Over the course of this summer and fall, nearly half of states will administer online bar exams, and that number could grow considerably between now and October. There are very serious equity and privacy concerns surrounding remote bar exams. Diploma privilege is the only just and equitable option. However, since this summer has demonstrated how wedded to the establishment the legal profession is — even in the face of a global pandemic and mounting evidence that the bar exam is not a good measure of competence to practice law — this commentary is not about what a bad idea the rushed remote bar exam is. This commentary is about how you can pass it.
Despite the seemingly constant moving target of dates and formats, you have been studying for the bar for a while now. The basic process of answering questions is the same online as it is on paper. For MBE questions, read the call of the question first to situate yourself, then read the fact pattern, and then read all of the answer choices. Use the process of elimination to select the best answer among the answer choices you are given. Remember that the answer choice may not be perfect. Often the prettiest answer — one that looks like a beautiful statement of the law — is incorrect. Make sure that each answer choice (1) correctly states the law (look out for statements that are overly broad or too narrow), (2) does not contradict the facts, add to the facts, or assume facts that are at issue, and (3) that it is relevant and responsive to the question you are being asked.
For the essays, also read the call of the question first. If it is open-ended and does not help you figure out what doctrine you are in, or what the issues might be, then read one or two lines up from the call of the question. Then read through the fact pattern and start to outline your answer by writing down rules that are triggered in your mind as you read through the fact pattern. Put relevant facts under those rules. Spend approximately one-third of your time (10 minutes) on this reading and planning process. The more complete your plan is, the fewer times you will have to go back to the essay and re-read the facts. Remember to use IRAC or CRAC. Your rule statement does not have to be perfect – no one else will know exactly what was written on your outline or flashcard. But, make sure you apply every component of the rule that you state. Your application section should mirror your rule statement. Every sentence in your application should connect the law to the facts and answer the question of why a rule is met or not met. Bar exam graders read very quickly. You don’t want them to have to make any connections between the law and the facts. Spell it all out for them as if you are speaking to a child who doesn’t know the law and constantly peppers you with the question “why.” A simple way to ensure you are doing this is to restate the law, insert the word because, and then state the relevant facts. This “law because facts” formula can help keep you from just restating the facts or writing a conclusion, instead of actually applying the facts to the law.
For performance tests, follow the same plan you were using when you were practicing them with paper booklets. Read the assignment memo closely. Figure out what your role is and what your tasks are. Then go to the library. Read through the statutes/regulations, and look for them in the cases. When you are reading through the cases, look for rules. The cases usually provide a test that demonstrates how courts apply one of the rules in the statutes. The cases are giving you the structure for how you should organize your argument. They will also give you facts to analogize to/distinguish from the facts of your case. Once you have a sense of the rule structure, go back to the file, and begin to situate the relevant facts in pieces of that rule structure. You should spend a full 45 minutes reading and planning, and another 45 minutes actually writing out your answer.
Of course, the big difference between taking the exam online and on paper is the ability to have scratch paper and make notes directly on the documents themselves. I agree that this is a significant downside. But, you have enough time between now and October 5 to practice making notes on the computer. While not all jurisdictions have released information about technical specifications yet, many have, and there will likely be a virtual notepad function available on your exam. Get used to this now by doing all of your practice questions on the computer with a document open on part of your screen where you can make notes.
For the MBE, the primary concern is not being able to make diagrams or timelines. Diagrams are particularly useful for long real property or contracts questions where you need to keep track of multiple conveyances or communications, and where you want to visualize where properties are in relation to one another. Practice converting your diagrams and timelines into words. For example, if Blackacre is to the west of Greenacre, and the owner of Greenacre has an easement over Blackacre, you could do something like this B-L-A-C-K-A-C-R-E <– GREENACRE. Ideally, you could make your symbols even shorter. For a timeline, instead of drawing arrows, you could just have dashes and make it look something like Seller-Buyer, then Seller-Developer (no notice), then Buyer-Friend (constructive notice). It’s not as fast or intuitive as just drawing out symbols, but with a bit of practice, it will begin to feel comfortable.
