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Prof. Randall

Edna Wells Handy, Esq.

     I still get a chill each time I approach the location where I attended bar review classes. It always reminds me of the great emotional, physical and psychological challenge that I faced those many years ago. As thousands of third year law students and other bar candidates around the country prepare for the bar exam, they too may experience a chill of sorts, that which is brought on by the fear and anxiety of failing the exam. Following close behind that chilling thought will be the list of imaginary horrible results of failing: How will I face ny parents? Will I ever get a job? How will I pay back those loans? Who will love me?      Even though I passed the bar, I still get that chill. And even-though the majority of those students facing the exam will pass in most jurisdictions, the specter of failure looms large. Why? Few people are able to articulate a basis for that fear other than generalized notions of the exam's difficulty. When pressed for specifics, students often respond with answers shrouded in rumor - "I heard the bar is hard." Or, their answers are based upon unproven assumptions - "my friend failed and she said she studied hard." Sometimes, a response takes on mystical qualities - "There's something about me and standardized tests."      The purpose of this article is to explore the common reasons why students and other first-time takers fail the bar exam and to suggest strategies which can lead to success.1 Despite the rumors, assumptions and mystery surrounding the bar exam, there are discernible reasons why many students fail. Most often, a bar failure can be traced back to one or more of three primary sources: inadequate preparation; inappropriate study habits; and or unproductive exam anxiety. Each will be discussed in turn.

Inadequate Preparation      As a bar exam consultant and former law professor, I often witness a depressing phenomenon-the transformation of energetic, smart, self-assured college graduates into insecure, depressed and often frustrated bar exam candidates. The reasons? Unfathomable law school grades and grading policies. For some law students, first year grades are the lowest they had ever received in life. For others, it is the first time they have ever failed a course. Still other students experience a loss of their "specialness" by not making honors, law review or same other academic distinction. Try as they might to improve their low academic performance, their grades remain, more or less constant.      Consequently, many students come away from law school believing that there is little nexus between the amount of work performed and the grade received. They study hard. The get one grade. They hardly study and they get the same grade.2 This absence of a direct connection between work expended and grade improvement often leads to belief that there are "forces" beyond a student's control accounting for the low grades, for example, "the professor does not like me," or, "it's the curve." In their early years, students may try to identify those forces. By third year, many no longer care.      Regrettably, too many of these third year law students will approach the bar exam minimizing the importance of preparation and discounting their ability to control circumstances which will enhance their ability to prepare. They will resort to old study habits like cramming and passive study, which may have gotten them to the point of passing law school exams, but which are almost always counterproductive to passing the bar exam.

