The Bar Exam: Why Some Fail

There are three reasons people fail the bar exam. “Not smart enough to pass” is not one of them. In fact, only one of the three reasons provides a clue that someone may not be happy practicing law. I am convinced that anyone who earns a law degree, including one that finishes at the bottom of one’s class, has the mental capacity to competently practice law. Intellectually, much of law school is more challenging than most of the work that lawyers do. The problem is that the bar exam doesn’t test one’s ability to practice law; it tests one’s ability to pass a multi-day test.

So why do some fail?

Reason One: Stress

There are smart, hard-working people among us who are not “good test takers.” One might wonder how these folks did well enough on the LSAT and law school exams to make it to the bar exam, only to not have the test-taking skills to pass. Wouldn’t those who can’t pass the bar exam have been weeded out during law school?

No. The bar exam asks one to slay a unique dragon. The amount of material one must master, the multiple-choice section that takes an entire day, the weeks spent studying, and, most importantly, the fact that failure can mean no job builds up anxiety that can result in an inability to function well enough on test days to get a passing score. I’ve heard people say that someone who can’t overcome bar exam stress probably can’t overcome the stress of lawyering. I disagree—bar exam stress is different from any kind of lawyering stress, and more intense as well.

Reason Two: Carelessness

A friend of mine failed the exam on the first try, then passed with ease on the second try. He failed the first time because he rushed to begin work on the MPT portion (the first section on day one) without first being certain that he was clear on the exact kind of response that was required. He realized his mistake with ten minutes left, tried to fix his work but could not, then spent the rest of the exam trying to calm down—see Reason 1 above. Other typical failures in this category include screwing up MBE answers by mis-filling in the bubbles, losing track of time, leaving MBE questions unanswered, etc.

Reason Three: Unintentional Intentional Failure

I knew a guy who did fine in law school, then did not start studying for the exam until a week before the test. He failed. One can’t cram for the bar exam in a week. I took two weeks off work before the exam, but I was at Bar/Bri 4 evenings a week and at the library on weekends for 7 weeks before that. While it is possible to over-study, (I found after eight hours of studying I was no longer productive) lack of studying will result in failure.

Why would someone not study for the bar exam? It’s possible that some really are arrogant enough to think they don’t need to, but I think the most likely reason is that those who do not study for the bar exam hated law school, not just the exams, but the study of law itself, and deep down, really don’t want to work as lawyers. Failing the bar exam is a last escape hatch to freedom from an unhappy life as a lawyer. As someone who has changed careers several times already, I think this kind of realization, even if it leads to failing the bar exam, reveals a healthy level of self-awareness as much (or more) than mere irresponsibility or immaturity. If more recent graduates made the same realization, there would be fewer miserable lawyers, and more jobs for those excited to join the profession.

(photo: http://www.flickr.com/photos/fireflythegreat/5972734814/)

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  • http://www.ktbattle.com Kate Taylor Battle

    I think a fourth reason is because some people study in the wrong way. Whereas many law school exams are open book or based on concepts and the quality of your explanation, simple black letter law is much more important on the bar exam. After spending 3 years learning how to dig really deep into concepts, the bar exam is much more like a “read, learn and repeat back” type test that you might have had in an undergraduate class. Some people get too caught up trying to understand each area of law in too much detail rather than just learning to memorize the law, identify the issue in a hypothetical and very simply apply it on paper. While your professor might have awarded longer, more detailed answers in school, the bar examiners won’t award you a CALI for the best answers. In my study course, one of my teachers said something that really rang true: Studying for the bar is about passing not about making the top score. If you focus on too many details, you could exhaust yourself while studying and waste time while writing answers during the exam.

