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.