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Learning the Black Letter Law
Almost every recent graduate takes a "full service" bar review course,
and
Bar/Bri has the biggest market share. The black letter law lectures
are,
by and large, outstanding. It's amazing how much information can be
communicated
in just a few hours. Many bar applicants come away from the bar review
course
wishing they had attended the lectures before starting law school.
Most of us are
overwhelmed by the amount of material we are
responsible
for. It's impossible to know every detail. Preparing for the bar exam
is
a more practical and more compact exercise than law school, and it can
be
intellectually satisfying. The good news is that it is possible to
become
sufficiently knowledgeable and skillful to pass the bar exam with the
right
kind of effort.
It is
appropriate, but not essential, to review the black letter law on
each
subject before attending the bar review lecture. Most students rely on
the
Mini Review outline and their lecture notes as "primary authority" on a
subject
and use bigger outlines for reference.
The Most Common Mistake is to Study Too Much and Not Practice Enough
Every bar
exam expert agrees that practice is central to passing the
bar
exam. Many unsuccessful candidates fail the bar exam because they feel
they
don't know the law well enough to begin practice. The best way to learn
the
black letter law is to do a couple thousand MBE questions and to
outline
and write a few dozen essays and performance examinations.
The Multistate Bar Examination is a 200 question multiple-choice test
that
is part of the bar exam in virtually every jurisdiction. The subjects
on
this part of the exam are torts, contracts, property, criminal law and
procedure,
constitutional law and evidence. The MBE tests knowledge of legal fine
points
and reading skills. The most practical and effective way to learn these
fine
points is to do a lot of practice questions, and to make flash cards or
outline
annotations out of the questions a student gets wrong.
Bar Examination Essay Writing
The majority of students who fail the bar exam across the United States
do
so because of the written sections. Bar exam essays test a student's
ability
to spot issues and analyze facts. This is hard to do, particularly
under
timed conditions. Successful bar applicants are better at outlining
than
unsuccessful ones. Outlining is a skill that cannot be developed
without
practice, but it is not difficult to sharpen these skills. Bar exam
essays
often follow predictable, standard formats, and it is relatively easy
to
become familiar with these formats.
Factual analysis on the essays is the most difficult task on any bar
exam.
Students tend to rely on boilerplate recitation of elaborate law rules,
at
the expense of doing good analysis. Although the bar reviews do a good
job
teaching the law, they tend to reinforce the myth that the bar
examiners
are not going to respect essays that don't have all the black letter
law
spelled out in hornbook detail.
A candidate will display a better understanding of the material if the
emphasis
is placed on analysis. Black letter law knowledge can be displayed at
the
outlining stage. For example, if a negligence essay is split up into
sections
labeled "duty, breach, causation and damages," it isn't too important
to
include a long definition of negligence. Certainly, the answer with
better
analysis will get a higher score than the answer with better
definitions.
The Performance Examination
Many jurisdictions have a new variation for part of the written section
of
the bar examination, a "practical essay" examination called the
Performance
Test. This is a self-contained exercise in which the student has to
read
a memo from a law partner and then follow instructions. There is a
hypothetical
legal file and a library of law. The task is to connect the key facts
from
the file to the elements of law presented in the library, in a way that
is
responsive to the instructions.
Although the performance test is intimidating to many candidates, the
basic
writing skills are similar to those required on standard essays. Issue
spotting,
outlining and analysis are central. Students will not develop these
skills
by studying outlines! Successful candidates practice.
A Sensible Schedule
Let's split
the preparation period into four quarters, and have a look
at
what successful applicants tend to be doing during each quarter:
1st Quarter: bar lectures, black letter law study, practice MBE
questions
2nd and 3rd Quarters: bar lectures, practice essays, MBE questions and
performance
tests, refine black letter law knowledge
4th Quarter: memorize the law; outline essays and performance tests;
refine
MBE techniques.
Physical and Emotional
Balance
Law
knowledge and test taking technique are not the only keys to
success
on the bar examination. Many knowledgeable and skillful applicants fail
the
bar examination because they are simply too physically and emotionally
exhausted
to perform at their best for two or three days in a row at the end of
July.
Sports psychology teaches us that the mind-body connection can be a key
to
peak performance. Many bar applicants work too hard during their
preparation
period. They study too much, eat poorly, and don't exercise enough.
Many
successful bar applicants are healthier on the first day of the exam
than
they were on the day after their law school graduation.
It makes sense to strive for physical and emotional balance during the
bar
exam summer. Take time to have fun and relax now and then – it's worth
points
on the bar exam!
Passing the bar exam is one of the most enjoyable and satisfying
experiences
in the life of a young lawyer. The bar examination is practical, not
academic.
It's a pass / fail test. Successful candidates treat the process -- and
themselves
-- with respect.
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