How to Pass the Bar by Steven DeCaprio

The following is a guest post by Steven DeCaprio, CEO and Founder of Land Action, who recently passed the California Bar Exam after completing the Law Office Study Program. The views and opinions are his and do no necessarily reflect the opinions of other contributors to this site.

I thought I would share some of my realizations as I studied for the bar. Since I failed the Baby Bar and the State Bar on my first try and only passed on my second attempt of each, I feel like I know what works and what doesn’t. The following are some of my realizations:

1. Practical Experience is Not Helpful (for Passing the Bar)

First of all, I think it is important to keep in mind that the number one priority is fulfilling the State Bar’s requirements to practice law. I am an expert in adverse possession and had nearly 10 years of practical experience in court representing myself in pro per. However, very little of that translated into useful knowledge when I studied for the bar. In fact since the bar tests on English Common Law rather that California Law, much of what I knew didn’t reflect the law as it was tested.

It actually seemed that what little experience I had that was helpful, such as civil procedure or drafting motions, were negated by things on the bar that are counter-intuitive to legal practice. For example, the IRAC format (1. Issue, 2. Rule, 3. Application, 4. Conclusion) for exam essays is contrary to standard legal writing which begins with only the conclusions that are beneficial to the position being advocated, followed by an analysis that serves a narrative.

With essays, the bar wants an analysis of all issues in which there are any relevant facts; not just the ones that end in the affirmative. An attorney would only include issues that conclude affirmatively if it is their motion, and conclusions in the negative would only be raised in opposition to a motion refuting the arguments. Many issues are not briefed because they are not strategic or both attorneys agree on the analysis thereby not putting the issue into contention.

Because of this, out-of-state attorneys often fail the essay portion because they skip minor issues or lead with a conclusion and/or have an analysis that only includes facts relevant to the most questionable elements of the rule, often omitting the obvious facts. If you omit a fact because it seems obvious, you lose points on the bar, whereas a judge would become annoyed if you included arguments regarding matters which are obvious since it would be a waste of the court’s time.

Based on my experience, I believe that obtaining practical knowledge while studying in the Law Office Study Program is actually counter-productive to the purpose of becoming certified. Remember if you are not certified you will not be able to use the practical skills you gained during your mentorship.

2. Don’t Skimp on Bar Review Courses

Prior to taking the Baby Bar, I read Casebooks on Torts, Criminal Law, and Contracts. After all, those are the subjects on the Baby Bar. I felt that my practical experience with legal writing coupled with my many hours studying the Casebooks would result in a passing score. The only review I did was utilizing the state bar materials.

In the end, I passed the multi-state but failed the essay portion of the exam. It was then that I had to re-assess my approach, but didn’t know where to turn. I had been aware of Fleming’s Baby Bar review course, but had decided it wasn’t worth the $625 price tag. After completing the Fleming’s course, I took the Baby Bar and passed.

You would think I learned my lesson. However when it came time to take the bar exam I decided to pull together disparate bar review materials. After all, I had passed the Baby Bar, and I learned the proper essay writing approach. Also, the price tag for Barbri – which costs thousands of dollars – dwarfed the cost of Fleming’s.

Again, I came close but did not pass the first time.

I then picked myself up, brushed myself off, and scraped together the money for Barbri. The bar graders do not give points for creativity (in fact, they subtract points). Accordingly, when it comes to bar review for unorthodox students such as those within the Law Office Study Program who tend to think outside the box, Barbri offers the most standardized bar review course that helps to turn you into a law applicant automaton for the requisite three day period. Bar graders are used to reading essays written the way Barbri teaches, allowing an otherwise unorthodox student to slip under the radar.

Because of my mistakes (not taking a bar prep course), I spent 4 additional years preparing for the bar than was necessary. My take away is that the primary focus of study should be that which supports the aforementioned bar review courses. Begin the Baby Bar and Bar review courses early and complete the entire courses. Do not skip any lectures and complete all the assignments. After all we didn’t go to law school, so the bar review courses are the closest thing we will get to that experience.

You can obtain practical experience later, after you have been certified to practice law. That’s what most lawyers do anyway. What we get through osmosis is more than any law student at an ABA school will get.

3. Don’t Spend Too Much Time Reading Casebooks

As I mentioned, before failing the Baby Bar I read casebooks from cover to cover. This was tremendously time consuming and brain numbing. Without a professor, it is hard to make sense of the cases or to know which ones were important for passing the bar.

I quickly turned to Gilbert’s Law Summaries to make sense of it all. Gilbert’s was helpful, but it wasn’t enough.

After passing the Baby Bar, I discovered Casenotes which were tremendously helpful in reviewing important cases and understanding their legal significance. What I realized is that various casebooks included different cases for study. I narrowed my study to focus primarily on the cases that were included in all the casebooks. To do this, I cross-referenced the tables of contents in the Casenotes to determine which cases were included in all the courses of study. This process allowed me to break the cases in the casebooks into three categories:

1. Ancillary cases

These are cases that are included in Casebooks that are not consistent in each course of study. They may be only found in one or two Casebooks, and are not representative of a significant or core legal concept. I ignored most of these cases.

2. Fundamental cases

The are cases that are found in most if not all casebooks. These cases represent a consensus among law schools regarding the cases necessary to understand fundamental principles of law. I read every one of these cases in the Casenotes, but only read a few from the Casebooks.

