I Take the Bar Exam

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I sat for the California bar exam on February 21. The three-day exam is the most difficult law exam in the country. The Los Angeles Times ran a cover story on the first day of the bar with the title “A High Bar for Lawyers.” The article opened with these words of discouragement: “Today 5,260 people begin taking the state licensing exam. More than half will fail. And keep failing. Just ask the mayor of Los Angeles.” Mayor Antonio Villaraigosa gave up after failing four times. Former California governor Pete Wilson passed on his fourth attempt while Jerry Brown passed on his second. Former Stanford law dean Kathleen Sullivan had just failed on her first attempt and was taking it again. The Times article was right: 61°k> of bar candidates failed the bar in February.

I arrived with my laptop at the Ontario Convention Center about 20 minutes before the exam started at 9 a.m. That was enough time to find my assigned seat in the large conference room that housed hundreds of test-takers and several elderly proctors. I brought a cheap analog watch because the bar examiners don’t provide a wall clock and because they ban digital watches such as my dive watch. I made sure the special bar-approved ExamSoft software worked on my laptop. I would likely fail the bar if the software failed because then I would have to handwrite the exam with a damaged right hand. The result would not be legible. The software failed for two people I knew who had taken the previous bar exam in July. One of them still managed to pass. But so far the software appeared to work properly. I had only to type “begin” to start the exam.

The hall grew quiet at 8:59 as all the test takers waited for the old and very stooped proctor at the lectern to tell us to begin. We would have exactly three hours to complete three essays on any of 14 legal categories that ranged from criminal law and trusts to corporations and evidence. An exam booklet and scratch paper lay on the tabletop before each of us. I sat near the front of the hall at the end of the first section of tables. I turned around to get a good long look at the hundreds of other bar applicants who sat behind me. A sea of faces and eyes turned in varying degrees to return my gaze. The look on their faces was roughly the same: raw fear. Everyone was alone now as he prepared for the moment of truth. Many of them no doubt had jobs on the line or student loans on the order of $80,000 to $100,000 dollars. Here there were no friends or mentors or bar-prep instructors. There was no grade inflation or affirmative action. There were only your legal skills and your ability to manage the time pressure. I just wished that I had been able to get more than two hours sleep.

The proctor said to begin.

The room exploded in activity as the examinees tore into the instructions and the three essay exams. That quickly gave way to hurried handwritten outlines of the first essay. Then came the asynchronous and sustained tapping at hundreds of keyboards. It produced a soft background noise that both masked other sounds and helped energize my own thinking as soft background music tends to do.

The first exam was in the torts subfield of product liability. A young girl had gotten hurt when the car her father was driving hit an embankment. The airbag inflated and smacked

A sea of faces and eyes turned in varying degrees to return my gaze. The look on their faces was roughly the same: raw fear.

 

the girl. Could the manufacturer have installed feasible safety devices to prevent such harmful airbag inflations? The exam was an homage to Benjamin Cardozo and his theory that a manufacturer could foresee the harm that its products might cause when it released those products into the stream of commerce – and so injured plaintiffs could hold the manu- facturer liable in negligence. Cardozo unleashed this genie of foreseeability in the 1916 case of MacPherson v. Buick: “foresight of the consequences involved the creation of a duty.” Thus began the shift from caveat emptor to caveat vendor. The examiners also wanted you to discuss the doctrine of strict liability in tort that came from the pen of California Judge Roger Traynor in the 1963 case of Greenman v. Yuba Products and that ended the swift shift to caveat vendor: “The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” Never mind the moral hazard that this creates for the careless consumer. A passing grade required a further discussion of theories of express and implied warranties as well as all relevant defenses to all causes of action.

The second exam dealt with wills and community property. The law here was exclusively California law. California is a code state with a long constitution and 29 codes. The California Probate Code dictates most of the statutory law of wills and trusts in California. The California Family Code likewise dictates most of the statutory law of divorce and community property. The bar candidate still has to know a few famous California court cases that interpret key statutes and that often underlie them. The rest of the bar assumes nationwide common law or federal law. The codes reflect California’s 10th-Amendment reserved powers at work. California could outlaw wills and trusts without running afoul of the U.S. Constitution. There were no such weighty issues here.

The problem involved a dubious prenuptial agreement and a testator who leaves all his property to his previous wife – who has since had a child by him. The task was to distribute the dead man’s estate to the survivors. The writing was straightforward if you knew the California rules.

The third exam was an especially nasty property exam that dealt with leases and covenants and the doctrine of tenant waste. It had a third part on zoning variances that crossed into constitutional law and the usual suspects of equal protection and government takings. Richard Epstein would have devoured it. You had to tell the bar masters what they wanted to hear. They specifically expect you to know that government intrusion into the economy gets less “equal protection” than do matters of race or intrastate travel or procreation. This was no place to launch into a discussion of natural rights or even the utilitarian merits of allowing the state to regulate with relative impunity. You just had to tell the graders that you knew the legal rules and then try to find facts that fit or contravened the rules. I finished with only a few seconds to spare when the proctor called time and we broke for lunch.

