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The bar exam is now less than a month away. This weekend is often one of the most critical weekends in a July bar examinee’s review period. Many are starting to realize the sheer weight of what has to be done and fear starts to creep in and even take over. Anxiety starts to run high, and if allowed to go unchecked, can be any bar examinee’s demise.
It is normal to experience some anxiety and fear during this time – especially when you think about how much you might still need to learn, let alone memorize. However, it is important that you put things into perspective. The bar exam, while now less than a month away, is not tomorrow. You have time to improve and to work on memorization. One of the best ways to eliminate anxiety is to start memorizing the material.
One of the most common questions I field every bar round is:
“How the heck am I going to memorize all of this material? There is so much to memorize!”
One of the challenges of the bar exam is that students often suffer from information overload. Sometimes, the more diligent a student is, the more they read outlines and the more they try to memorize volumes and volumes of material.
While it may seem like the right thing to do, I caution students against getting into a rut of reading extensive and lengthy outlines to the exclusion of other things that should be done (like: reviewing and study past essay exams and answers, practicing and studying past MBEs, writing practice exams under non-timed conditions and writing timed exams).
Reading outlines that are 1oo to 150 pages for each subject and trying to commit these to memory for 15 subjects is not only very difficult, but it can become counter-productive. Instead, start carving out time to review past exams and answers. By reviewing and learning from the actual past exams, you will help bridge the gap between being able to recite an outline and being able to write an actual essay answer.
SPEND TIME LEARNING BY STUDYING THE TEST
The only way to really know and understand the material, is to see it in the context of the exam. Will reading essays and completing MBEs alone be enough? Not likely, but without this kind of review, failure is almost certain. You need to not only put your knowledge to the test and practice the test, you need to learn from the test.
Here are some suggestions of what I think you should consider doing in the coming days leading up to the bar exam. If you do these things, it will make the job of memorizing the law much easier.
- It is imperative that you understand the law you are memorizing.
One of the biggest mistakes that examinees make is to fail to truly learn and understand the material. There is sometimes such a focus on memorization that examinees delay reviewing the actual test. This can prove to be disastrous. You do not want to wait until the bar exam to figure out if you actually understand how the issues arise. Rule statements are important, but being able to determine when something is at issue or not, will require that you understand the law and how it is tested. Being able to write rule statements from memory does not necessarily mean that you understand (when faced with a fact pattern) what the issues turn upon.
It is key that you are able to understand the material, and not just being able to recite the rules. So when you think about memorizing the material – think about first “understanding the law.” This means: understanding what the terms mean, how the issues are generated and how the issues are tested. Once you understand the material, memorizing it will be much easier.
2. You need to see (and learn) the material in the context of the exam.
Again, being able to recite rule statements is something that most examinees strive to do and do so fairly effectively. The problem is that your job on exam day is not going to be to simply write out a Contracts outline or to write out a Torts outline. Yet, if you think about it, examinees often spend their time preparing for the exam as though the exam consists of simply reciting rules. While it is certainly a help, it is only part of what is needed to pass the exam. Successful examinees not only are able to recite rules, they know how the material is tested and understand the material in the context of the actual exam.
To do this, you should review past essays and answers. When reviewing essays, really study the answers and pay close attention to which issues were addressed in the answers and how these issues arose from the facts. Reading essays and studying the answers is critical to passing the California bar exam. There are simply ways that the material is tested that are not intuitive and will be lost on you unless you actually see it in the context of the actual exam.
For the MBEs it is critical that you learn how Torts is tested, how Constitutional Law is tested, Property, etc. This is key. The best way to accomplish this is to study past MBEs (I recommend that you work on NCBE drafted MBES ONLY). Three sources for NCBE released questions are: 1) The Strategies and Tactics for the MBE by Walton and Emanuel, 2) Adaptibar and 3) the National Conference of Bar Examiners.
The reason you want to focus your attention and energy on the NCBE released MBEs is because it will be important for you to align yourself with what the National Conference of Bar Examiners is testing, how they are testing, as this is will be the closest approximation to the actual test. Think of it this way: you need to know what the NCBE think amounts to a taking by force such that a robbery occurred rather than what you think factually amounts to a taking by force or what your law professor thought was a taking by force. Focus on completing NCBE MBEs (timed as well as non-timed review of MBEs is important – more on this in a future post).
3. Work on memorizing a condensed version of the subjects after you have spent time reviewing past exams.
It will be so much easier to memorize material that you actually understand. As I suggest above, one of the best ways to gain an understanding of the material is to see how it is tested. Once you have studied how products liability is tested, you will have a much easier time memorizing what you need to know for Products Liability. What you actually have to memorize becomes less as it represents what you fully understand.
Products liability is a big topic with a lot of detail. However, to be able to successfully navigate a products liability exam you will need to be able to have an approach for, and a condensed version of, products liability memorized (and, of course, understood). For example, the following would be a good approach for Products Liability:
- Introductory statement: The plaintiff may recover under products liability for the following torts: 1) intentional tort (usually battery), 2) negligence, 3) strict products liability (for defective product) and 4) under the warranty theories (implied warranty and express
- Intentional Tort (here plaintiff may be able to prove the tort of battery if they can show the defendant knew with substantial certainty that a harmful or offensive result would occur – look for facts that state percentage rates of failure – this suggests the defendant knew with substantial certainty that _% of the time the product would cause a harmful or offensive result. This is always a quick discussion, but worth points by addressing it quickly – this is generally addressed in every released answer for products liability essays, yet many examinees miss this point).
- Negligence – all in the commercial chain owe a duty to plaintiff – reasonable manufacturer, reasonable retailer etc. Write a normal negligence discussion, but focus on drawing attention to the breach as being a failure to warn or negligent design as these will be easily referred to once you are in your strict products liability discussion.
- Strict Liability for Defective Product (unreasonably dangerous) – strict liability attaches by placing an unreasonably dangerous product in the market place. Your focus will be to prove that the product is a defective product. There are three ways to prove this: 1) manufacturing defect (rarely tested on the essays), 2) design defect (often tested) and 3) warning defect (often tested). Prove up one or more ways the product is defective, then briefly discuss causation (which you can refer back to your discussion of under your Negligence call – if you have already discussed negligence) and then conclude (of course discuss any appropriate defenses – i.e., assumption of the risk, learned intermediary, etc.)
- Warranty Theories
- Implied Warranty of Merchantability – implied into every sale that goods are of fair and average quality and fit for the ordinary purpose. This is something you will typically address on EVERY products liability essay as it is always present.
- Implied Warranty of Fitness for Particular purpose – you may or may not need to discuss this warranty – it must be generated by the facts.
- Express Warranty – you may or may not need to discuss this type of warranty – it must be generated by the facts.
Note that you can condense this even further and ultimately turn it into a checklist/shorthand approach for products liability.
Getting a handle on how the substantive material plays out on the essay exams (as well as how it is tested on the MBEs) is critical to your success. The above is an example of how you should be viewing the material. How much easier would it be to write a products liability exam if you actually knew, going into the exam, what areas to write on and for how long? Studying past bar exam essays and answers will help you not only with your understanding of the law, but also with your memorization. Memorizing a step-by-step approach for each area will enable you to get to writing your answer more quickly because you will know how to start your exam. Your answer will look more organized, your issue coverage will be better and it will look like you know what you are doing because . . . you do.
I will write more in the coming days about how to make the best use of the time you have remaining and techniques for memorizing.
Until then, happy studies!