nursing home resident Sam met with a broker at the nursing home. Broker convinced Sam to invest $40,000 and Sam asked Broker to write out a check for $25,000 to himself from Sam's checking account. Sam affixed his thumbprint on the check in lieu of signing it. Sam also affixed his thumbprint on a note for the remaining $15,000, payable within 3 days, or provide title and keys to Sam's Porsche if unable to make payment. Broker gave this note to Nephew as an 18th birthday present.
The note for $15,000 is definitely a promissory note, but, why do we need to analyze this under UCC Article 3 and not Article 9? For starters, as the "creditor", has Broker given value to Sam? I know some examinees wrote a UCC 9 analysis here because of the Porsche. However, the facts do not indicate that Sam received anything of value by signing the promissory note. There is a valid argument here that there was no creation of an an enforceable security interest because there was no attachment. Therefore, the rest of my analysis for this question will focus on applying UCC 3.
One of the first issues to address is whether Sam's fingerprint is proper authentication of the promissory note. Generally, any authentication found on the instrument qualifies - it could be initials, some defining mark, or a nickname. A thumbprint would most likely qualify, nevertheless, you should argue both ways.
The promissory note appears to be an unconditional promise with a fixed sum, and payable on demand within 3 days of the note. If the note was conditional, we would analyze it under contract principles. Also, you should mention that the note states it is payable to "the order of Broker."
You should discuss whether Broker is a holder in due course. A holder in due course is a holder who takes the instrument (1) for value, (2) in good faith, and (3) without notice that it's overdue or has been dishonored, or is subject to any defense or claim. Additionally, you should write about the Shelter Rule. If Broker is a holder in due course and makes a gift of the instrument to Nephew, Nephew is a donee and he is a holder in due course. because of the Shelter Rule.
The holder in due course (and subsequently Nephew) takes subject to the following defenses:
At a minimum, you should discuss duress, fraud, incapacity, and illegality as possible defenses against Nephew's claims.
There is so much more one could write about here but for sake of brevity, I will move on to the next question.
2. What are ICCI's claims/defenses against Sam?
The draft (Sam's check to Broker) is the subject of this question. The drawer of Sam's check is Instant Check Cashing, Inc. ("ICCI"). As the indorser of the check, Broker promises that if the check bounces, and he is notified, he will pay or he can be sued. Sam, as the drawer who signs the check, promises that if the check bounces and he is notified, he will pay or be sued. In this case, ICCI decides to sue Sam.
What are ICCI's fiduciary duties? ICCI's Clerk questioned Broker about the check but did ICCI and Clerk do enough to satisfy their fiduciary duty to investigate the validity of the check? Clerk tried to verify the transaction by calling Sam five times and leaving multiple voice messages. Without having reached Sam, Clerk decided to cash the check while charging Broker a 7 percent fee.
The defenses available to Sam against Nephew should also be discussed in this section. You should write something about Broker writing out the check to himself and discuss the validity of the thumbprint as validation.
There are numerous avenues for discussion here and I'm sure I overlooked or glossed over several of them.
3. What issues are raised by Attorney's representation of Sam?
Question 3 asks for a professional responsibility discussion of Attorney's representation of Sam. Three issues beg for discussion here: (1) Attorney's solicitation to Sam and Sally, (2) Attorney's nonrefundable flat fee of $5,000, and (3) Attorney's prior representation of Broker on a burglary charge.
Attorney should not have solicited Sam and Sally when he overheard them discussing Sam's legal and financial problems. The general rule is that a lawyer may not solicit business for a financial gain. Unpermitted solicitation includes in-person communication, telephone, fax, and e-mail communications.
Attorney's nonrefundable flat fee of $5,000 is also questionable. Generally, a fee cannot be generated by employment based on violations of the advertising or solicitation rules. As previously discussed, Attorney's in-person solicitation of Sam and Sally would prohibit him from accepting this fee. Additionally, Attorney's fee may be unreasonable in light of the difficulty of the case. The facts are insufficient to make a determination on this either way. Nevertheless, you should argue both sides.
While a flat fee would likely be permitted, the language concerning the non-refundability of the fee may be objectionable as well, especially if Attorney does not perform the promised work.
Lastly, Attorney's representation of Sam may be a conflict of interest. Attorney previously defended Broker on a burglary charge. In situations where a new client wants to sue a former client, representation is prohibited where the lawsuit involves the same or a substantially related matter. Additionally, a lawyer cannot use confidential information against a former client for or on behalf of a new client even if the issue is not the same or substantially related matter. Although the former client may consent and waive the conflict in writing, the facts do not state that has been done.
