Why Do Students Fail?

Law school success is a good baseline for bar exam success. “It is common knowledge among law school and bar administrators that the single item that best predicts success on a bar exam is a person’s law school grade point average,” says Erica Moeser, president of the National Conference of Bar Examiners in Madison, Wisconsin. “We also know that students in the bottom 10 percent of a law school class should not be surprised that they may not pass the bar because the predictors have been there. The reality is that more work will be required for those students to hedge their bets.”

However, even students with a high GPA can stumble. “Some students do not study early enough,” contends Monique McLaughlin, assistant professor of academic success at Albany Law School in New York. “A lot of schools offer the bar exam course only in the spring. I think that is not enough, especially for the bottom 25 percent of students. They need to start preparing at the beginning of their third year.”

McLaughlin says some test-takers also have difficulty with legal analysis or focus only on multiple-choice prep without doing practice essays. “If I had to point to one reason people fail the bar, it is that they do not understand legal analysis,” she explains. “They knew the law backward and forward but failed because they did not know what to do with it. I worked with a man who failed the Texas bar a year ago. He asked me to help him pass the second time. We did 60 essay questions, and he improved his score by 75 points. I asked him why he thought he had improved, and he told me he had never done any essays during his first bar review class.”

That has also been the experience of Scott Pearce, proprietor of PasstheBar.com, a San Diego, California, bar tutoring service specializing in repeat takers. “The biggest mistake students make is spending too much time barking out memorized rules and not enough time on analysis,” he says. “We often find that when students fail, their highest essay score was on the subject they knew the least about. When they are forced to use their analysis skills, they do better than when they are focused on showing their memorization skills.”

Finally, some students are just plain cocky. “Overconfidence is a risk,” says Jaimee Nardiello, associate principal at Zetlin & De Chiara LLP in New York City, and coauthor with Alyssa Grodin of The Bar Exam Survival Guide: The Insider’s Handbook for Passing the Bar Exam. “We were studying next to a girl who was an editor of a very prestigious law review. She was overconfident and ended up failing.”

Creating a Plan to Pass

Smart preparation begins with a plan designed to avoid common mistakes that lead to a bar exam belly flop. “Preparing for the bar is like preparing for a marathon, not a sprint,” says Nardiello. “You cannot catch up at the end, so you need to develop a plan and stick to it.”

Start early with your school’s bar exam prep course. “A lot of schools now offer a bar prep course,” says Nardiello. “Taking it is a great idea if you have room in your schedule. That lets you start about six months before everybody else, and it should put you in the mindset of what to expect and how to begin studying. If you cannot take that course, start preparing right after you graduate.”

Map out a schedule and follow it. “Put yourself on a daily schedule,” adds Nardiello. “Create a routine that includes the time you will wake up, when you will study, and when you will go to bed. Also identify a study schedule to cover the topics on your state’s exam to make sure each is covered, and then stick to it.”

Be sure to also schedule relaxing, healthful activities. “Often when I have talked to students who have failed, I find they have worked too hard and studied too much,” says Pearce. “They say, ‘I am going to work harder this time!’ I tell them no, they are going to work out five days a week and go dancing two times a week, and those events will be marked in red on their calendar. The most important part of the exam is the exam itself. You cannot burn the candle at both ends and have nothing left for the exam.”

What if you work full time? “If there is any chance at all to not work, do it,” says Nardiello. “But that is not realistic for everyone. If you do have to work, schedule yourself to the minute—where you are even spending your lunch hour studying—and, if possible, delegate household activities to other people.”

Finally, do not compare yourself to your classmates. “I got lousy grades in law school but passed the bar exam in 2001 on my first try,” recalls Shane Fischer, a sole practitioner in Orlando, Florida. “I am convinced I passed because I got as far away from other test-takers as possible. I drove to another college a half hour away to study. Otherwise, you will not be able to stop yourself from asking classmates: ‘How is your studying going? How many of the practice questions are you answering correctly?’ You cannot compare yourself to other people. You just do not need that pressure.”

What If You Fail?

If your best efforts do not produce a passing score, remember that bar failure is merely a career setback.

“If you do not pass the bar, it is not fatal to your career,” says Kevyn Orr, Jones Day’s chair of firmwide recruiting in Washington, D.C. “Make no mistake, it is problematic. You are not an attorney, so it has implications in terms of your employer’s liability coverage. We cannot treat you as an associate when it comes to billing. And you will not progress with the rest of your hiring class because you are not an attorney yet. There is also the pain and shame. Get over the pain and shame. It happens. One simple incident is not an allegory or statement of someone’s self-esteem and worth.”

