Helping graduates who fail the bar examination.

• Author: Reynolds, Thurston Howard, II

INTRODUCTION

The American legal academy has a strong tendency to turn its back on law school graduates who fail the bar examination. The easiest course is to blame the graduate (or the admissions committee). "Who let these people in?" the faculty may ask, like the "teachers of the law" who muttered about Jesus: "This man welcomes sinners and eats with them." (1) Jesus answered them this way:

What man of you, having an hundred sheep, if he lose one of them, doth not leave the ninety and nine in the wilderness, and go after that which is lost, until he find it? And when he hath found it, he layeth it on his shoulders, rejoicing. And when he cometh home, he calleth together his friends and neighbours, saying unto them, Rejoice with me; for I have found my sheep which was lost. (2) Shepherds in first-century Judaea occupied a social standing just one level above pig farmers. It seems unlikely, therefore, that many teachers of the law, who enjoyed the highest honors their society could bestow, had spent much time considering the animal husbandry practices of shepherds. One can assume, however, from the illustration Jesus chose, that His audience knew exactly what He was talking about. Even the scribes had to get the point of the story. The lowest ranch hands took better care of the animals they watched than the teachers of the law took of the children of Israel. If there was a contrast between the levels of status and responsibilities of the teachers and the shepherds, there was an even bigger contrast between their respective attitudes. The shepherds were very careful of even a single sheep in their charge, but the scribes neglected the children of Abraham in their care, especially those who had wandered away. It seems to me that teachers of law in this century similarly overlook the continuing nature of their responsibilities to their students. Professor John C. H. Wu, in his enlightening work, The Fountain of Justice, raised an implicit question for judicial decisions: "Would Christ smile on this judgment?" (3) Christian law schools and professors, at least, could perhaps heed Wu's Question and adapt it to examining their own decisions in academic life. The question could remind contemporary professors of law that the heart of a shepherd does not find rest or satisfaction with "the ninety and nine" graduates who pass the bar examination on the first attempt (4), but seeks to rescue even a single lost sheep.

How, then, can a law school help its own graduates who fail the bar examination? Obviously the best answer is to prevent the failure in the first place. During most of the last decade I have lectured regularly to students in large bar review courses. I have also tutored almost one hundred law school graduates individually or in small groups. The majority of them passed the bar examination the first time they took it and provided little information for this essay. I have to admit that how people pass the bar examination remains a mystery to me. Most of what I know about this subject I learned from the mistakes made by the minority who had failed the bar examination at least once, and especially from the very few who had failed several times.

This essay summarizes what I have learned by interrogating experts--those who had failed the bar examination--the true experts on what not to do in preparing for and taking a bar examination. It focuses on strategies to recover the "lost sheep" who have failed at least once, not on the "ninety and nine," who initially pass. I regard the most reliable part of the essay as a compilation of seemingly obvious mistakes to avoid. One may object to this as mere common sense, articulated and written down, but I reply that such a handy collection of common sense, all in one place, is not all that common.

DIAGNOSTIC QUESTIONS

When I first meet with a graduate tutoree, I ask about thirty to forty diagnostic questions to identify, if possible, specific problems that caused the failure(s). These questions allow me to estimate the nature and gravity of the reasons for their failure(s). This helps me to determine up front whether I can do anything to help and spares wasting the time or money of a graduate who actually needs no help. These questions also give the graduate an opportunity to ventilate, while giving me an opportunity to listen supportively and to empathize. For those whom I think can pass, with help, I seek to convey the reassuring message: "There, there--it will turn out well. Let's change your preparation so that you have a reasonable chance of changing your results." In addition, I try to stay alert for any answers that might suggest that this graduate needs more specialized help. Sometimes, for example, with proper documentation and assessment, a graduate can obtain testing accommodation under the Americans with Disabilities Act.