Because Broker is accused of stealing money from Sam, the situation could be considered substantially related to a prior theft (burglary) charge. Furthermore, Attorney's conversation with Sam and Sally leaves open the possibility that he has confidential information on Broker that could benefit Sam's case.
For these reasons, Attorney's representation of Sam would be violative of the rules of professional responsibility and should not occur.
There you are. I am sure there is much more you can write about. I hope this helps you to think about all of the labyrinthian possibilities posed by the Florida bar exam essays. Always remember to exhaust the facts in your discussion and read carefully and write with confidence.
Essay #2 contains two elements worthy of mention here. First, if you spent too much time on essay #1 and you were stressed, rushed, or filled with adrenaline for another reason, you may have assumed from a quick read of the first paragraph that this is a Florida Constitutional Law essay question. Those who rushed or read carelessly might have started thinking about or even outlining an answer before realizing that this essay required a U.S. Constitutional analysis. The lesson here is to remain calm and read.
Second, the last paragraph tells you this is a Federal Constitutional Law question but your task is to prepare a memorandum analyzing whether a California corporation can sue to have a statute declared unconstitutional based on the U.S. Constitution. Most Florida essay questions will ask the examinee to prepare a memorandum. Essay #1 was an exception to this. However, the notable element here is that the memorandum request is fairly open to interpretation. Essays like this scream "racehorse question." Like personal injury or products liability tort questions, there is so much to write about in one hour. It's difficult to adequately cover every possible issue given the time constraints.
As with every Constitutional Law question, you should begin your essay answer by discussing whether FarmCo has standing to bring suit and whether the suit is ripe. You should also write about the 11th Amendment's Sovereign Immunity and argue for or against it using the facts.You probably want to also throw something in your essay about whether the statute is preempted by Federal law or the U.S. Constitution.
Of course, you should spend some time discussing the Dormant Commerce Clause and distinguish it from the Privileges and Immunities Clause of Article IV (i.e. corporations such as Farmco can sue under the Dormant Commerce Clause but not under the Privileges and Immunities Clause of Article IV). Be sure to mention that the state of Florida is not a market participant in citrus growing so that exception to the Dormant Commerce Clause would not apply.
Award yourself bonus points for mentioning the Contract Impairment Clause and discussing whether Florida impaired FarmCo's negotiations with television and radio stations. Remember, use the facts in each paragraph to discuss possible actions in your essay.
FarmCo's chances of getting the statute declared unconstitutional are greatest by arguing that the Florida statute criminalizes commercial speech permitted under the First Amendment of the U.S. Constitution. Most likely, the bulk of your time is spent writing about the 3-part test for commercial speech: The statute must (1) serve a substantial interest, (2) directly advance that interest, and (3) the statute is narrowly tailored. Argue that a state may prohibit false/deceptive ads by pointing to the legislature's second concern in paragraph 1 that some out-of-state citrus growers made false and misleading claims in advertising. The legislative reasons for the bill are in the fact pattern for a reason so it behooves you to discuss them.
As you can see, this essay question provided the examinee with plenty to write about. As I previously stated, my analysis is merely intended as a springboard for your own discussion of how to write a passing answer for this essay.
The general consensus in regards to the February 2016 edition of the Florida bar exam was that the exam was challenging, particularly the MBE. As I've stated before, the MBE is always going to rattle the confidence of examinees.
Now that the exam is over, it is a good time to review the essays. Over the next three days, we will review the essays one-by-one to issue spot and discuss strategies. You can find the essay questions here. Let's begin with the first essay shall we?
The first thing that should pop in your head when doing a precursory read of essay #1 is that this is a criminal law/procedure essay with the obligatory ethics element. As sure as death and taxes, you can anticipate having to discuss whether a lawyer violated rules of ethics/professional responsibility on every exam.
1. What crimes did Alex and Charlie commit and what elements must be proved to convict them?
A passing exam answer for this question should have addressed the following crimes in relation to the facts provided:
The first paragraph of this essay begs you to write about conspiracy. Discuss the standard elements of conspiracy AND the Florida distinctions (no overt act required, bilateral theory). You want to argue for and against the crime of conspiracy. The book Getting to Maybe is an excellent resource for training you to argue both sides of a question.
The second paragraph begs for an analysis of the distinctions between common law burglary and the Florida rules (i.e. no breaking, entry, nighttime, or dwelling is required). Page 62 of the 2016 Florida Bar Exam Review outlines these distinctions for you. The facts state that Bill attempts to steal copper wire stored in the carport area. Your analysis should address whether removing copper from this area would constitute burglary under Florida law.