    • Goaty McCheese

      I liken bar exam questions to having a client come into your law office with a legal problem to which he expects you to give some kind of immediate answer. Your answer has to be presented clearly enough that the client can understand it. The answer also has to show that you listened to the problem and appreciate the issues involved. And, it has to show that you thought your way through to an answer logically using general principles that you make clear to the client. That’s it. It’s not, a demonstration of how qualified you are or how much you know. Bar exam questions are in one sense really simple: just answer the question in a way that the asker would walk away happy he’d asked you.

      1. While I sort of agree about not going into too much detail on the bar exam, I could not disagree more with the “read, learn and repeat” advice. Reciting black letter law is absolutely not what the bar exam is about. The bar examiners are looking for analysis. They want to see you apply the law sensibly, whether you recite it or not. They want you to spot the legal issues in play and reach a conclusion on those issues – and they want you to show your reasoning in getting from the issue spot to the conclusion.

      While you will obviously have to state some legal principles as part of your analysis -and those principles must be accurately stated to the degree that you state them- reciting black letter law in and of itself is useless on the bar exam. Nobody cares if you know the black letter law. In fact, it’s a big red flag to the testreaders that you are unsure of how to analyze the question or reach a conclusion. Finally, it wastes time that could be spent thinking about the question.

      (Incidentally, by “reach a conclusion” I do not mean that you have to reach a *correct* conclusion. I mean only that you have to reach one and back it up with analysis. The testreaders do not actually care what conclusion you reach, so long as it is based on good analysis.)

      2. The point about not going too deep into detail is well taken. I would rather state it thus: budget your time and hit all the big issues before you worry about the minutiae. Do not attempt to make up in detail what you miss in breadth.

      On a typical bar question there are at most only four or five big issues. Make sure you give IRAC or CRAC form answers to all of them. (Quite possibly that is all you’ll have time for anyway.) If you do this, you will get full points. By contrast, if you go deep into the minutiae on two of the five issues, medium detail on the third, gloss over the fourth, and leave the fifth undiscussed, you’ll get full points for three issues, half points for the fourth issue, and zilch for the fifth.

      Plan your answer before you write, using your analyses of these four or five issues as the structure for your answer. Then, if you have time, you can go into deeper detail about particular issues.

      In conclusion -see what I did there?- your answer has to clearly communicate your understanding of the question asked and how you work to a solution via legal analysis. Your answer does not have to be correct or final, and it should not have to rattle off a bunch of memorized laws to impress the client.

  • http://www.constitutionaldaily.com BL1Y

    “I am convinced that anyone who earns a law degree, including one that finishes at the bottom of one’s class, has the mental capacity to competently practice law.”

    That’s a very low standard. You can find a law school that will take you with LSAT and GPAs well below the median. And, law schools rarely have people fail out; the high tuition has forced school to reduce attrition. Basically, sleep through undergrad, get drool on the LSAT, acquire massive amounts of unsecured credit, then show up to most of your law school classes, take a note or two, study for three weeks a semester, and graduate. That’s not too great of a mental capacity.

  • Mark Leipold

    As a corollary to the “study the wrong way” comment. Study what the bar prep service wants. It is not about know the law, it is about passing the bar. Don’t bring out your class notes to deal with Torts.

  • http://siouxsielaw.com SiouxsieL

    Another reason — just plain bad luck. Sometimes you just have a bad day.

  • Mike

    I’ve passed and failed a bar exam and in that order. The bar that I passed was a breeze and my preparation was entirely self study. I believe that the reason I failed the bar was because it had been a few years since school and I didn’t trust my ability to self study again. I went with a bar review course (Themis) and all along had a bad feeling about the methodology, but kept telling myself to stick with it. In the end, I studied at least twice as much as the bar that I passed, but ironically failed because I spent countless hours studying in a way that didn’t work for me. I retook the test, passing up the free repeater course, self studied, and passed. Many say to trust the review course. I say trust yourself.

  • lawyerintime

    I went to cooley and the bottom of my class and have a detc undergrad (no joke) that had a 2.25 gpa and a 146 lsat.

    my cooley gpa was 2.3

    I do not feel good about the bar………………..