Legal Analysis

Most if not all people sitting for a bar exam have heard of the acronym "IRAC."  When analyzing a legal issue it's said that you should first state the issue, then state the rule that will resolve the issue, then analyze the rule, and finally draw a conclusion based on the analysis.  I highly recommend this approach for a bar exam; it's clear, and efficient.

But it's not a skill that comes easy, which is why many people struggle with bar exam essays.  Many of the available points on essays come from the analysis aspect of IRAC and to perform well at legal analysis requires lots of practice. The analogy I often use to explain how best to analyze a legal rule is to treat the rule as if it were a car engine, or a television, or a computer. Imagine that your goal was to figure out whether the piece of electronics contains all the necessary parts or if there is something missing that might prevent it from working properly. Only once you've analyzed all the parts could you be confident in drawing a conclusion as to whether the item contains all the parts required for it to work properly.

For example, let's take a simple intentional tort, battery.  A common definition that one might read for this tort is that battery is a harmful or offensive contact with the person of another without the other person's consent.  To analyze this rule you need to look at each individual part of the the rule. Break the rule up into its component parts. Was the act harmful or would it be deemed offensive by a reasonable person? Was there a contact? Was the contact with the person of another? Did the other person give consent to this contact? Was there perhaps some kind of implied consent? 

Once you've addressed all of the individual components of the rule, and only once you've addressed them, are you then prepared to conclude whether or not there has in fact been a battery.

That, in short, is legal analysis. You first take the rule apart. You then examine each component of the rule. Once you've done so, you put the rule back together and explain what you've concluded. It'll take you far on a bar exam in which the objective is to score points because the approach will allow you to analyze the rules in a way that it'll make it difficult for the grader not to award them.

The 2 Components to Excelling on a Bar Exam

I tell my students all the time that there are two components to excelling on a bar exam.  The first is to know the law and the second is to know how to apply the law that you've learned.  Over time, I've come to realize that there is more likely to be a deficiency in the second component. That isn't to say that people do not go into the test not knowing the law well enough, but rather that more people go into the test understanding the law better than they understand the skills required to apply the law that they've learned.    

In addition to writing essays and having them reviewed, I highly recommend reading over as many of the model answers to previous essays as time permits.  Quite a few are provided for free at the link below and more recent essays can be purchased on the NCBE website.

http://www.ncbex.org/exams/mee/preparing/

Further, a bit of guidance is provided on the test itself as to how you should aim to style your answer. On the MEE, there will be the following instructions:

Read each fact situation very carefully and do not assume facts that are not given in the question. Do not assume that each question covers only a single area of the law; some of the questions may cover more than one of the areas you are responsible for knowing.

Demonstrate your ability to reason and analyze. Each of your answers should show an understanding of the facts, a recognition of the issues included, a knowledge of the applicable principles of law, and the reasoning by which you arrive at your conclusions. The value of your answer depends not as much upon your conclusions as upon the presence and quality of the elements mentioned above.

Clarity and conciseness are important, but make your answer complete. Do not volunteer irrelevant or immaterial information.

Answer all questions according to generally accepted fundamental legal principles unless your testing jurisdiction has instructed you to answer according to local case or statutory law. 

Preparing for the Florida Bar Exam

It's about that time to start preparing for the February bar exam.  My tips for getting started are published @ http://barexamtoolbox.com/tips-acing-florida-bar-exam/

Re-taking the MBE

The average score on the July 2015 MBE fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided by the National Conference of Bar Examiners. The mean score on this most recent exam was a 139.9, down from 141.5 in July 2014.

Some time ago I wrote an article focused entirely on re-taking the exam, and many are now in the position of facing the exam again after having taken it in July. I hope the article might provide some guidance, and it can be found @

http://barexamtoolbox.com/top-5-study-tips-for-conquering-the-mbe/

Process of Elimination

"You will not apply my precept," he said, shaking his head. "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?"

The above quote is by Arthur Conan Doyle through his character Sherlock Holmes but the advice regarding reasoning by elimination applies quite well on the MBE, and really on any multiple choice test.

The writers of the MBE are adept at hiding the correct answer so it's often an easier task to spot an error in all incorrect answer choices than it is to spot the choice in which no error exists. This advice sometimes strikes my students as surprising when I direct them to not attempt to spot the correct answer but instead to get rid of all that is not correct so that the correct answer is all that remains.