Pearce recommends acknowledging your disappointment. “My template approach is complete openness and candor, including facing just how bad you really feel,” he says. “I have given a number of my students permission to cry or break furniture to physically let out the feelings.”

Then figure out why you did not pass. “Many jurisdictions provide opportunities to meet with a member of the board of bar examiners to talk about what went wrong,” says Moeser. “That is not something to overlook.”

You also have to tell your employer. “The faster and the more candid you are, the better,” says Moeser. “It probably looks darkest for the person delivering the news, but the person receiving it is equipped to handle it. There are very few employers who have not lived through this, and most are understanding. However, an employer is not equipped to handle equivocation. It certainly is not going to help to have hidden the ball on your results.”

Orr still admires an associate who broke the news while he worked at a different firm in the mid-1990s. “The associate had spent the summer with us, was the daughter of a fairly significant client, and was beloved by everyone,” he says. “Much to her credit, she walked into each partner in the litigation department’s office and told each what had happened. I have never seen such a profile in courage. That made everybody more motivated to help and showed us she was our kind of person. She is now a partner at that firm.”

Be sure to present a plan when you break the news. “You have to shoulder it up and say, ‘Unfortunately, I did not pass,’” says Tim Swensen, assistant dean and director of the career services office at the University of Dayton School of Law in Ohio. “But you would do well to pair it with some informative statement that demonstrates that you know what it takes to pass and have taken steps to reach that outcome.”

Pearce says some students call him for a quick consultation before they inform their employer. “It is common for people to call me first because they want to know what to do,” he says. “They want advice on troubleshooting and figuring out why they failed, and often I can identify that pretty quickly. Then the person can go to the firm and say, ‘Here is what I have done about this, and here is what I propose to do.’”

Finally, keep your chin up, and recognize that you have joined the ranks of many accomplished people who did not pass the bar exam. They include former California Governor Pete Wilson, who passed the California bar on his fourth try; US Secretary of State Hillary Clinton, who passed the Arkansas bar but failed and never retook the Washington, D.C., bar; and the former dean of Stanford Law School, Kathleen Sullivan, who whiffed on the California bar in 2005 but passed the following February.

“I regularly tell graduates who come back with the news that they did not pass that virtually every lawyer I know understands how that can happen,” says Swensen. “Among the ranks of successful people are many who had to take the bar exam more than once. What the ranks of successful people are not littered with are people who threw up their hands and gave up. They rolled up their sleeves and did what they had to do.”

Sidebar: Bar Prep Goes High Tech

Many students take traditional bar prep courses, but that may not be enough. “It is a false hope to think that by just attending an exam prep course, you are going to be prepared,” says Dhenu Savla, an immigration attorney at SwagatUSA LLC in Chicago. “The most helpful studying occurs outside the classroom.”

Savla recommends investigating whether your state offers little-known supplemental bar prep programs like the Minority Legal Education Resources course she took. Savla has since tutored others in the MLER program.

If you are in the at-risk group of students in the bottom tier of your class, consider hiring a bar exam tutor, which generally start at $150 per hour. “People in the lower portion of their class are going to significantly, dramatically improve their pass rate by working with a tutor,” says Joseph Marino, professor of applied skills at New York Law School in New York City, and director of Marino Legal, which provides bar exam tutoring. “I do not know if they should do it during law school, but they should do it as a companion to bar review.”

Scott Pearce, proprietor of PasstheBar.com, a San Diego, California, bar tutoring service, says tutors are also helpful for students who anticipate needing help besting the essay portion of the exam. “If students come to me and present scores showing they passed the multistate comfortably but failed the essays, I can almost always get them to pass the essays the next time,” he says. “If they passed the essay questions by a comfortable margin but not the multiple choice, I tell them to purchase Kaplan’s PMBR, Micromash, Adaptibar, or another online program that tracks your errors and gives you more questions on those topics.” Another option is Themis Bar Review, launched in 2008 and designed exclusively for online learning.

There are also bar prep apps. BARBRI provides its customers free access to its Apple-based apps. Emanuel Bar Review offers apps with practice questions for six multistate subject areas. And BarMax is available only on Apple products.

For information about your state’s July 2012 bar exam, see the Bar Exam Directory in the November 2011 issue of Student Lawyer magazine.