The afternoon was a three-hour performance test that focused on professional responsibility. Lawyers have to pass a separate multiple-choice exam on legal ethics to get licensed in California or in most other states. I took and passed it two years ago. This performance test required that the examinee write a persuasive court brief in accord with an instruction set from a mock law partner. The brief could count as much as two of the morning essays. You would likely fail the test if you misread the instructions in the heat of battle. The California bar exam is full of land mines large and small. Your brief had to use the materials in two files. The first was a multipage fact file that contained a variety of memos and transcripts and other documents. The second was a multi-page law file that contained statutes and case law from the fictional state of Columbia. The issue was whether your law firm had improperly contacted two witnesses in ongoing litigation. You had to argue that it had not done so given that the other side would argue the opposite on the same facts. Lack of sleep caught up with me. I spent too much time outlining the argument section and then writing the fact summary. I had barely started writing the first of my three arguments when the proctor announced that only a half hour remained. The last 30 minutes flew by in an adrenaline-fed blur of high-

You would likely fail the test if you misread the instructions in the heat of battle. The California bar exam is full of land mines large and small.

 

speed typing. I got to my prewritten conclusion with again only seconds to spare. But at least I had finished. And the first day of the marathon was over.

I went back to my hotel room and processed emails and phone calls. None of my engineering colleagues or students at USC knew that I was taking the bar. I had worked the week before and would be back lecturing in statistics all afternoon on Friday. My editor at Viking/Penguin thought I was going over the corrections for my new book “Noise.” My friend Mitch and I took our wives to a steak dinner at our hotel next to the convention center. Our wives were managing things for us during the bar. Then I chewed some melatonin tablets and went back to my room and finally got some sleep.

The second day was all multiple-choice questions. There were 100 problems in the three-hour morning session and 100 in the afternoon session. That comes to an average of 1.8 minutes per question. Each question had a tricky “fact pattern” that could run into paragraphs. The subject could be anyone of seven legal categories. The hardest were property and contracts. Almost all would-be lawyers around the country had to take the same 200-question test on that Wednesday. That’s why they call it the MBE or the multi-state bar exam. Each state creates its own written exam for the second day. California extends it to three days with the two half-day performance tests. Most examinees find the MBE the hardest part of the bar. I had prepared for it for quite a long time: I had worked over 40,000 timed multiple-choice problems and still have the answer sheets to prove it. So I finished early and almost enjoyed the experience. A lot of bar candidates don’t finish the MBE and just mark the answer “e” in the last five minutes. My only problem was that there was no background keyboard noise that day. So there were more annoying sounds than on the first day and it was often harder to concentrate.

The third day had the same form as the first. There were three essays in the morning and a performance test in the afternoon. The first essay was the hardest. It was a typical civil-procedure affair that combined the ever-testable issue of a state court’s personal jurisdiction over a defendant with the thorny final-adjudication issues of res judicata and collateral estoppel. The second essay was an ambiguous contracts problem that involved the buying and selling of widgets.

The last part crossed over into professional responsibility because a lawyer had been dealing in widgets with his client. The third essay was a cops-and-robbers problem in criminal procedure. It dealt with a search and potential Miranda violations as well as a suspect lineup and jury instructions. I worked last summer as a bar-certified law clerk for the Los

Angeles District Attorney’s Office and prosecuted similar cases in felony preliminary hearings. So I found it the easiest essay exam of all. The final three-hour performance test required the bar candidate to write an appellate mediation

The old proctor read a final set of post-exam instructions and then dismissed us. The large hall erupted in applause. The great dreaded ordeal was over at last.

brief to help a widowed client overturn her wealthy husband’s will and get a large portion of his estate. There was again a thick fact file and thick law file. But I finished this one with enough time to run the spell-check software.

The old proctor read a final set of post-exam instructions and then dismissed us. The large hall erupted in applause. The great dreaded ordeal was over at last. Mitch and I went to the parking lot where we stood and drank canned beer as if we were teenagers skipping school.

Then came the long wait – and daily bar practice and mounting self-doubt. You have to assume that you will fail such an exam given the low pass rate and given the subjective nature of how teams of lawyers grade the essays and performance tests. Examinees also argue online and elsewhere over which issues they think the examiners wanted you to raise and how to answer them. Everyone sees issues that they missed or argued the wrong way. It’s worse than that because it is hard to remember what you wrote during so many hours of high-pressure examination. It gets worse still when the examiners publish the questions about a month later. They don’t publish sample student answers until after they announce the results on judgment day. Those who fail get the written portions of their exams back. Those who pass never do – they just know that they passed the bar.

The examiners published the results online at exactly 6 p.m. on May 19. The special bar web site had on that day an hour-by-hour countdown that served as a drum roll. It became a minute-by-minute countdown in the final hour. I joined thousands of other bar candidates and tried to log on at 6 p.m. We jammed the site. I finally got through at 6:07. I typed in my ID number and then there was my name. Below it was the long-awaited legalese: “The name above appears on the pass list for the February 2006 California Bar Examination.” I entered my ID again just to make sure. Yes: I had passed the bar. I would not have to sit for it again in July or ever. It was finally and exquisitely over. I soon got my paperwork from the bar examiners and went to Maui with my wife for three weeks of open-ocean snorkeling and the consumption of spirits atop warm golden sand. A local judge swore me in when I got back. I was admitted to the federal court a short time later.

Now I am licensed to sue. The odd thing is that each day I still do a little bar practice.

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