By Deborah Sanders
Now that the exam has passed, I want to assure you that once results are in you will forget the exam, whatever the outcome. If you passed, you will quickly dispose of the exam as the minor blip that it is. If you did not, you will begin fixating on the next attempt, which will also become a blip. Either way, that thing that held so much prominence in your life will evaporate, leaving you to wonder how something so seemingly monumental can fade with such ease.
I have a few theories. Have you ever met anyone in full-on wedding-planning mode? For the purposes of the analogy I will provide the insight necessary for the leap: wedding-planning people (I will avoid gender, though the typical protagonist is often known as “bridezilla”) are exceedingly fixated on the parade rather than its purpose. Sometimes in the course of all the decorative details, they even forget why they even liked the other person enough to merge their futures in the first place. When that happens, some loving and guiding hand usually steps in and redirects the focus back onto the life that will happened after the ceremony, hopefully avoiding pre-altar flight. When the event is over and the couple settles into marriage, the party — and all of its conflicts and disruptions — dissipates and takes its place as the small thing that it is: A mark in time of something much more enduring and meaningful.
In the same way, sometimes the strict requirements of exam-taking can cause a student to lose or displace perspective. In bar prepping I try to act as that loving hand, guiding my students back to the big picture: Why do these concepts that you are furiously trying to memorize even matter? In part, the mindless and almost centrifugal force of law-memorizing is a product of law school itself: everyone else is doing it and it feels safe. But the fact of this force instantly displaces a lot of what drives students to law school in the first place and a lot of what makes these legal concepts concrete enough to remember and apply in the exam. What, I always ask my students, do these laws “do”? How are they intended to “behave” in response to a social problem or need? That view of the law is the first thing to go in bar prep. In law school, though the skill of head-stuffing begins to take over as a form of study heading into first-year exams (think of the classic response to first-year torts essay exams, commonly referred to as the “torts bomb,” or the “torts dump”), early on there is still some innocent affiliation to the origins of motivation to study the law, enough to give the law a context. After first-year exams, everyone tends to pursue courses they really care about, or at least that they can perform well in. In short, students are still interested in the big picture, in social justice and the impact we as legal voices can have on legal problems. As law students, enjoy taking positions. But during bar prepping we turn into automatons.
Listen, I am the first person to tell students that the bar exam is artifice. In some respects, it simply tests your ability to pass the bar exam. But a necessary precedent is that you know why these concepts matter in a way that will allow you to do the required application and analysis, at least on the essay portion of the exam.
Laws fill a social void and respond to a social problem. There is always a “policy” argument because there is always a policy. Yet in bar prep, when I encourage students to include references to policy in their essay answers they often seem annoyed, like this is the “small thing.” But in the world of understanding how a law operates, including the dry tests and elements, the policy that drove the law is really the only thing. And more importantly for the test-taking population, knowing the why of a law often really facilitates a response to a hypothetical, tortured and remote from reality as these fact patterns are. If a student forgets every single element to a test of law, explaining what the law does can really bridge the gap in scoring, and for good reason.
This last bar, a student was struggling with creating an approach to a character evidence problem in an essay hypo. I had trained him well enough to spot that issue, but he did not know how to begin talking about character evidence in sentences. I should point out that this student is a judicial law clerk, reviewing trial motions (including those related to evidence) and sitting in trials on a regular basis. It might be hard to imagine that a person actually manipulating the Rules of Evidence daily could be so wholly without a relationship to the functional aspect of what these rules do so as to be completely void of an approach to analysis. I will pause here to say this is a common problem, hence this essay, so no disrespect of this fine student. This example is simply perfectly illustrative. Students are inhaling volumes of words in bar prep lectures and their corresponding materials without any real understanding of what these laws really do.
Back to the character evidence conundrum… I began my instruction by pointing to the organization of the rules overall by each Article, so that my student could see how the rules are organized based on what they do, and then to see how this particular rule fit into the grand scheme. The rule related to character evidence, FRE 404, it turns out, falls under a main header entitled “Relevance and Its Limits.” Aha: this is a problem related to the relevance. That’s a start. The rule itself was pretty plain. Generally, the rule admonished, “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” But the real work comes in understanding why. If you view this rule together with the purpose of all the rules as stated under Rule 102, “to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination” this rule and its spatial orientation suggests that character evidence is not reliable or predictive about this incident, this case, this proof, and as a result it is likely prejudicial, deterring the court from carrying out its proper role as a truth-finding mechanism.
Once the student regained perspective, he easily created a blurb for character evidence application that began “Under the FRE, character evidence is generally not admissible to show . . .”
It is possible when trying to master so much material in so short a time, to lose perspective about what essays are trying to achieve. But I always see it as my greatest challenge to pull bar-prepping students out of the rote memory vortex and return a bit back to the first-semester law student brain, a little like the newly engaged bride.
So back to the wedding. One’s ability to plan and execute the perfect wedding does not promise marital bliss — only that you can plan one hell of a party. Conversely a wedding failure does not predict the state of the marriage. It just means you failed at the party. Either way, the wedding is not the marriage. Know that.
Deborah Sanders is a lawyer and bar exam coach, and is the owner of Bar-None Prep, where she teaches a bar exam preparation method aimed at creating a methodical and predictable approach to the exam while placing an emphasis on the spirit and well-being of the person taking the exam. She is also an author and writes essays regularly featured on Success.Com. She is currently writing a book entitled “The Spiritual Path to Passing the Bar," based on her experiences teaching thousands of bar exam students for over 15 years.