Further, there is a mathematical basis for this approach. With 4 choices to choose from you have a 1/4 chance or 25% chance of answering the question correctly. But eliminate 1 of the incorrect choices and the probability of answering correctly on a random guess jumps to 33%. Eliminate 2 and you now have a 50% chance of answering the question correctly. The goal, of course, is to eliminate the 3 incorrect choices, but even if you don't make it that far, eliminating even 1 has increased your chances of guessing correctly on any individual question.

I'll note that this approach does not, however, allow a test-taker to know the law any less well than one would be required to know it if the initial goal were to spot the correct answer from the 4 given. To be able to spot the error in an answer choice requires a deep knowledge of the substantive law. In my opinion, however, it is slightly easier to see through those distractors than it is to pick which among the 4 answer choices has no errors.

And that slight edge can make a big difference on a bar exam where the difference between passing and not passing is often equivalent to the difference between a few points.

MBE Strategy: Extract the Principle

Along with developing a very deep knowledge of the testable law, understanding the test itself is essential for success on the MBE. There are quite a few strategies that I work on with students when working through MBE questions together. One of these strategies is to extract the relevant principle from each question. The writers do a very good job of hiding exactly what they are testing, but each question absolutely tests one specific legal principle.

If you answer a question incorrectly, your initial thought should be to understand the principle that the question was testing, because it will be tested again both in future practice questions, and perhaps on the MBE when you take it. The questions will not repeat, but the principles, or legal concepts, will. I recommend that whenever you answer a question incorrectly you write down the legal principle that the question was testing, and then go back to the part of the outline that explained that principle if you don't fully understand it.

You will, in time, begin to notice the same principles tested within a given subject. I often compare this to legal research. A good indication that you've adequately researched a legal issue is when you begin to come across the same cases over and over again. When studying for the MBE, beginning to note that the questions in a given subject are testing only principles that you've already seen in previous questions is a very good indication that you have prepared adequately for that particular subject.

More strategies to come soon......

Strategies for July

Students very often ask me whether they should be studying differently for the MBE in July than they were in the months leading up to the exam. Though it's difficult to generalize, the one piece of advice I do give to all students is that in July you should be focusing far more on practice questions than on reading substantive outlines. There is definitely a time for reading outlines, and doing so is an essential aspect of the bar-review process, but in the last month leading up to the exam, practicing applying the knowledge that you've already learned will often benefit you more than continuing to try to memorize the substantive law.

That isn't to say you should put the outlines away. As you work through questions you will often need to refer back to the outlines to clarify points made in the answer explanations to the questions you're working through. In other words, the outlines should become a reference rather than a primary studying tool.

It's still a balance, and throughout this final month you should continue to balance the two essential components of effective bar preparation: gaining a deep knowledge of the subject matter, and applying that knowledge to practice questions. But understand that just as it would be difficult to learn how to play a musical instrument by only memorizing the notes of a song, simply learning the law will not be enough to excel on the MBE.

Essay Writing

Though this blog is primarily geared towards assisting with the MBE, I work quite a lot with students to improve their analysis for purposes of bar exam essay writing. A little while back I wrote a piece about my philosophy on how to effectively analyze a legal issue for purposes of scoring points on bar exam essays, and those taking the exam in a few weeks may find it helpful. It can be found at:

http://www.greenhornlegal.com/new-lawyer-tip-of-the-week-essay-writing-for-the-bar-exam/

Legal Analysis

The ability to analyze a legal issue by applying the rule of law to the facts provided is an essential skill for bar exam success. Becoming proficient at it takes quite a lot of practice.

An approach I often recommend to my students is to try breaking down the rule of law into individual elements, and then applying each element separately. This approach greatly minimizes the potential of missing any aspect of the analysis that might earn points on the exam.

So, for example, if you were to analyze the tort of battery in an essay, you'd break apart the tort into the individual elements of (1) intentional (2) harmful or offensive, (3) contact (4) with another (5) without the other's consent.

Then, analyze each element separately to determine that all elements have been satisfied, and form your conclusion based upon that analysis. Note that it's not necessary to present the rule on an essay with the numbers as stated above, but doing so when you are practicing your analysis is an excellent method for ensuring that the approach becomes more natural at which point the numbers are no longer necessary.

A Study Tip

I received an e-mail from a student who had struggled quite a bit with the bar exam, but overcame the hurdle in February. I hope it serves to let others know that much of success on the test is simply studying correctly. Hard work, and perseverance will pay off.

Within the e-mail was the following line:

What helped me the most was doing the actual questions myself and then going over the wrong ones with you individually - with emphasis on why I picked the choice I picked and more importantly why the correct answer was the correct answer.

