Bar Exam Predictions and the California Bar Exam

Hello Everyone, (Please NOTE: this post was written on January 10, 2009, for current “prediction” coverage, see our home page).

I have received many requests in the past week for exam predictions.  It is that time of year.  If you have read past postings, you will know that I believe it is not wise to base your studies on essay predictions.  Instead, you should prepare for all subjects equally. However, this does not mean that it isn’t a good idea to know what has been tested in recent examinations or to develop a sense of which topics or combinations of topics might be likely scenarios on the upcoming exam.  This just makes sense.  You should know the test you are about to take extremely well.

Each bar round our students take a three-day, simulated bar exam.  The exam is given under exam conditions.  We use real bar exam questions for the exam.  In preparing this mock bar exam, I review the past 6 bar administrations.  I do this to determine which topics I will include in that bar round’s mock exam.  I choose exam topics that I have not seen in recent administrations as I believe that these may have a greater likelihood of showing up on the next bar exam.

One of the certain things about the California bar exam essay section is this: each bar round the examiners repeat one or two (and sometimes even three) of the subjects that were tested on the prior bar exam.  Usually it is at least two subjects that repeat.  If you look at the past bar exam administrations you will see proof that the subjects repeat from one round to the next.  As a result, it makes trying to predict the next set of essay subjects to be tested unrealistic.  In addition, it means that you would be foolish to think that if a subject were just tested on the July 2008 bar exam, that this subject would not show up on the February 2009 bar exam.

Since the same subject will often be tested on the essay exam from one round to the next, it is important to review the past exams not in terms of which subject was tested (i.e., Torts, Criminal law, Criminal Procedure, Wills, Contracts etc.) but, instead in terms of which topic within a subject was most recently tested (i.e., Defamation? Negligence, Murder, 4th Amendment, 8th Amendment, Will formation, codicil, undue influence, Contract Formation, Common Law, UCC, Remedies, Conditions etc.).

This is what I look at when I am preparing our simulated bar exam for our students.  And, this is also the same source that I go to in order to provide “predictions”.   I try to be very careful with the word prediction in the bar exam context.  First of all, it is misleading to even suggest that someone could predict the bar exam essay topics.  But, if the bar examiners were going to test contracts again on the February 2009 bar exam (it was tested on both day one and day three of the July 2008 bar exam) then perhaps the examiners would be more likely to test areas within Contracts and Remedies that were not heavily tested on the July 2008 exam.

Similarly, it would make sense that if the bar examiners have historically, over many years, tested certain areas, and one of those areas has been glaringly absent in recent years, then perhaps the examiners will test it soon.  Just seems to make sense, doesn’t it?  Well, I think it does.  Still, this being said, I do not believe that you should place a great deal of stock or reliance on what anyone might predict for the exam.  If it helps you think about possible scenarios, fine.  But, if it is something that you use to direct your studies away from less predicted subjects or less likely expected subjects, then it is nothing short of dangerous.  Be prepared for every subject and each topic within each subject.

Okay, I am not going to provide a list today of predictions.  I will, however, pass along some of what I address in my lectures about areas that are probably worth a little extra attention simply because the bar examiners have not tested these areas in some time.

As I teach each subject in our bar review course, I let our students know which areas of that topic were tested recently and which areas have not been tested recently.

For example, when we covered the subject of Torts, I let my students know that Strict Liability and Negligence were recently tested (one year ago on the February 2008 exam, an exam for which I sat and passed, by the way, I had taken it successfully in 1994 as well).  I also pointed out that Defamation had not been tested in some time.  And, that nuisance and the process torts (malicious prosecution and abuse of process) have not been tested in a long time.

I continue to point these things out regularly as we cover each subject area. Then as the bar draws even closer, we spend time reviewing additional essays that have tested these very topics (the topics that have not shown up in a while).  It is not that all will show up on the next administration, or that it would be wise to study only these areas.  However, I know that our students reap a great deal of confidence from this exposure simply because when they do arrive at the exam and open their essay booklets, they will inevitably see some of these areas tested in exactly the same way on exam day.  This is a great confidence builder.

Still, I constantly reinforce with my students that anything can be tested (for example, First Amendment speech and Murder essays have shown up back to back on not just two administrations, but three in a row in some years).  Other topics have repeated in this same fashion.  Therefore, while predictions are very tempting not only to make but to rely upon, it is not a good way to decide which subjects to review or study harder.  Instead, study all of the subjects, of course.

I will do my best to provide postings about some of these subject areas that I believe the bar examiners might be more inclined to test soon. For example, the 8th Amendment.  We have seen a lot of Criminal law and Procedure in the past couple of years on the California bar exam. But, one area that has not been tested in a very long time is the 8th Amendment.  The two main areas that are tested for the 8th Amendment are Bail and Sentencing (specifically, Capital Punishment).  Our 8th Amendment exam writing template is a great coverage for this area.  If you would like a free copy of our 8th Amendment Approach, please contact us at: (562) 799-5581 and we would be happy to provide you with a copy.

As I am committed to teaching my students who are currently enrolled in our program, I will not likely be available to discuss the template.  However, please feel free to obtain a copy from our office.

Oh, and one final comment for this post about “predictions” – nearly every bar review course is probably predicting both Civil Procedure and Evidence.  These are obvious predictions because neither was on the last administration of the bar exam.  Evidence has not been tested since July 2007 (when the new subject coverage began).  Something else you might want to keep in mind is that Evidence Transcript Style essays have not been tested in several years.  Just food for thought.

Incidentally, I do not intend to pass along every point that I make in my lectures regarding predictions.  I do not think that my students would even think that was fair as they chose to enroll in Bar None Review and paid the associated fees.  But, I will provide some information here when I can and to the extent that I think is both helpful and fair.

Thank you for reading and please feel free to leave a comment here on my blog or to email me directly at:

Good luck in your studies!


Lisa Duncanson
Program Director/Founder
Bar None Review
(213) 529-0990