The July 2021 Bar Exam is in 64 days. If you are a repeat bar exam taker you may still be figuring out what you are going to do – studying on your own, taking a class or hiring a tutor or even skipping the July bar exam and try again in February. By the way, I do not recommend waiting until February. If you have failed the bar it is almost always best to take the very next bar exam.
Whether you are taking the bar for the first time, are an attorney taker or a repeat bar examinee, you should begin your studies now. You do not have to dive in full time but, it is critical to get going on your review as soon as possible. If you are still deciding whether to hire a bar prep company or other assistance, that is okay. But, do not let your decision making process delay your studies.
Here is what I suggest for General Bar Takers:
As you know, if you are taking the general bar exam, you will need to prepare for both the written portion of the exam and the MBEs. I have written a lot about preparing for both sections. The first thing you should do is to start reviewing past exams. While most examinees will start by reviewing outlines, I encourage you to go straight to the source and relearn the substantive law in the context of the bar exam. This does not mean that you never review outlines or work on memorisation. But, understand that people who have memorized all of the law and repeat definition after definition verbatim, do not always pass. And, in fact, many examinees who approach the exam by studying and memorising outlines are unsuccessful on exam day.
This is because writing a solid, above passing essay requires much more than rote memorization. The same is true for the MBEs – memorizing the law only gets you about half way there. Instead, you need to focus on the past exams, and learn the material in the context of the exam.
Let’s take an essay topic of defamation. If you were to see a defamation exam on the bar exam you, like everyone else taking the exam, will know immediately that is a defamation exam. And if you are like most examinees who have studied excessively long outlines, but never written a defamation exam, you will be hard pressed to provide the examiners with a passing answer.
The reason for this is because most examinees fail to understand what the bar examiners embrace and expect.
Did you know that almost every defamation essay requires you to discuss either the privacy torts or the economic torts and intentional infliction of emotional distress? You probably do know that you may also need to discuss vicarious liability (respondent superior – Courier News is responsible for reporters actions).
Most examinees spend their time on Common Law Defamation (defamatory statement, of or concerning plaintiff, published to a third) and then type the defamation as either libel or slander, then move on the public figure or private person and apply the applicable tests and defences. If this is all you do, it will be a fail.
Virtually every defamation exam answer gives a quick nod to IIED. You do not need to do a full analysis of IIED (nor should you). Instead, let the grader know that the plaintiff may have a cause of action for IIED and quickly state why. Here is how this should look:
Intentional Infliction of Emotional Distress (IIED)Here, the plaintiff may be able to recover for IIED if she can show that the defamatory statement(s) were extreme and outrageous and that she suffered emotional distress.
That is it! There will not be any facts that the plaintiff suffered emotional distress or that she is entitle to any damages for emotional distress. HOWEVER, your job is to prove to the bar examiners that you should be out there practicing law. If you are unable to suggest related issues then you should not be taking on clients. By addressing the possibility (very briefly) that the plaintiff might be able to make a claim for IIED, you are showing the examiners that you know what you are talking about.
The next two possibilities for testing on a defamation essay are: Economic Torts and the Privacy Torts.
Nearly every defamation essay will test one track or the other. I have never seen an essay in California that tested both Economic Torts and Privacy Torts.
Examinees miss these areas so often because they are excepting to see damages if there are economic torts. For example, let’s say that a butcher is defamed by a dissatisfied customer who falsely claims that the butcher shop’s owner is selling meat that is infected with Mad Cow disease. The statement is untrue and is a basis for a defamation claim everyone will recognize that it is demotion. But. what most examinees fail to realize is that the bar examiners want you to discuss both Interference with Prospective Advantage and Interference with Contract. This might seem like a reach especially when the fact pattern does not mention a contract or any lost sales.
Still, I promise you that when the person defamed is in business – any defamatory statement about that plaintiff – should direct you to discuss the Economic Torts. Here is how you should do it:
Here the plaintiff may be able to recover for Interference with Contract if there was a contract in existence, the defendant knew about the contract and due to defendant’s statements interfered with the contract causing damages.
You do not even need to do that much work, you can instead simply include a heading for Economic Torts and state that the plaintiff may be able to recover for Interference with Contract if the defamatory statements caused a loss of business. Plaintiff may also be able to recover for Interference with Prospective advantage if it is shown that customers stopped coming to the shop.
To hear about how to handle the Privacy Torts on a defamation exam, stay tuned for an upcoming video or sign up for the May 29th Bar Exam Cram Session.
My point of all of the above is to get you on track.By the time you sit for the bar exam you will know that to make a claim for Interference with Contract requires that a contract be in existence, that the defendant knew of the existence the contract, that the defended intentionally interfered with that contract and that the plaintiff suffered damages.
Here is the rub, knowing the rule well leads to missing this issue. Why? Because the most defamation fact patterns will not mention a contract or any business losses (economic injury). So, if you know the rule well, you will not address it because you do not see any facts to support the claim. But, the bar examiners not only want you to address interference with contract in this setting, they expect it.
Can you pass a defamation exam without briefly addressing IIED and the potential for either the Economic Torts or Privacy Torts? Maybe, but not likely.
I wrote all of this for you to illustrate just how important it is to review past California Bar Exams and the released answers.
Without a review in the context of the actual exam, you would never know that this is expected. And, sadly, most bar prep companies and tutors do not know this is expected – so how are you supposed to know?
It frustrates me every bar round to see students who have taken the exam with courses like Barbri and Themis and followed the directions but have failed. I am not here to disparage any bar review company, but you need to know that truth – simply memorizing the law will only take you so far.
Every topic has required issues that need to be either addressed quickly or even just mentioned. Most examinees do not have a clue as to what needs to be added. The most important thing you can do to improve your scores on the essays is to review past essays and answers. This will inform you of the areas that are not obvious but that are necessary to address in order to do well. I can not emphasise this enough.
I hope you found this helpful. I have a few videos available on my Youtube channel at Bar None Review that go over approaches for exam topics with these “extra” areas the examiners want you to address that unless you are told it is required, you will likely miss. Watch this video for another example of commonly missed issues when addressing First Amendment Speech essays.Please note, in this video I reference the February Bar Exam Cram Session because I prepared this video before that session.