Not Your Law School Exam      The key to passing the bar exam is preparation. One element of this preparation is learning the difference between the bar exam and law school exams. In doing so, students should first came to appreciate "standardization" as a major difference between the bar exam and most law school exams. The often stated purpose of a bar exam is to test, and therefore ensure, "minimal competence" of those who seek to practice law. To achieve this purpose, there must be one agreed upon definition of "minimal competence" and the method for ascertaining or measuring it must be consistent throughout a given jurisdiction.      Not so with law school exams. The definitions of "competence" or "mastery," as reflected in varying degrees by grades, are left to individual professors to determine; just as the methods used to measure it are left to them. And as with anything left to individuals, the result will reflect variations and peculiarities in style and substance unique to that individual.      To minimize the potential for such variation, bar exam answers must be consistent, objectively graded and verifiable. Unlike law school exam answers, there are "right" answers to all bar exam questions. Students often hear that law professors are not so much concerned with the "right" answer. Professors want to see how well a student analyzes a problem, applies precedent and justifies a conclusion. For the bar exam, especially the Multistate or other multiple choice portion, the opposite is true. To get credit, a student must identify the "correct" or "best" answer from a list of choices. It does not matter whether the student reasoned his or her way to that answer or simply guessed. Chose correctly and you receive full credit.      A second factor which differentiates most law school exams from the bar exam is grading. Grading must be objective, based upon answers identified as correct before the exam is administered. Conversely, some law school exam answers are "works in progress." The professor may not have had a fully completed answer to an exam question before administering the exam, but once he or she reviews the students' papers, the professor will "know it when he or she sees it." Moreover, no matter what precautions law schools may take to ensure test-taker anonymity, students still fear that a professor will be able to identify their test paper and artificially lower their grade.      Not so with the bar exam. A machine grades the MBEs. Short answers are like ward searches. Either you have the correct "key words" - to get credit - or you don't. And unless someone goes to extreme lengths, chances are good that a person's anonymity will remain in tact. While there may be more opportunity for subjectivity with grading bar exam essays - because graders have more discretion in awarding points - that discretion is carefully delineated and subject to one or more layers of review.3 Consequently, for the vast majority of the tens of thousands of people who will be taking bar exams across the country, little opportunity is provided for the type of exam tampering that some students fear.      Another difference between the bar exam and law school exams is that answers to the bar exam must be objectively verifiable. For the most part, bar exams test knowledge of settled areas of law. This stands in contrast to many law school exams which may test on developing legal areas or on the application of settled principles to new and emerging fields and relationships. The reason for this difference is clear. Many people may guess, but few can predict, at least with enough certainty to test, how a developing legal issue will ultimately be resolved. Because a prediction cannot be verified when made, bar examiners must avail themselves of settled, resolved legal areas to form the basis of most exam topics.

More Certainty      As such, these differences between the bar exam and law school exams make the bar much easier to prepare for and to pass. The bar exam provides more certainty in terms of what to study and how it will be graded than do many law school exams. There is less guess work as to issues to be tested and the way in which answers are to be presented. The examiners tell you in their handbooks what they look for in an essay answer. A review of old bar exams will indicate the ways in which issues are presented and sample answers tell students how they should answer the question. With respect to the MBE, the answer is there on the page.

Inappropriate Study Habits      Once a student is able to discard old notions of testing and test preparation, those based perhaps on negative law school exam experiences, he or she is ready to prepare for the bar with the requisite openness, new approaches and testing techniques to succeed on the bar exam. Unfortunately, students' preparation is often compromised by their old study habits.      There are people who have dedicated much of their adult lives to studying the bar exam and preparing students for it. These gurus have been able to spot trends in testing; identify patterns in answers; and develop successful strategies for test-taking. Most of them will tell you that students must put in the time to pass the bar exam. That may mean studying anywhere from 6 to 10 hours per day, 5 to 6 days per week, for 6 to 10 weeks prior to the exam. This advice is often lost on some students. Relying on tried and true law school study habits, which may have been developed in college, these students do not follow the advice given to them to put in the required amount of time. Instead, they cram.

Cramming      Cramming does not work. It often proves unsuccessful for the simple fact that the subject matter of the year-long or semester-long courses, for which the student is now cramming, has already been crammed or condensed into three hour lectures and into even shorter outlines by the bar review programs. Consequently, students who cram, in effect, are merely touching the surface of an already superficial treatment of an area of law. It will not work for most of them.

Passive Learning      Another way in which the adequacy of a student's preparation is undermined is by the way in which they study. Many students still engage in "passive study." They will simply read the materials or listen to tapes, one or more times, believing this process will result in retention. Studies have shown, however, that a more "active" learning approach results in greater learning. Active learning requires "handling," shaping or manipulating the information read, e.g., reading and outlining, summarizing, or answering questions about what was read. This active approach is seen in a component of most bar review courses which calls for the taking of practice exam questions. Students are thereby afforded the opportunity to discern what they know from what, they do not, and they do so in time to make needed corrections. Successful bar attempts are often the result of this key bar preparation component.      There are other study habits which are best unlearned for the bar exam and there are other to be adopted. Whatever the habit, successful ones are those which result in consistency of study and ability to concentrate. If a student is studying evenly and effortlessly, then the study habit employed is the right one.