Whether you choose private tutoring, studying on your own, or taking a bar review course, do not neglect this important advice: Treat each question as a tool for teaching you a rule of law that you can apply to future questions. When studying for the exam, getting a question wrong and then understanding why you got it wrong, is far more beneficial than getting it right, with a vague knowledge as to why you were correct.

Quantity vs. Quality

I'm often asked how many questions one should attempt to complete while preparing for the MBE. Though I do have a number in mind, the answer really comes down to the importance of quality over quantity.

The reason why quantity matters is because the more questions you do, the more angles you'll see as to each testable issue. And the more angles you see, the less likely it is you'll see anything on the test you haven't seen while studying. It's tough to believe, but the testable content on the MBE is limited, and there comes a point when you start seeing the same issues tested, though, of course, they are hidden in a wide variety fact patterns. That's when you know you are ready for the exam.

But it's extremely difficult to get to that point (with any real confidence) in the short time that is provided to study for the bar exam. And that's why quality of studying is essential, and even more important than quantity. You want to make sure that each question counts. What I mean by that is that you want to make sure that you know well the issue that was tested in every practice question that you complete, because, again, your goal is to begin to see the same issues tested repeatedly, and that is much less likely if you waste a question (by not, for example, writing down the issue that was tested in the particular question, and the rule of law needed to address the issue to arrive at the correct conclusion).

And in regard to a specific number, I'd say at least 300 questions in each subject area is a very good goal.

Pacing on the Exam.

The following question was asked by a reader of the blog:

"Do you have a recommended approach for dealing with questions requiring one to select which of four described precedents apply to which of four described scenarios? These types of questions are time sinks.‏"

Response:


With the MBE only days away, I've started to receive quite a few questions regarding strategies, in addition to the questions regarding content. I'll address this question by discussing my advice regarding how to approach any question that is taking you longer than the allotted time provided for each question.

In short, pick an answer, and move on. It's a good idea to mark on your test booklet which questions you've guessed on, so that if you happen to have some time at the end of the exam, you can return back to those questions for a closer look.

It's easy to lose track of time while taking the exam. But for every question that you spend more than 1.8 minutes on, you give yourself less than 1.8 minutes on a later question. And if you're spending more than the allotted time on any given question, then it's likely that you find that question difficult, which makes it less likely that you'll answer that particular question correctly. If you spend 3 minutes on a question, you'll be guessing on a later question (due to lack of time,) and it's possible that the question that you'll be forced to guess on is an easier question than the question you spent all that time on.

The smarter move is to move on before spending any extra time on a question, so that you'll at least have an equal opportunity to attempt all the questions. At the end of the exam, as stated above, return to those questions you've guessed on, for a closer look. If no time remains, then at least you had the opportunity to attempt all questions. On a 200 question exam like the MBE, you never want to get hung up on any particular question, as each question amounts to a very small percentage of your entire score.

Keep moving along steadily, dwelling not on any prior question, focused only on the question at hand.

A Useful Tool

At this point, with the MBE a bit under two weeks away, it's best to be reviewing the information that you've already learned rather than attempting to fill your head with new information. An excellent tool for organizing that final review of the material is to use the official MBE outline on the NCBE website. If you haven't yet looked it over, I highly recommend doing so. The link is below, and though the entire file has useful information, the outline itself begins on page 7 of the document:

http://www.ncbex.org/assets/media_files/Information-Booklets/MBEIB2013.pdf

Individual Subjects or Mixed Questions?

A very common question that I'm asked, especially as students begin to feel the MBE creeping up, is at what point is it best to transition from practice questions in individual subjects to mixed questions when preparing for the MBE.

As I've written previously, studying for the MBE is a process that occurs in stages. The initial stage is one of foundation building, and should be spent entirely focused on individual subjects. You'll continue to refine your knowledge in each individual subject once you move on to mixed questions, but the best opportunity to learn, for example, Contracts, is if your focus is entirely on Contracts.

Ideally, you'll move on to mixed questions when you are consistently scoring between 60-70% on practice sets within each individual subject. But usually when I am asked the question that is the subject of this thread, it's because a student is not yet scoring that highly and does not know whether to continue studying the individual subjects, or instead to move on to mixed questions.

My answer is that if you are scoring well below the percentage threshold stated above, it's best to continue to refine your knowledge in that subject because working through mixed questions will not expose you to the same number of issues you'll encounter if you are focused only on a particular subject. The one qualification to the above advice is that at about 3-4 weeks before the exam, you’ll need to move on to mixed questions, regardless as to how you are scoring in the individual subjects. At that point, there are reasons to move on that outweigh the need to work through individual subjects.