You also want to demonstrate your knowledge of the fact that Florida has merged the stealing offenses (i.e. larceny, embezzlement, robbery etc.) into the crime of "theft." If you have time, as a bonus, you may want to discuss the degrees of theft and provide some analysis as to which degree Alex and Bill's theft falls under.
You definitely did not want to omit a discussion of solicitation and attempt in your essay. You should have discussed Charlie's solicitation of Alex and Bill to steal copper from Harry's home. Additionally, you wanted to write about Alex and Bill's failed attempt to remove copper from Harry's property. As always, you want to recite the elements of each crime. Never forget to mention that solicitation and attempt merge into the substantive offense.
Lastly, your essay answer should have addressed the felony murder rule. To show the grader that you know the law, you should first discuss that in most jurisdictions, the killing of a co-felon by a victim such as Harry is not felony murder. However, in Florida, a person can be charged for 2nd degree felony murder where a non co-felon committed the killing.
The first question in this essay required the examinee to address a myriad of Florida distinctions in criminal law. A solid passing answer will address most if not all of these.
2. How will the court rule on Alex's motion to suppress the line-up and prevent Harry from in-court identification of Alex?
The second question in essay #1 requires the examinee to shift gears and discuss criminal procedure and a little bit of evidence. The facts in paragraphs 5, 6, & 7 recount Alex's arrest and subsequent line-up identification by Harry.
There are two substantive bases to attack the pre-trial identification of a suspect:
(1) Denial of right to counsel - a suspect has a right to an attorney at any post-charge lineup or showup. Although the facts state that Alex was arrested and Mirandized, you would want to discuss whether the line-up that is quickly arranged constitutes a post-charge lineup. For extra points, you might mention that there is no right to counsel during a photo identification although that is not what Alex was subject to.
(2) Denial of due process - A pre-trial identification can be attacked when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. Here is where you want to bring out your analytic skills to impress the bar grader. Use the facts. Harry admits that he didn't get a good look at Alex's face. The line-up consists of three males of various ages and builds. Argue both sides of whether this line-up is suggestive or increases the likelihood of misidentification.
You may want to bring in some discussion of evidence to your answer by discussing prior statements of identification made by a witness and Florida's stance that the mere description of an assailant to a third party is not an identification of a person after perceiving him and will not be admissible at trial by a third person as a non-hearsay prior statement of identification unless it falls under a hearsay exception. There are too many evidence items to properly discuss within an hour so I would advise against going down the primrose path of spending more than 5 minutes mentioning evidence.
I would conclude the answer to this question by discussing the rarely granted remedy of exclusion of an in-court identification. The court will permit in-court identification if there is an independent source for the court identification or the witness had ample opportunity to observe the suspect at the time of the crime. Here, once again, you would use the facts to argue both sides of this issue. Harry stated that he didn't see Alex's face "because it all happened so fast."
Arguing both sides is crucial on bar exams. In a Florida essay fact pattern, there are generally no insignificant facts. The bar examiners do not want to send you down a rabbit hole chasing red herrings. They want you to show the grader that you can write like a lawyer. You need to believe that every paragraph contains important facts to address in your answer.
3. What are Luke's ethical issues and how should he proceed?
Every Florida bar exam will have an essay requiring you to discuss an attorney's ethical issues. Here, you would definitely want to address a lawyer's duty of competence. Luke is a business attorney and nothing in the fact pattern suggests he is competent to represent Charlie in a criminal case.
There is also the issue of Charlie's request that Luke finish a contract between Charlie's company and a copper recycling company. By completing this contract, is Luke assisting Charlie perpetrate a crime? You should use the facts to argue for and against Luke's participation.
Discuss the duty of confidentiality that a lawyer owes a client and analyze whether Luke's representation of Charlie assists or furthers Charlie's criminal enterprises. Likewise, I would mention the facts do not clearly state how Charlie obtains the copper he intends to supply to the recycling company in the contact. If Luke is aware that the copper is stolen, should he withdraw as counsel or complete the contract?
There is so much to write about in this essay and the one hour time limit severely restricts how much you can address each issue. The analysis above is merely intended as a starting point for your own discussion of how to write a passing answer for this essay.
The ABA Journal published an interesting article written by Debra Cassens Weiss which can be read here. Jerry Organ, a law professor at the University of St. Thomas School of Law found that the law school class of 2018 has lower LSAT profiles than recent graduating classes. Accepting the correlation between lower LSAT scores and decreased bar-pass rates, the trend is that bar exam scores are going to decline at least through 2018.
