By: Prof. Quentin Huff, Assistant Director of Bar Success at Wake Forest University School of Law
Everybody knows the bar exam is difficult. Indeed, it’s the very magnitude of the difficulty that causes us to lose sight of what’s important on the exam. In my view, when examinees misinterpret the rule of thumb that the bar exam is testing “minimum competency”, they risk losing sight of the many skills they acquired and developed through law school.
The bar exam tests what you can do in addition to what you know. So, before we get to that, let’s first breakdown the basics. I divide bar exams into two types: (1) the Uniform Bar Exam (UBE) and (2) state-specific examinations.
The Uniform Bar Exam
The National Conference of Bar Examiners creates the UBE, which consists of three primary components: (1) the Multistate Bar Exam (MBE) (200 multiple choice questions); (2) the Multistate Essay Exam (MEE) (six essay questions); and (3) the Multistate Performance Test (MPT) (two closed-universe problems). Completion of all three components results in a test score out of 400 possible points.
The jurisdiction where you sit for the bar will determine the required passing score, sometimes referred to as the “cut score”. Passing scores range from 260 to 280. Alabama’s passing score of 260 is an example of the lowest. Alaska’s passing score of 280 is the highest. North Carolina falls in between, requiring a minimum passing score of 270 points.
MBE: Over a total of six hours, the MBE’s 200 multiple choice questions cover various areas of law, including Civil Procedure, Constitutional Law, Contracts (including Article 2 of the Uniform Commercial Code), Criminal Law and Procedure, Evidence, Real Property, and Torts. The subjects are tested based on “majority” rules, such as the Federal Rules of Civil Procedure, the Federal Rules of Evidence, comparative fault instead of contributory negligence, and common law principles of criminal law instead of the Model Penal Code. The MBE is graded by the National Conference of Bar Examiners.
MEE: The essays for the MEE’s six questions may cover any of the subject areas tested on the MBE as well as other topics like Business Associations (including Agency, Partnership, and Corporations, LLCs), Conflict of Laws, Family Law, Secured Transactions, Wills, and Trusts. The jurisdiction administering the exam will grade these essays.
MPT: For the MPT, the test makers provide the statutes, rules, and precedent necessary for examinees to complete a specific task. The examinee may need to use the materials to respond to a client letter or a directive from a senior partner, resulting in the synthesis of the given statutory material and case law into a particular type of written work product, such as a memo, contractual agreement, proposal, or other document. For many examinees, the MPT will resemble an assignment from a law school legal writing course. Once again, the MPT is graded by the individual jurisdiction where the examinee sits for the exam.
State-specific exams, on the other hand, tend to incorporate one or more of the above components, either created by the state bar or by the National Conference of Bar Examiners. Some states administer short answer questions. Others administer 12 or more essays. State-specific exams usually require knowledge of state law, so examinees in these jurisdictions must be able to pivot between the “majority rules” of the MBE to the state-specific distinctions raised by the essay questions.
With this foundation, let’s now discuss “minimum competency”.
What Does “Minimum Competency” mean?
During bar exam season, lawyers, professors, and academic support specialists reassure test takers that the exam can be conquered. One approach focuses on the bar exam being the “last hurdle” or the “final obstacle”. We might say, “Think about how great you’ll feel when this is over and you’ve received your law license.” This is so true! It is a wonderful feeling to have the bar exam behind you. It’s also great to pass the exam.
There’s another approach that reassures test takers based on the relative amount of knowledge needed to pass the exam or a specific ratio of correct answers. This is most commonly expressed as: “The bar exam is a test of minimum competency. You only have to know enough to pass.”
Instead of defining “competency” as a minimum amount of knowledge, let’s approach it in a skills-oriented fashion. Fortunately, bar examinees are already familiar with the skills tested by bar examinations, thanks to law school and years of daily living. Your goal is to resolve the dilemmas presented in essays, multiple-choice questions, and performance modules by using, at a minimum, the skills below:
Skills For Absorbing Information & Surviving Law School
- Time management
- Emotional intelligence
- Reading critically
- Comparing & contrasting legal concepts
- Applying legal rules to key facts
- Spotting important issues
- Evaluating competing arguments
Remember, the idea is that you’re familiar with these skills, not that you’ve mastered them. During bar preparation, you can use your familiarity with these skills to better assess your progress and to help you identify weaknesses.
For instance, when you are perplexed by bar exam multiple choice questions, the natural instinct is to take note of the rule being tested or to memorize the applicable legal concept. This is a crucial component to your study strategy. Sometimes, however, the difficulty relates to reading comprehension, articulating the issue, or applying the rules to the facts in a specific way. In these instances, it’s possible to know the specific rule but nevertheless choose an incorrect answer.