I may not ask the diagnostic questions in exactly the same format or order in which they appear here. If, for example, I already know the answer to a question, I see no need to ask it. The following are questions that I usually ask a prospective examinee:

1. Where did you go to law school?

   (Some law schools prepare their graduates for the bar examination better than others.)

2. When did you graduate?

   (A recent graduate generally will have less difficulty than someone who finished law school eight years ago.)

3. Where did you go to school for any other degrees you have?

   (The answer to this question may give clues as to academic capability.)

4. What grades did you earn?

   (Lower grades generally correlate with lower bar examination scores.)

5. How did you score on the LSAT?

   (LSAT scores seem to correlate positively with results on the Multistate Bar Exam (the "MBE").)

6. How many times have you taken and failed the bar examination?

   (The more failures, the greater the challenge.)

7. On which dates did you sit for each bar examination?

   (This information can tell something about the level of preparation.)

   About each sitting, I ask:

8. How did you score on this examination (specifically on each sub-part of the MBE and on each subject of the Alabama Essay Examination)?

   1. Could you give me a copy of the report of results of that bar examination?

   2. Could I see copies of your essay answers on the last examination you took?

9. How did you prepare for this examination? Because this question is so important, I ask specifically:

   1. Did you take a bar review course?

   2. If so, which one?

   3. Did you sit through the lectures?

   4. Did you read the outlines?

   5. If so, did you do the readings before or after the corresponding lectures?

   6. How many hours did you spend reading the outlines?

      Also, I ask questions designed to enable us to estimate the total number of hours the examinee spent preparing for each bar examination he took, and what he included in that preparation. I cannot recall any graduate who has ever been able to answer this instantly, so I always walk him through the computations, by asking:

   7. How many weeks or months did you spend preparing for that exam?

   8. How many days per week, on average?

   9. How many hours per day, on average?

      We then do the multiplication and addition together and come up with a total number of hours.

10. What were the surrounding circumstances for your last preparation? Specifically--

    1. Did you work full-time?

    2. Where did you study?

    3. Was it noisy?

    4. Were you subject to frequent interruptions?

    5. Did you study at work?

    6. Did your employer know and approve?

    7. Did you experience any health problems?

    8. Did you experience any marital or family problems?

    9. Did you participate in a study group?

    Answers to these questions may allow me to give some immediate study advice. For example, I think the ideal physical environment for bar examination study is in a quiet room, away from telephones and televisions, free from interruptions, with a straight chair and a big, clean table that is empty of all books, papers and clutter, except for a single, easy-to-spot, red binder of review outlines. A large stack of books tends to accuse the student of all the things he does not know, and it may silently suggest that the task ahead is enormous. A single red binder proclaims as loudly as any inanimate object can: "You can accomplish this task; it has clearly limited boundaries. When you master my contents, you will be finished."

    A library could fulfill the environmental requirements of a chair and empty table with no telephone or television nearby, but I recommend avoiding any law library. Too many law students and recent graduates hang out in law libraries, and while they hang out they talk with each other, usually about the bar examination. This kind of talk seldom helps the process of preparation. Also, a law library may tempt the graduate to start checking original sources as questions present themselves. This is not the time for that. Law libraries also may breed another tempting distraction from bar examination study: study groups. Study groups have their time and place--notably, the first year of law school--but I think they hurt more than help in preparation for the bar examination. Successful bar preparation seems to require substantial solitary time.

    After formulating the amount of time and the type of preparation that went into each previous examination, I then ask the examinee:

11. What are the surrounding circumstances for your current preparation? Specifically--

    1. Where do you work?

       (A candidate who works with a family law firm or other family business probably can get more time off for study. Someone who works in sweatshop conditions will have to find a way to escape. Sometimes it is the family firm that is the sweatshop.)

    2. Will you lose your job if you do not pass the very next bar examination?

       (The answer lets me know whether the graduate and I must make do with the time remaining before the next sitting, or whether I can recommend skipping the next exam. The graduate always...