Character and Fitness Concerns and Diploma Privilege Advocacy

July 13, 2020

There has been some chatter on Twitter recently regarding threats to members of the Class of 2020 who are advocating for diploma privilege. These threats insinuate that the advocates will have trouble getting through the character and fitness process if they are outspoken about the inequity of going forward with a bar exam this year.

This is a dangerous perversion of the character and fitness process. The character and fitness process is a client protection mechanism. The process exists to ensure that individuals who enter the legal profession put their clients’ needs first and know how to handle client funds. The process is not without flaws of course (see, i.e. problematic questions about mental health histories, and financial history questions that were clearly not drafted by someone who has ever struggled financially), but it is supposed to make sure that lawyers understand that their responsibility is to their clients first, and that the legal profession is, at its core, a service profession. That goal is laudible.

The character and fitness process is not supposed to quell the speech of attorneys or future attorneys. It is not supposed to be used as a shield to protect the legal profession from criticism. It is certainly not supposed to scare recent graduates into submission so that licensing authorities can callously ignore current conditions and continue the gate-keeping status quo, setting back all efforts to diversify the profession and failing to take seriously this unique moment in history.

Our most recent law graduates are dealing with unimaginable stress right now. Our country is dealing with an unprecedented global pandemic. People are getting sick, and their loved ones are getting sick. They are trying to study for a bar exam — a normally extremely stressful process — that is now literally requiring them to risk their lives and those of their loved ones. Even those states that will be administering an online exam are ignoring the inequities of doing so. Many law graduates live in close quarters, and do not have quiet places to study or reliable internet. Taking a two-day exam at home with no interruption is nearly impossible. If a child or a dog walks into the room, they will automatically fail the bar exam. Is that really how we want to determine who becomes an attorney? By who has the resources to have a quiet home for two full days? I know that I would surely fail under these conditions as one of my two children appear in nearly every meeting I have these days. I guess I should give up my law license because my 1 year old doesn’t understand that he should be quiet all day every day while I work from home. But I digress…

We need to be lifting up and fighting for our most recent law graduates (both members of the Class of 2020 and those who graduated before them and are still going through the bar examination and licensing processes). We must all stand up to threats – vague or direct – from members of character and fitness committees, licensing boards, and others, who would rather have those impacted the most remain silent so they don’t have to face the reality that holding bar exams right now is inequitable, dangerous, and wrong. We need to say no to attempts to silence bar studiers, and instead amplify their voices.

I am looking forward to the reckoning that will come when members of the Class of 2020 get admitted, take over licensing boards and character and fitness committees, and reimagine what equity and diversity in the legal profession really look like. I believe that change will come.

Studying Through The Uncertainty

July 13, 2020
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Studying for the bar is always a difficult task. It can be hard to focus when the weather is nice and there are protests in the street. This year, it is even harder to focus. There is so much uncertainty about daily life, and whether the bar exam will even be administered when your state says it will be. Try to find some certainty in daily tasks to help you keep pushing forward.

Make sure you have a daily schedule. It does not have to be the same every day, but keep in mind the main three things you need to be doing: 1) watching your lectures and taking notes, 2) annotating or creating the materials you will memorize from, and 3) practicing MBEs, essays, and MPTs.

Sometimes it can be hard to know what’s coming because of manner in which the bar review companies’ daily to do lists are generated. Don’t just blindly follow those lists with the goal of checking things off. You want to focus on what helps you internalize the rules best, and practicing the components of the bar exam (instead of just focusing on learning questions about the black letter law). Before you stop studying each day, make sure you know your plan for the next day so that you can wake up with certainty and a sense of purpose.

Celebrate and reward small accomplishments throughout the day. You watched the lectures without turning a 3 hour lecture into a 5 hour lecture experience? Awesome! Get yourself a piece of chocolate. You did 25 MBEs? Nice work! Throw yourself a 10 minute dance party break!

Try to create some certainty for yourself each day. Be kind to yourself and others. Breathe deeply.

Keep Reflecting

July 9, 2020

reflectiveDon’t get lost in the daily grind of just going through the motions to check things off of your bar company’s to do list. Make sure you take the time to reflect on each task after you have done it. It’s not enough to say “oh, I got that wrong, I don’t understand mortgages at all.”

You want to dive a bit deeper. Ask yourself why you got a question wrong. Was it because you didn’t know the doctrine? Ok, what are you going to do to make sure you learn the doctrine? Did you put that rule into your outline, or on a flashcard?

But chances are, you’re also getting questions wrong for test-taking reasons, not doctrinal reasons. Pay attention to those reasons too. Look for patterns, such as reading the question too quickly and missing something key, or reading too slowly and over-analyzing or adding something in that isn’t there.

Every day you should think of 2-3 takeaways – general lessons that you learned and will take forward to the rest of bar prep. Think globally, beyond each individual question. Use those takeaways to change how you approach future questions. Reflection is how we grow.