First, one difficulty of the MBE is ascertaining which subject each individual question is testing. If you don't practice mixed questions, you will not develop the important skill of making this determination quickly. In addition, the test itself will present you with mixed questions, and you’ll want to give yourself sufficient time to practice with material that replicates the exam as closely as possible. Finally, the full length exams that many test-prep companies provide all consist of mixed questions, and these exams are essential in order to build endurance, which is nearly as important as building your content knowledge.

Consequently, there are a few things to consider when addressing the question of when to transition to mixed questions. Ideally, you’ll spend sufficient time on both individual subjects and mixed questions. The combination of the two is a very effective method for preparing to score highly on the MBE.

Advice for Repeat Takers

I provided some advice on the website "Bar Exam Toolbox," geared towards those who are repeating the bar exam. It's available @ http://barexamtoolbox.com/mbe-trouble-tips-for-studying-again/

Hope it's helpful!

The Final Few Days.....

A common question I receive from my students is how they should spend the final few days before the exam. I have worked with enough students to know that there simply is not one answer that applies to all students. But I can say with confidence that for the most part, I advise the following:

At this point, your goal of learning new law by reading lengthy subject matter outlines should be coming to a close. There is law to be learned in the final few days, but learning that law should be a by-product of practicing MBE questions, and reading over essays released by your state, rather than a direct result of reading through outlines. I don't deny that it's difficult to put down the outlines. Nobody feels as though they've sufficiently covered all the law so that there is nothing else to be learned. That's the nature of the bar exam. There comes a point at which you have to be confident in the work you've put in over the last few months, and decide that rather than attempting to stuff your head with new knowledge, you will focus on solidifying the knowledge already learned by memorizing as much as you can, and applying the knowledge you've already learned to the types of questions you are most likely going to see on the exam. As such, your goals over the final few days should be memorizing, and practicing.

In regards to memorizing, hopefully you have concise outlines available for the subjects tested on the exam. In reading them over the next few days, your goal should not be learning new content or trying to figure out legal concepts that are causing you difficulty. That is far too time consuming, when every hour counts. Rather, you should be memorizing the black letter law so that you can state the rules on your essays, and not get tripped up on MBE questions that are testing fine distinctions.

Don't let up over the final few days. Try to get through at least 75-100 MBE questions every day up until your final day of studying, and read through as many released essays as time permits. You will end up learning some new law, and it will all be very fresh in your mind next week.

As to when to close the book (so to speak) on studying completely, again, that's a personal decision. Many choose not to study the day before the exam, or perhaps do some light reviewing. Others prefer to sprint to the finish line, putting in a full day of heavy studying the day before the exam. Do what will make you feel most confident going into the exam. That last day probably won't make or break you, anyway. But psychologically, you want to end on a note that resonates well with you.

Don't study the morning of the exam, though. At that point it's game time, and preparation should be a thing of the past.

Best,

Sean

An Approach to Legal Writing on the Bar Exam

I've been working quite a bit with students on legal writing, as of late. With increased frequency, students have been seeking tutoring not to learn any specific aspect of substantive law, but rather to improve their essay-writing ability. I thought it important to write a post in that respect. Though it would be impossible to provide significant tutoring on legal writing in a blog post, this will at least serve as an introduction as to how I believe one can improve his/her score on the bar exam by improving essay-writing ability.

Let's take a basic example of a fact pattern implicating the tort of assault. Assume that X runs toward Y holding a large ball pretending as if he is going to throw the ball at Y. X does so playfully with no intent to actually hit Y, but Y is unaware that X lacks the intent. Y is frightened as X throws the ball. The ball misses Y by only a few inches.

ISSUE: Your first step should be to state to the bar examiners the issue you are about to analyze. For example: An initial issue is whether X may be liable for assault against Y.

RULE: Next, in a new paragraph you will want to state all relevant information that you've learned regarding the tort of assault. You determine what information is relevant based upon how you intend to analyze later. For example, in determining the liability of X, you will later need to analyze whether, based on the facts provided, X has violated each element of assault. As such, you'll want to state the elements of assault in your statement of the rule. If a possible defense had been implicated by the facts, then you would want to mention that defense in your statement of the rule because later you'll be analyzing that defense. For our purposes here, it would be enough to state that: An actor is subject to liability to another for assault if (1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or (2) an imminent apprehension of such a contact, and (3) the other is thereby put in such imminent apprehension.

