By Sarah Blaine
Studying for the bar exam requires stepping into a bizarre alternate reality. After three years of law school, my classmates and I celebrated our graduation and pretty much immediately began our bar studies.
I began with the PMBR prep course. The PMBR course is a supplemental bar course that focuses specifically on test taking strategies — and, to a lesser extent, content — for the Multi-state Bar Exam (“MBE”). All states other than Louisiana require aspiring attorneys to take the MBE, in which you have 3 hours in the morning and another 3 hours in the afternoon to answer 200 multiple choice questions. The questions are tricky, confusingly worded, and have multiple right answers: your job is to figure out which answer the test makers think is the “best” right answer. Depending on your state, your MBE score is somewhere around half of your total bar exam grade. The bar exam is high stakes: no one wants to risk failing the bar exam.
To be honest, ten years later I can’t remember whether I took PMBR’s 3 day course or its 7 day course. What I do remember is this: on the first day of the course, they gave us a sample MBE exam. After a lifetime of acing standardized multiple-choice achievement tests, I got maybe — maybe — a third of the sample PMBR MBE questions correct. Now, that might have been slick marketing strategy to convince me that the course was worth my new law firm’s money, but my take is that it was legit: I did poorly because I hadn’t yet immersed myself in the MBE’s bizarre logic.
The test prep worked. After a week of PMBR, I was scoring significantly better. I don’t recall details, but I do recall hours of analyzing individual exam questions, discussions of strategies for identifying and discarding tricky wrong answer choices, and of immersing my brain in the test maker’s logic. After PMBR ended, BAR/BRI (the comprehensive bar preparation course) began. For BAR/BRI, we packed into a large lecture hall to watch videotaped cram lectures in the bar subjects in the mornings (I still recall Seton Hall professor Paula Franzese’s Property songs, and especially her promise that when the bar exam was over, there would be ponies). In the afternoon, I sat in my house or my local library reducing my morning notes into easily memorized flashcards for cramming “black letter law” into my head.
When I couldn’t take it anymore, I picked up my then eight or nine month old from day care and played with her for awhile (yes, my first child was born in the fall semester of my third year of law school; in case you’re wondering, I graduated with high honors). Then I’d spend my evening studying more. About halfway through the BAR/BRI course, BAR/BRI had us spend a day taking a practice MBE. Because of my responsibilities as a mom, I’d been front loading my studies, and unlike many of my peers, I discovered at that point that I’d successfully immersed myself in the test-makers’ multiple-choice logic. As a result, I kicked the practice exam’s butt, and felt that I could focus the rest of my bar prep focused on the essay writing, with only a bit of continued MBE practice to keep my head in the game.
Bar exam essay writing was, again, its own unique genre. We were highly encouraged to write strictly according to the IRAC formula, in which we started with an Issue (e.g., “An Issue raised by this fact pattern is whether Fred is guilty of involuntary manslaughter”), then set out the Rule (“The elements of involuntary manslaughter are…”), then Analyzed the facts presented (“Fred’s actions meet the first element of involuntary manslaughter, because he…; Fred’s actions meet the second element of involuntary manslaughter, because he…”), and then stated our Conclusion (“Because Fred’s actions satisfy each of the four elements of involuntary manslaughter, he will be found guilty of involuntary manslaughter”). Bar exam essay writing makes for some scintillating prose.
When the bar exam arrived, my reaction was “Bring it on!” And four months later, I was gratified to learn that I’d passed. But the bar exam was a bizarrely arbitrary rite of passage. It was strange to realize that after three years of law school, I was unprepared to pass my chosen profession’s licensing exam without two months of intensive commercial test preparation. It was also strange to spend so much time learning “black letter law” (i.e., specific “rules” of law that would lead us to a particular correct answer). Even for the essays, analysis must lead you to a “correct” answer. This has nothing to do with the reality of legal practice, but it makes perfect sense to bar examiners because formulaic essays are far easier to grade. The same is even more true of the bar exam’s multiple-choice questions. Never mind that as a practicing lawyer your job is to see nuance, and to craft the best arguments you can (within the limits of your ethical responsibilities, of course) to support your client’s position. In ten years of practice, I’ve written a lot of briefs, but no judge has given me a multiple-choice test.