It’s Time

July 6, 2020
This photo depicts a clock and an hourglass with sand just beginning to fall.
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The September 9-10 bar exam is officially about 10 weeks away. That means it’s officially time to start full-time bar study if you have not started already. Bar study is difficult under the best of circumstances. Uncertainty and a pandemic have made this season’s bar study even harder. Despite this, YOU CAN DO IT.

Remember the three things that you want to focus on each day are 1) watching lecture, 2) annotating/making your study materials, and 3) doing practice.

You always want to keep an eye on the last 2-3 weeks when you will be focusing on rote memorization (in addition to practice, of course). Work with the materials now that you want to use then. That can be your bar company’s lecture handouts, their final review outlines, a supplemental company’s outlines or flashcards, or something you make. Don’t spend too much time each day reinventing the wheel and creating your own materials. You also don’t want to have too many sources, which will be overwhelming and confusing. Pick a source and stick with it. Add rules that you learn from MBE and essay practice.

You want to do some MBEs and/or essays every single day. You want to do them before you have memorized. You want to do them before you are comfortable with the timing. You want to do practice questions to learn how to succeed on the test, not to test yourself. Testing is the best way to learn.

Do an MPT every week.

Thank You Class of 2020!

July 6, 2020

Last Monday, I posted that the legal profession needed a do-over because bar examiners and Courts were going forward with in-person bar examinations this summer/fall that are – predictably – incredibly unsafe. But, the truth is, we don’t really need a do-over. We need to follow the lead of our most recent graduates.

The Class of 2020 has not only been studying hard for the bar exam, they have been organizing and advocating for each other and supporting one another in ways that demonstrate empathy and compassion. They have been collecting impact statements, partnering with Deans, attorneys, and elected officials, and drafting petitions. They have forced change across the country. Their work clearly demonstrates that they are ready to enter the legal profession.

While many bar examiners and Courts are pushing forward with the status quo – and in so doing are putting lives in danger – the Class of 2020, has given me renewed hope for the future of the legal profession. Let’s listen to them, and follow their lead.

Search for bar exam on Twitter to see some of their advocacy. If you are a lawyer or law professor, amplify their work, and know that the future of the legal profession is in good hands. While you’re at it, sign this petition to get diploma privilege in NY.

You Are Not Alone

July 2, 2020

Bar study is an isolating process. That is even truer this year when law schools and libraries around the country are closed, and studying with others brings with it a number of new difficult considerations. Even if you are studying by yourself, you are not alone.

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Technology makes it easier than ever to connect with others, and have it almost feel like you are together physically. Set up opportunities for parallel study. Take study breaks together. Have virtual lunch breaks, dinners or happy hours. Just because you are not sharing the same space as other bar studiers, doesn’t mean you can’t stay connected to them. It just takes a little bit more effort. (As a bonus, you can always log off if someone starts to annoy you or stress you out!)

Remember to connect with your loved ones who are not studying for the bar exam as well. It can sometimes be helpful to remember that life exists outside of the bar too.

You can always reach out to the academic support or bar support folks at your law school as well. They are always happy to give you a pep talk or just listen to you vent. You can also still access mental health services through your law school.

Remember that you are not alone. Be kind to yourself and others.

Will Bar Exams Be the Next COVID-19 Hotspots?

June 29, 2020
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If you are worried about the spread of COVID-19 at the bar exam, you have good reason. Many examinations are going forward in person in July, and others in September. The NCBE keeps an updated list of state decisions regarding exam dates on their website. A few states have already released assumption of the risk liability waivers that all bar applicants will be required to sign. These waivers require test takers to acknowledge that taking the bar exam in-person poses a significant risk to their health due to the COVID-19 pandemic and assume the risk of getting the virus. If bar exams pose a major risk of exposure to COVID-19, then why would bar examiners and state courts require applicants to choose between their health and their career?

Applicants who sit for the bar exam this year will be at risk of contracting COVID-19. The danger of transmission rises the more people are crowded together in an indoor space and for a long duration—even if they are six feet apart. The main routes of COVID-19 transmission are droplets from persons who are infected and aerosolized spread where viral particles are in the air. Further, separating individuals by six feet may not be sufficient because hundreds of individuals will be in an enclosed space for prolonged periods of time.

Even temperature checks, to the extent they will be used, cannot effectively eliminate the spread of COVID-19. The  risk of transmission by individuals who are infected but asymptomatic or pre-symptomatic remains quite high—as high as 20% or more. Thus, although temperature checks may identify individuals who are actively symptomatic, they do not effectively eliminate the risk of transmission.

Nor will face masks eliminate the risk of transmission. The bar exam in most states is a two-day event, consisting of two three-hour testing sessions on each day. That’s two full days of potential exposure. In large jurisdictions, applicants can expect to spend an hour or more on the security line (this will likely be longer in jurisdictions that take everyone’s temperature). Applicants are seated for administrative protocols for up to an hour before the exam begins and then surrounded by one another again during the lunch break. Even if jurisdictions require applicants to wear face masks—an arduous proposition for 12 grueling exam hours and all of the down time before during and after—the risk of transmission remains significant.