Unproductive Exam Anxiety      We now turn to a final consideration-unproductive exam anxiety. A little anxiety is a good thing. It keeps people motivated and alert. Too much, however, may result in dysfunction. As such, a student's appreciation of the need for preparation and productive study habits may be undermined if he or she is too anxious to sit down to engage a consistent study program.      Bar study is work best done alone. Forget study groups. This is not work done by committee. Yet, it is when we are alone that some of our deepest fears and anxieties surface. In the exam context, to avoid the fears, many students avoid the situation. They take jobs they do not really need. They obsess over matters that are either not within their control, for example a friend's martial problems, or over matters within their control, but for over which they may procrastinate, for example contacting creditors so that they will not bother them during the study period. With either situation, students lose valuable time and energy needed for successful exam preparation.      While there are fears and anxieties best dealt with by mental health professionals, many of those of the typical bar exam candidate stem from one main source. As we noted in the beginning, fear of falling. This fear is two-fold. It is not just that one has failed. It is that the failure is such a public event. At one time, the only way candidates learned that they had passed in certain jurisdictions was the presence or absence of their names in the major newspaper. The public humiliation thus connected to failure was often enough to deter students from even attempting to take the bar exam.      The best way to address this fear is head-on. First, students must recognize that it can happen. They must then put the thought out of their heads and give the exam effort 100%. Even though there are many factors connected to bar preparation that students can control, there can arise situations which will negatively impact upon that preparation which they cannot control. The worst that can happen in any event is that the student will have to take it again. If passing the exam is the goal, then the student will take it as many times as is necessary to achieve it.4

Conclusion      The bar exam has often been compared to that of a "rite of passage." This is an unfortunate comparison because the legal profession does not provide the structural supports typically attending a true rite. There is no pairing of an initiate with an elder or coach. There is no guided preparation period. Nor is there an investment by the entire legal community in the successful outcome of the "passage." What some people really mean when they say the bar is a rite of passage is, "I got mine. Now, you get yours!"      Accordingly, I reject the "rite of passage model of bar exam preparation. I believe the exam to be more like a ritual-a very specific, highly sophisticated, elaborate ritual, full of technical minutia carefully contrived to test a student's resolve. That resolve must be evident from the beginning of the study period and must be strong enough to take a student through the final day of the exam. The more students learn about the process, the less mystery and mistake there will be in treating the ritual with the utmost seriousness, respect and hard work. The key is hard work. There is a direct correlation between the quality and quantity of work done and the chances of success on the bar exam. The harder, longer and smarter a student works, the better the chances of passing on the first try.5

Endnotes:      1 The reasons for the failure of repeat-takers are often markedly different from those of first-time takers. Accordingly, we must leave to another article an exploration of the reasons for repeaters.      2 I am fond of the expression, "Fix the problem; not the blame." I cast no aspersions upon any person, student or institution, I merely restate a view shared by many students in an effort to suggest solutions to those who may have experienced, or, are apprehensive about the possibility of failing the bar exam .      3 Nothing is impossible, however, and where there is a will to tamper',. there probably is a way. Thus, there have been challenges to bar examiners for what amounts to "wrongful failure" of individual bar candidates.      4 Some studies show a relationship between LSAT/GPAs and success on the bar exam. There are, however, bar preparation courses and tutorials which address this relationship and which attain pass rates rivaling the overall state rate. No student, therefore, should fear failing simple because of he/she falls within certain groups or groupings. It may just take a little more work to avoid becoming a statistic.      5 Work must be performed within bounds. Thus, we always recommend a study program to include all the priorities a student my have (work, family, study) and one which seeks to balance the need to work with the need to rest and maintain those other priorities.

* Edna Wells Handy is the author of the acclaimed book, You Can Pass Any Bar Exam, She is the co-founder of the Professional Skills Center, Inc. of Dallas, Texas and the founder.of the Legal Skills Center of New York. Both organizations provide bar exam preparation courses.