For the essays and performance tests, use your answer field to begin making a thorough outline while you read. For the essays, that means turning the calls of the question into issue statements if you can, and then jotting down rules that you think of as you read the facts, with the facts that triggered those issues in your mind directly under the rules. You don’t need to write down the full rule as you are reading, something like “statute of frauds – telephone call” is sufficient. Read the calls of the question again to make sure you are situating the right rules and analysis in response to the correct questions, and then draft your essay. Again, it’s a good idea to spend a full 10 minutes reading and outlining. Spending time on outlining will reduce the amount of time you spend re-reading the fact pattern.
The performance test is the component that, quite understandable, makes people most nervous to do online. It is a lot of material to process in 90 minutes when you have the paper in your hands and can flip back and forth. Scrolling up and down on a small split screen is daunting. But, that’s why you want to minimize the amount of scrolling you have to do. Just like with the essays, use the answer field to create a detailed outline for yourself. As you read the assignment memo, turn your tasks into point headings. If you don’t feel ready to create the point headings yet, then just jot them down as section dividers or questions, which you can turn into point headings later. Go to the library and read the statutes, then the cases. Write out the full rule from each case into your answer field as you are reading it. Type out the relevant parts of the statutes as well. Jot down a few words about the case facts to remind you to analogize later. Then go to the file and write notes about relevant facts under the rules they apply to. Creating a thorough outline as you read will prevent you from having to scroll back and forth as much in the MPT itself. Go back to the assignment memo one more time to make sure that you are correct about your tasks and organization. Then start writing. Remember that the reading and planning process should take you a full 45 minutes. Spending time processing and planning will make your writing go more quickly and will reduce scrolling back and forth between parts of the MPT.
Pay attention to your timing as you begin to practice everything on the computer. Many of us are used to reading a lot on screens, but we are not used to carefully, closely, and critically reading on screens. As we scroll through social media or read news articles, processing what we are reading does not require us to parse the meaning of every single word. But on the bar exam, there are no extraneous words. People tend to read more quickly and more superficially online, so you need to train yourself to slow down and take in each word. Yes, you will have to move quickly on exam day, but if you slow down now and get used to the format, you will speed up over the next eight weeks, and you will get your timing where it needs to be.
Finally, just as you would do if you were going to a physical location, make plans regarding space and snacks. Figure out where you will take the exam and have a backup location. If you can study in the same space where you will be taking the exam, that can help with rule recall, as you may be able to visualize when you memorized a certain piece of doctrine. If you are taking the exam at home, tell everyone you live with and all of your neighbors that you will be taking the bar exam on those days and that no one can contact you. If you will be going to a different location to take the exam, figure out exactly how you’re going to get there and have a backup plan. Make sure that your computer meets all technical requirements, and practice using the software several times. Figure out what you will eat before the exam and what you will do during the break. Eat foods that are familiar to you and that you know will give you energy, not drain it. Don’t do anything on the days of the exam that you haven’t done before.
The key to success on the bar exam has always been to practice the bar exam. While this new format is not ideal, you have the time to practice and get more comfortable with it. Having 90-minute sections instead of 3-hour sections means that you can practice each component of the bar exam more times. Get used to sitting and focusing for 90-minute blocks.
Everything is stressful and traumatic right now. Be kind to yourself. Take deep breaths. Practice every section of the exam over and over. You shouldn’t have to be doing this, but you can definitely do it, and you will!
JURIST carries extended coverage of Bars Exams in the Pandemic. See also the JURIST Editorial Board’s July 9 statement on diploma privilege entitled The Diploma Privilege Manifesto.
Allie Robbins is an Associate Professor of Law and Director of Academic Skills at CUNY School of Law. She is also the author of Passing the Bar: A Quick Reference Guide for Today’s Law Student, available for free at https://www.cali.org/books/passing-the-bar-guide, and The Activist Guide to Passing the Bar Exam blog https://passingthebar.blog/.
Suggested citation: Allie Robbins, You Can Pass An Online Bar Exam (Though You Really Shouldn’t Have To), JURIST – Academic Commentary, August 11, 2020, https://www.jurist.org/commentary/2020/08/allie-robbins-online-bar-pass/.
This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at commentary@jurist.org