Bar takers are not the only individuals in the room, of course. Materials are passed out by proctors, who sit close to applicants to ensure that they are following all rules. Indeed, because proctors in Mississippi were unwilling to expose themselves to the risk of transmission, the state has taken the unprecedented step of offering pro bono credit to young lawyers who might forego the risk and agree to proctor. Bar examiners and technical support individuals also move around the room to offer support. The technical support people often touch candidates’ computers as they troubleshoot technical difficulties.

Some states are requiring test-takers to quarantine for two weeks prior to the exam and are encouraging test-takers to quarantine for two weeks after the exam. That is a wise precaution, but it is unclear how this guidance could be enforced. Bar applicants are, of course, members of communities, and are not completely isolated. They live with others, go to grocery stores where others shop, and will return to their communities after each day of the exam. Further, many bar applicants in states across the country will have to travel to other parts of their state, or across state lines, in order to sit for the exam. This travel may require public transportation, and staying in hotels or other public accommodations. Most bar examinations are given in metropolitan areas, where getting to the exam site will also require travel by public transport.

Going forward with the bar exam will also exacerbate inequities in an already inequitable profession. The legal profession is one of the least diverse in the country. Black communities and other communities of color have been hit hardest by COVID-19. Thus, Black bar applicants are more likely to have contracted COVID-19, to have lost loved ones to COVID-19, and to be vulnerable to acquiring the virus. Bar exam failure already disproportionately impacts communities of color and women. Going forward with in-person bar exams will only widen existing disparities.

Having an in-person bar exam before there is an effective COVID-19 vaccine and/or treatment creates a health risk for everyone involved in the bar exam, as well as individuals in their communities, including the vulnerable. We shouldn’t make bar applicants choose between their careers and their safety in the midst of a global pandemic. There are smarter, more effective, and safer ways to determine who is competent to practice law.

In-person bar exams should be called off, and diploma privilege with reciprocity should be adopted nationwide. The NCBE’s only argument against diploma privilege is mistrust of — and disdain for — law schools. While legal education is by no means perfect, it has made great strides in recent years towards better pedagogy, learning-focused outcomes, and the teaching of practical lawyering skills. The bar exam has not made similar changes. Where is the evidence that the bar exam is a valid predictor of competence (or success) as an attorney?

There are bar applicants all over the country who are organizing and advocating for their lives. We need to hear them, and take them seriously. Without them, we are left with a legal profession that is willing to sacrifice its young, ignoring grave dangers and inequities. Our whole profession needs a do-over right now.

Picture the Last Few Weeks

June 25, 2020
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September may feel like a long way away, but everything you are doing now is in service of the goal of passing the bar in September. In the last few weeks before the exam, when you are done with new lectures, you will be focusing on memorization and practice questions. You want to make sure now that when you get to that point, you know what materials you will be memorizing from. You want to use those materials throughout bar study.

You have options. You can make your own outlines or flashcards. You can use the lecture handouts or review outlines provided by your bar review company. You can purchase outlines or flashcards from a supplemental review company. Whatever you choose to do, it’s best to have one source (too many sources can be too confusing and time consuming), and to be internalizing the language from that source during all of bar study.

The key is to be active. If you are not making your own materials, you still need to make the materials your own in some way. That means writing on them, drawing on them, writing things out on separate sheets of paper, making charts, testing yourself, etc. Although you will do the rote memorization at the end, you want to be active with your learning all the way through bar study, so that you internalize the rules and put them in your long-term memory. So don’t just watch the lectures. After the lecture (or the next day) make sure you actively engage with the material again. Then actively engage with that material through practice.

Figure out what you want to use for memorization now. That doesn’t mean that you absolutely can’t change at a later date, or use something different for one subject. But, it does mean actively engaging in learning the material as you go through bar study, instead of just saying you’ll make materials and figure it out at the end. You simply won’t have time for that.

Take It In Pieces

June 22, 2020
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It’s easy to become overwhelmed by the amount of the material on the bar exam. There is a lot to recall, and a lot to practice. Just take it step by step, one piece at a time.

Whether you are taking the bar in July, September, or October, you still have a ways to go. Instead of thinking that you need to learn all of Constitutional Law, learn equal protection, due process, dormant commerce clause, etc. Break each subject up into topics, and take it one topic at a time.

That doesn’t mean that you have to master each topic before moving on to the next, you don’t. It just means that breaking the information into smaller pieces will be more manageable to learn, and will help you better assess your progress.

Keep pushing forward. Do practice questions every day. You’ve got this!

If you’re traveling, go soon

June 18, 2020
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It’s a familiar sight each summer – bar applicants heading across state lines or to other parts of their state a day or two before the bar exam. This year, this will be different too. If you are heading across state lines, either in July or September, you will likely need to quarantine for 14 days prior to the exam. That means that you need to be in the location of the exam more than two weeks prior to the test.

Honestly, you probably want to go even earlier, just in case you do get sick. Make sure you know where local health facilities are, in relation to where you are staying. Preparedness is key. If you bring an umbrella, it won’t rain, right?

Even if you are just traveling to a different city within your state, make sure you check out a government website to see if the city is imposing any travel restrictions. These rules are likely to change in the coming months, so check regularly.