Compared to the bar exam, law school exams are a far closer approximation of what practicing attorneys actually do out in the real world. Many are open book, and whether open or closed book, the point of professor-written law school exams is to demonstrate that you’ve learned how to “think like a lawyer,” that is, that you’ve learned to apply legal principles to analyze and dissect the nuances presented by complex fact patterns. A typical law school issue spotter will say something like, “Read the following fact pattern [anywhere from a couple of paragraphs to a page or two]. Identify the legal issues.” And then you’ll discuss the facts, apply the legal principles you’ve learned to those facts, and analyze the interplay of facts and legal principles. The point is to figure out whether you can see the areas of concern, so that when you enter practice someday, you’ll be able to listen to your client and figure out where to start researching whether he has a case. On a law school issue spotter, there generally isn’t a right answer: the professors care more about whether your analysis makes sense than whether you’ve correctly memorized the legal principles, as they know that any lawyer worth her fees (and who values her license) will do research before making recommendations to her client.
The strangest part of the bar, however, was getting my bar results two months into my new job as a baby lawyer at a large law firm. It wasn’t strange because I’d passed: I’d worked hard and I knew I had a decent head on my shoulders. What was strange was getting that score and realizing how little bar exam study had done to prepare me for the actual job of being a baby lawyer.
When I started in private practice, I didn’t know how to do anything:
I didn’t know how to file a motion.
I didn’t know what a motion was.
I didn’t know how to draft a certificate of service.
I didn’t know that you needed to submit a proposed form of order along with your motion.
I didn’t know what a case management conference was.
I didn’t know what a discovery plan looked like.
I hadn’t participated in a large-scale document review.
I didn’t know how to mark exhibits or move them into evidence.
I certainly didn’t know how to write a deposition outline.
I had no experience taking depositions, and didn’t know the first thing about how to manage a witness.
I didn’t know what an in limine motion was.
I didn’t know that there was such a thing as a trial brief.
I knew nothing about recruiting and working with expert witnesses.
In short, like every other baby lawyer, I didn’t know squat about how to actually succeed in my chosen career (other than what I’d learned the prior summer when I’d worked as a summer associate at my new law firm). If I’d started out as a solo practitioner, I would have committed malpractice. Thankfully, however, all that issue-spotting had earned me a position at a law firm with the resources to provide me with intelligent supervision and strong on-the-job training.
Ten years on, I find that I do use the skills tested on those law school issue spotter exams. In particular, I can read the file on a new case, and use the analytical skills I honed in law school to analyze the issues in light of the law, do (or assign) research where needed, determine what additional facts I need to learn, and make recommendations to my colleagues or my clients. When we learn new facts, I can adjust our initial analysis as needed to account for the changes and to craft new strategy. Those are skills evolved from prepping for those convoluted issue spotter law school exams.
However, ten years into private practice, I don’t draw on my two months of intensive bar test prep to advise my clients or manage my work. I don’t rely on essay formulas to craft my briefs, and of course I have never encountered an MBE-style multiple choice question. But the thing is… PMBR and BAR/BRI worked. Test prep works. Test prep taught me to immerse myself in the logic of the test-makers, and how to effectively game the system to achieve my goal: a passing score. In the past ten years, I’ve occasionally encountered some pretty crappy lawyers, but they all have one thing in common: they passed the bar exam.
The fact that test prep works is what scares me as a public school parent, because as a parent I know that my child’s standardized test scores tell me virtually nothing about whether she’s actually mastered the academic skills she needs for a successful future.
My two months of bar test prep taught me that mass-produced bar prep can successfully raise scores: my MBE score skyrocketed when I left my inquisitiveness, curiosity, and thoughtfulness at the door, and instead immersed myself completely in the test-makers’ logic. I was willing to engage in two months of intensive test-prep because the stakes were so high: I could have lost my new job for failing the bar. Test prep was a means to an end, and it was an end I wanted (passing the bar so I could begin my career as a litigator at a large law firm), so I was willing to spend (my firm’s) money and my time on the commercial test prep courses. Thankfully, though, our (generally tenured) law school professors focused on preparing us for the practice of law, and not on preparing us for a soon-to-be-forgotten standardized test.
But what will my child gain from devoting 9 of her 13 years of public education to test prep? She might become a genius at immersing herself in the logic of the test makers, but will she learn to write purposefully and well? Will she learn to creatively attack a problem? Will she learn empathy and art appreciation and history and how to work as a member of a team? I fear that the answer is no, or at least not nearly as much as she would have if testing wasn’t driving curriculum.
Thankfully, my older child attends a school where the bulk of the teachers have tried hard to minimize the encroachment of test prep on the “real” curriculum, but even so, it seems to me that my fourth-grader is bringing home fewer challenging projects that engage her as a learner. She complained that her teacher has been racing through math curriculum so that they’ll have “covered” all of the topics they need for the PARCC End of Year testing. Fortunately, my kindergartener attends a K-2 public school that is relatively insulated from the test-taking pressures. Her class is making daily observations of their tadpoles’ development. Tonight at dinner the little one flummoxed the older one by explaining the functions of the cerebrum, the cerebellum, and the pre-frontal cortex.