3. Essential cases

These are cases that are cited within bar review courses and in Gilbert’s. These are cases that are citable on the bar exam for extra points. I made sure to read all of these cases in the Casebooks. I also made flash cards out of them so that I would remember both the names of the cases as well as the rules they articulated.

4. Don’t Rely on Your Mentor (to Help you Prepare for the Bar)

Your mentor is not an expert on bar preparation, and your presence should be the least burdensome experience for them possible. A student can prepare and grade their own exams using bar review materials. A student can prepare their own semi-annual reports.

Thus the mentor should not be pressured to provided more guidance than spending five hours discussing the law, signing all the necessary paperwork, and any other support or guidance they spontaneously provide. Everything else can be done by the student themselves.

Further, it may be difficult to ensure the five hours of discussion with the mentor. Your mentor may be burdened with a heavy case load or not be in the right state of mind to prepare a study program. If it is difficult to achieve the five hours, I have found that having unstructured and informal discussions may be best. Perhaps being available so the attorney can vent about their caseload can be an effective means to engage in the “discussion”. Also, finding out what area of the law the mentor likes to discuss can be helpful so that the discussion can be exciting and enjoyable for both of you.

I would not expect this five hours to be particularly productive in preparation for the bar. However the five hours per week for four years is invaluable for getting an insight into the legal profession, even if those discussions are informal and unstructured; perhaps especially if it’s informal and unstructured.

For the rest of the study time I believe the student should be focused on bar preparation, and the mentor should be left to provide only minimal support. In fact, I would encourage folks to prepare their own exams using bar review materials. If your mentor is creating the exams, they may not conform with the skills necessary for passing the bar. In such a case, the exams may be counter-productive because they may test on practical law rather than the law on the exam, which isn’t the most efficient use of a students time and focus.

5. It’s All About Passing the Bar

I understand that many folks may be excited about a particular area of the law and may be working on legal projects. I am one of those people too. However preparing for the Baby Bar and the bar exam requires more study time than most of us have available; certainly more time than is mandated by the Law Office Study Program. The above strategies I outlined are the most streamlined possible and even if you follow my advice you will still find yourself racing against the clock as the exam date is looming.

Many lawyers will brag about how easy the bar was for them or how they didn’t know the law and just made stuff up. Either they are lying or they are especially gifted individuals. The California Bar Exam is the hardest bar exam in the United States. The majority of students study extremely hard and are nervous wrecks by the time the test is administered. Passage rates are low, and many intelligent individuals fail. The list of folks who failed the bar includes some amazing people.

Also, everyone around you will tell you that they are sure you will pass. Perhaps you passed every test you’ve ever taken with minimal effort. Perhaps you are the smartest person in your family or among your group of friends. It is good to feel confident, but that confidence will not help if you haven’t studied all areas of the law and completed a bar review course. Your friends and family only mean well when they try to instill confidence in you. They really don’t know if you will pass. All they are really meaning to say is that you are capable of passing, which is true as long as you are properly prepared by the time the exam is administered.

In Summary:

These are the steps as I see them:

1. Study the important cases on the subjects tested on the bar, as discussed above;
2. Study Gilbert’s Outlines on those subjects and use any and all techniques that work for you to memorize all the rules (mnemonics, checklists, flash cards, etc.);
3. Enroll in the Baby Bar and bar review courses, attend all lectures, and complete all assignments. Sign up well before the next exam is administered. Do not wait until you’ve completed your studies in the respective subjects before enrolling. Obtaining bar review materials beforehand to guide your studies early on is also helpful. (Yes, you will wind up with two sets of bar review materials);
4. Fulfill the minimum requirements of the Law Office Study Program;
5. Fulfill all other requirements early, such as the Moral Character Application and the MPRE.

It may be possible to pass the bar exam and the Baby Bar without following some of these suggestions, but is it worth the risk?

On the other hand, if it’s difficult to complete the course of study I described, then it’s still a good idea to get as close as possible before the exam. I struggled to complete the Barbri course, but passed anyway. I still think it’s better to take the exam and fail than it is to study for it and back out because you feel unprepared. The one way to guarantee that you won’t pass is to not take the exam in the first place. This may seem obvious, but you’ll be surprised that I’ve known law students who decided to skip taking the bar exam at the last minute because they felt unprepared.

Also, when I failed the Baby Bar and the bar exam on my first attempts I at least had my results provided to me by the bar. My results coupled with my experiences helped me better hone my next attempt. For example, I forced myself to attend the morning lectures held by Barbri in San Francisco so that I would become accustomed to waking up early in the morning in a test taking mindset. This was a particular problem for me because I have been working evenings for many years, and had trouble being clear headed for the first couple hours of the administration of the exam.

So I believe it is better to take the exam and fail than it is to skip an opportunity to take it. Of course if you do not skimp on your studies and complete the bar review courses you will very likely pass on the first attempt. I’m very confident that if I had followed this advice I would have saved myself years of time.

~

Steve DeCaprio is the CEO and Founder of Land Action. He is originally from the Florida Gulf Coast and came to Oakland, CA to be involved in music and political organizing. For over a decade he has been involved in housing struggles and advocacy in the Bay Area. He is known as an expert on occupying, improving, and repurposing abandoned property for the benefit of the community at large and for providing resources to environmental and social justice organizers. He was featured in the film “Shelter: a squatumentary“, has been featured in numerous publications, and was named one of 12 Visionaries of 2012 by the Utne Reader.