“Those who have knowledge, don’t predict. Those who predict, don’t have knowledge.” Lao Tzu, Ancient Chinese Philosopher and Poet
In a recent one minute Google search, I found three commercial bar preparation services that made predictions about the topics most likely to appear on the next exam. Prediction is a wonderful subject of public interest. My favorite predictors are Terry and Linda Jamison, aka “the Psychic Twins” or, as they are sometimes described, “Nostradamus in Stilettos.”
Nonetheless, when I read Bar Exam predictions, I always have to laugh. That’s largely because when I was the State Bar Exam Director I couldn’t have predicted what would be on the next exam.
Consider how question selection has been conducted over the years by the State Bar Office of Admissions. Performance Test questions are written and edited from scratch by the “Performance Test Drafting Team,” a small assortment of clinical law professors and long-time bar graders. Without any direction from the Committee of Bar Examiners or its staff, the Team members take turns preparing and editing, with great care, original questions which they regard less as implements of torture than as interesting puzzles. (Go figure.)
Essay questions are purchased from out-of-state law professors who are paid small fees for the questions they submit, and additional (small) fees if their questions are used. There is a kind of master plan – a goal of creating variety in the subjects tested over a period of time. However, as often as not, when I was Exam Director this master plan was thwarted because many questions submitted were simply ones that the professors had used in their “Bar” classes, regardless of the topics requested. Moreover, as often as not, even potentially useful questions were of very poor quality, headed for heavy editing, or the First-Year Law Students’ Exam (the “Baby Bar”) or the trash can. Questions that survived the gauntlet of constant review and editing, I placed in “banks” by subject matter for future use. Some banks were full, others not so much. The February 2010 Bar Exam actually had two Contracts question (one combined with Remedies) on the same exam. Of 14 subjects within the Scope of the Bar Exam, why would two on the same subject be used? Was it for the sake of pedagogy or public protection or, as I’m happy to speculate, could it have been that the banks in the remaining subjects had become so depleted of quality questions that this was the only way to populate the exam with six essay questions?
The last word on what appears on the Exam, of course, lies with the Committee of Bar Examiners. In advance of each Exam, the Committee conducts “Question Selection.” To be sure, Committee staff makes recommendations. However, against the possibility of Committee objections to a question or questions, alternates are also provided. Up until that time shortly before the Exam, not even the Psychic Twins could predict what would be tested.
So, in my opinion at any rate, if even the pundits can’t do it, and I couldn’t do it, you probably can’t do it either, and, frankly, it’s a waste of time even to try.
But don’t worry. There are a great many strategies, especially piled on good analytical fundamentals and a good knowledge of the law, that will help you to score. Count on seeing them as this Blog rolls along.