I am thrilled that our local district’s test-focused superintendent (with her district-wide quarterly assessments to determine whether our kids were on track to succeed on the statewide annual assessments) recently resigned, and her interim replacement is a career educator who seems interested in putting exactly as much focus on standardized test scores as they’re worth. But not all children are in a district where progressive education seems to be making a resurgence.
Test prep — defined as taking concrete steps to get children into the heads of the test-makers — works. It really does, even on a test that’s allegedly of critical thinking, such as the bar exam (and, presumably, the PARCC). So as the stakes continue to grow, teachers will understandably be more and more tempted to engage in intensive test-prep (although bills to change this are in progress, under current New Jersey law, this year’s PARCC scores are worth 10% of teachers’ evaluations, but next year’s scores will be 20% of teachers’ evaluations, and the year after that PARCC scores will be 30% of teachers’ evaluations). Even where the teachers are not tempted, their principals or superintendents or even New Jersey Education Commissioner David Hespe may put unbearable pressure on them to raise scores — and coerce parents to allow their children to test — by any means necessary. For instance, just today (now, technically, yesterday) in an interview with the Newark Star Ledger, David Hespe threatened
“We are going to do whatever is necessary to make sure that we have a comfort level moving forward that we are going to hit that 95 percent,” Hespe said. “This is not a no harm, no foul situation here.”
Under Hespe’s vision, public schools will become publicly funded versions of BAR/BRI and PMBR courses, and a child-centered, holistic public education will become rarer and rarer. Parents will be threatened and coerced to let their children test or risk further state intervention and loss of funds for their local districts (which already experienced drastic cuts in state aid under the Christie administration). The privatization movement will rejoice, as public school parents with the means will opt-out completely by sending their children to private school. Fewer parents of privilege will be left to speak out, and public education will instead continue its march to the test-prep driven bottom as it serves a higher and higher percentage of students whose parents can’t offer them other options.
I’ve refused to allow my test-aged child to test, because I believe in public education. My children attend public school in Montclair, New Jersey because I know that all children do better when they attend high-quality, integrated public schools with children whose life experiences differ from their own. It’s that vision of diversity and equitable opportunity that I want for my children, and that I, for one, believe is critical to keeping the American dream alive. Yet state bureaucrat David Hespe threatens local districts — and tries to sow division — in integrated local districts like ours because so many of us Montclair parents from all walks of life have joined together to protest PARCC’s destructive effects.
As I watched our local schools narrow curriculum and move toward a test-prep focus for two years under the reins of our test-driven (now former) superintendent, I toyed with the idea of pulling my kids out of their integrated public schools and sending them to private school (knowing that doing this would have required us to sell our house in our beloved neighborhood), but doing so would be a defeat. Instead, I elected to fight for our public schools by writing, speaking, and ultimately refusing to allow my child to take the PARCC tests. I will continue to do so.
The scary thing is: test prep works. That’s why it’s so tempting to teachers, principals, and school district officials whose careers are on the line. And that’s why we parents are the last line of defense. David Hespe might want to, but no one can fire us. That’s why we parents must stand firm against pressure such as that exerted today by David Hespe. It is up to We The Parents to ensure that our nation’s public schools in all neighborhoods remain — or become — more than test-prep factories. Our kids deserve no less.
The last time David Hespe threatened us public school parents, it backfired on him. In fact, I, for one, give him (through his October 30, 2014 memo threatening sanctions for opting out) credit for single-handedly sparking New Jersey’s until then minuscule PARCC refusal movement. Now, instead of learning from his mistake, David Hespe has doubled-down on his punitive approach to public education. Today, Hespe announced his strategy of trying to ensure public school parent capitulation to PARCC by threatening to further interfere in our local school districts and perhaps even withhold state funding.
One would almost be tempted to think that Hespe has bought into (or been bought by) the immersive logic of the test-makers. Hespe’s reasoning skills might get him a passing score on a standardized test, but reasoning his reasoning will get him nowhere in the court of public opinion. We New Jerseyans are contrarian by nature. David Hespe, please take note: threats to inflict collective punishment on entire communities because New Jersey parents have refused the PARCC tests as an act of conscience and courage are far more likely to infuriate than subdue us. We New Jersey taxpayers — and our kids — deserve a state education policy maker with real world — and not test prep — reasoning skills. I don’t need to wait five months for his score: Hespe failed the test.
(Correction: Adding dropped word in introduction)
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