Professor Organ did highlight that the LSAT profiles for incoming law school graduates for 2016 appear to be higher, hopefully reversing the downward trend for bar passage. If that is the case, then the class of 2018 will represent the lowest point for bar-pass rates.
With the bar exam being slightly less than a month away, now is a good time to begin the deep concentration on memorizing the black letter law of every testable bar subject. This is where the value of outlines increases because you need to memorize the law.
Confronted with 3 essays covering 9 (or more) issues, you need to be organized and quick-witted to write passing bar exam answers. You should never spend time on the actual exam days daydreaming how to type the perfect encapsulation of the elements for a breach of contract fact pattern. Furthermore, if you have to pause to remember the elements for an action in negligence, you need to consider spending more time on memorization.
I still believe that your state bar examiner's published "model" essays are some of your best resources for bar study. Why? Because these are essays deemed to have passing scores by their jurisdiction, and in many instances, these essays are some of the highest scoring examples of writing under intense pressure.
Do not let the length of some essay answers intimidate you. If you can cover every issue and are economical yet precise with your analysis, you can still dominate. You will also find some incorrect statements of black letter law in these essays so don't take them as the ultimate authorities.
In any endeavor, it is wise to see how the successful behave. By reading past essay answers, you get a sense of what issues you need to spot, what you need to memorize, and how to engage in proper analysis.
If you have paid for a commercial bar course, there is no doubt that your educator made attempts to get you acclimated to exam day: from simulated half and full-day exams to timed-writing exercises. All of these techniques can increase your performance on the bar exam.
For those of you willing to study outside of a commercial course, you can simulate the bar exam for thousands of dollars less by using past bar exam materials such as those released for FREE by most state bar examiners.
To celebrate the holiday season, PaulLaw Books is having a sale. From now until December 25th, receive 20% off of one of our collection of outlines. As always, if you purchase from our website, you receive Priority Mail shipping via USPS.
On October 16, 2015, the Florida Board of Governors unanimously voted to reject admission by motion with or without reciprocity. Citing Florida's fast growth and need to stay competitive in the fast-changing legal environment, the Board of Governors ensured that legal professionals wanting to practice in Florida will have to pass the Florida bar exam.
The National Conference of Bar Examiners announced last month changes to the scope of Real Property as tested on the MBE and MEE to begin in February 2017. The changes can be found here.
New topics will include:
Minor changes will include:
Real Property will no longer include the following topics:
Rest assured, PaulLaw is also a licensed real estate agent and all of these changes to the scope of Real Estate will be covered in detail in the 2017 outlines.
The California State Bar Board of Trustees voted to shorten the California bar exam from a three day exam to two days beginning in 2017.
While this news may irk those, like myself, who had to suffer through three days of grueling essays, performance tests, and the MBE in order to become certified to practice in California, I actually think the bar exam is going to become more difficult. Here's why:
Pre-2017, the California bar exam consists of 6 essays (3 on day 1 and 3 on day 3), 2 performance tests (1 on day 1 and 1 on day 3), and of course, the MBE.
In 2017, there will be 1 day with 5 essay questions and 1 ninety minute performance test and 1 day for the MBE.
Therefore, examinees will be required to know more California-specific rules for the essay/PT day to write 5 (!!) essays. Additionally, the performance test will be shortened to 1 ninety minute exercise which means examinees will have to work faster and smarter to produce a quality answer.
My experience was that the performance tests were a way to boost your written scores, especially if an essay answer or two was less than passable.
The new California bar exam will require more agility from examinees and will potentially require more typing or writing.
The same strict pass/fail standards will mean that the California bar exam will not relinquish its reputation as one of if not the most difficult bar exams in the United States.
Wow! PaulLaw's move to Central Florida is finally complete and we are still unpacking books and equipment in our new offices. It's been an exciting two weeks so here goes a recap with separate blog posts about some of these developments:
1. The consensus from the examinees I spoke to was that the MBE was difficult. This is a typical sentiment every testing with many people complaining about the constitutional law and real property questions.
2. The feedback I received about the Florida bar exam's first day was that the essays were not too bad and the multiple choice was manageable (More discourse to follow in a separate blog post).
3. The California bar exam essays were challenging though I must say it is rare when I can say the opposite (More on this later)
4. Beginning in 2017, the California bar exam will be a two-day test! This is the development that interests me most. As someone who recently passed the California bar exam and slogged through three days of examination hell, I am a bit sad this did not happen sooner.
The forum is a great place to ask questions about bar exams. If you require additional materials or are confused about something, this is the place to inquire.