ANALYSIS: Advice differs in this respect, but I recommend that in order to achieve the maximum number of points on a bar exam essay, you write a separate IRAC for each element you are analyzing. The IRAC of each element should form its own paragraph. So, for example, after you've stated your rule, you would start a new paragraph, and in that paragraph state: It first must be determined whether X intended to cause a harmful or offense contact with Y. You would analyze the provided facts and ultimately conclude that X did not intend to cause such contact with Y. In a new paragraph, you should then analyze (in IRAC form) element 2; namely, whether X intended to cause an imminent apprehension of such contact with Y. Once again you should carefully analyze the facts, ultimately coming to the conclusion (if you believe the facts warranted it) that X did intend to cause such apprehension. In the next paragraph you should analyze (in IRAC form) element 3, whether Y was put in such imminent apprehension. After analyzing the facts, you would conclude that Y was, in fact, put in such apprehension. At this point, you have analyzed each element of assault, and you are now ready to conclude.

CONCLUSION: In the next paragraph you should state your ultimate conclusion. Your ultimate conclusion (I say ultimate, because you also will have written sub-conclusions for each of the IRAC's above) should mirror the issue you've stated at the beginning of your analysis. Since your issue asked whether X may be liable to Y for assault, that is exactly the answer you want to address in your conclusion. So, an example of your conclusion might look like the following: Because X intended to cause an imminent apprehension of a harmful or offensive contact towards Y, and because Y was, in fact, put in such imminent apprehension of such contact, it is likely that X will be liable for assault towards Y.

In a general sense what this approach requires you to do is to take the tort of assault, divide the tort into its individual elements, and analyze carefully each element. Only once you've done that have you effectively addressed the issue, and once you've effectively addressed the issue you then state your conclusion. It's a logical approach that may take some practice, but will earn you many points when analyzing a legal issue on the bar exam.

Hope it's helpful!

Bar Exam Toolbox

I took part in an interview for the website Bar Exam Toolbox. For some tips on preparing for the MBE while still in law school, and preparation in general, check out the interview.

http://barexamtoolbox.com/bar-study-tips-preparing-for-the-mbe/

Test Taking Skills: Endurance

The following question was asked on the facebook page @ http://www.facebook.com/barexaminstruction:

Can you comment on tips/strategies for combating examination fatigue and maintaining focus throughout the entire 200 question gauntlet? Please also share any suggestions you may have about studying/reviewing in the morning and lunch break on MBE day. Thanks!

Response:

With the amount of time spent learning the law tested on the MBE, it is easy to overlook these types of questions, so I'm glad this was asked. I, personally, do not believe that there is any way to completely combat fatigue on this test, but I do think that there are ways to minimize it. The length of the test, and the dense fact patterns, will inevitably lead to fatigue at some point (especially in the afternoon session), but it's important while studying to make sure that you set aside opportunities to practice taking full-length exams. By full-length exams, I mean 3 hours of 100 mixed questions, then one hour off, and then 3 hours of another 100 mixed questions. It would certainly be a mistake to take your first 6 hour exam the day of the test.

The other less obvious answer is that the better you know the law, the less fatigued you will become. This is because the more thought you have to put into each question, the harder you are working your brain, and the quicker you will become fatigued. You want some, and hopefully many, questions to be relatively easy on the exam, and if that is the case, you'll find you have more mental energy to focus on the one's you find to be difficult.

Finally, the obvious answer is to get enough sleep the night before. Don't cram, it's a mistake. You need to be at your best to do well on this test, and your best is when you are rested.

And that transitions into the next question. I don't believe you should be working on questions the morning of the test in order to learn any more substantive law. I do, however, believe that it's a good idea to "warm up" the brain in some way that morning, whether it's by reading an article in a newspaper, doing a crossword puzzle, etc. And one way to do so is by doing a few MBE questions. But the purpose of those questions is not to learn the law (it's too late for that), but, rather, it's to "stretch" a bit before the exam.

In regards to whether you should do questions during the lunch break, my answer is an emphatic "no." Your lunch break is an opportunity to rest your mind between the two sessions; do not squander it. I'd highly recommend eating something healthy, relaxing, and mentally preparing for the difficult task ahead, the afternoon session of the exam.

MBE Subject-Matter Outine

For those intending to soon begin studying for the February MBE exam, a great place to start would be to download, and print out, this outline. Click the link, and then click the "MBE Subject Matter Outline" on the right-hand side of the page. Let it guide you as you study for the exam; as you learn an area in each subject, check it off.

http://www.ncbex.org/multistate-tests/mbe/