The reason I refer to it as the “incorrect” answer – rather than the “wrong” answer – is that bar exam questions do not always test the exact formulations of the rules we’ve memorized. Thinking of “minimum competency” as demonstrating a minimum set of skills will alert us to a useful strategy. That is, we should seek the “correct” answer in an essay or multiple choice question rather than seeking the “right” answer.
The “right” answer is related to a specific truth, perhaps searching for an answer that is either complete, free from imperfections, and uncomplicated by moral ambiguity. In seeking the “correct” answer, we are pursuing the one that acts in accord with a set of established principles. This might mean finding the answer that functions most coherently within the fictional world of the test question. Often, the “correct” answer operates in accord with the principles of a particular body of law. The “correct” answer might be incomplete, might use language that is slightly askew, or might even be phrased in a casual and unorthodox manner. The “correct” answer could even be considered “bad” or ineffective, but it will be less “bad” or ineffective than the other three answers.
Demonstrate Your Skills Competency
Let’s apply the skills we’ve listed to an actual MBE question released on the National Conference of Bar Examiners website:
A man has four German shepherd dogs that he has trained for guard duty and that he holds for breeding purposes. The man has “Beware of Dogs” signs clearly posted around a fenced-in yard where he keeps the dogs. The man’s next-door neighbor frequently walks past the man’s house and knows about the dogs’ ferocity. One summer day, the neighbor entered the man’s fenced-in yard to retrieve a snow shovel that the man had borrowed during the past winter. The neighbor was attacked by one of the dogs and was severely injured. In a suit against the man, is the neighbor likely to prevail?
(A) No, because the neighbor knew that the man had dangerous dogs in the yard.
(B) No, because the neighbor was trespassing when he entered the man’s property.
(C) Yes, because the neighbor was an invitee for the purpose of retrieving the shovel.
(D) Yes, because the man was engaged in an abnormally dangerous activity.
Time Management: This skill is embedded in each section of the bar exam. For the MBE, you are allowed three hours to complete each set of 100 questions, which works out to approximately 1.8 minutes per question. Time management also takes the form of working through enough questions to know the point where you become fatigued. You build your mental stamina and develop coping mechanisms, which could also be viewed as “emotional intelligence”.
This specific question raises time management issues in another way, as I suspect many test takers would have eliminated two of the answers, leaving a nagging choice between the remaining two. You can’t linger too long as you toggle between them! Eventually, you have to trust your instincts, pick an answer, and move on.
Emotional Intelligence: In general, this skill involves working through nervousness and anxiety, as well as striking a balance between bar prep and the rigors of daily life. In our example above, it might be necessary to manage our emotional responses to the actions in the hypotheticals. This question features a severe injury from a dog. Others present us with arsons, poisons, broken promises, characters who are unjustly enriched, and evidence that’s inadmissible even though it might put a guilty person behind bars. Scenarios like these invite us to seek ways of compensating victims or balancing situations we find unjust, sometimes without a legal basis. More than that, the neighbor in the MBE problem has initiated a lawsuit. It’s natural for us to look for ways to make the lawsuit work rather than to poke holes in it.
Memorization & Contrasting Legal Concepts: Which legal concepts come to mind as you read this problem? You might think of negligence, assumption of the risk, strict liability, abnormally dangerous activities. You’d want to memorize the definitions and rules associated with those concepts. Once you’ve done that, you should be able to contrast them. Option A, referencing the neighbor’s knowledge of the dogs, might be relevant to a negligence action. Options B and C are relevant to a landowner liability claim. For option D, you have to decide if raising dogs fits the profile of an “abnormally dangerous activity”.
Applying Rules to Key Facts & Reading Critically: Here, the rules are important, but identifying “key facts” can truly bring the analysis into focus. After all, you can’t “apply rules to facts” if you don’t have facts. This is the starting point for spotting core issues as well. In the problem above, the facts are quite suggestive, as illustrated by this table:
|1. The dog owner took precautions regarding the dogs.||“Beware of dogs” signs (more than one) are clearly posted.
These signs are posted around the yard.
The yard is “fenced-in”
|2. The neighbor was aware of the danger||The neighbor lives next door.
The neighbor frequently walks past the man’s house.
The neighbor knows about the ferocity of the dogs.
|3. The neighbor acted unreasonably in the face of the danger.||There are four dogs.
The dogs are guard dogs.
The neighbor chose to retrieve the snow shovel himself rather than to ask the man to return it.
The man borrowed the snow shovel in the winter, but the neighbor isn’t retrieving it until summer.
Since the dog owner seems positioned as the party who acted reasonably and took the most precautions, I suspect German shepherds are popular breeds for training and for being guard dogs. Regardless, identifying the significance of the facts can help you to decide how to best apply the legal concepts you’ve learned. By working through the facts in this way, you can better understand the world of the question, and you can better situate the answer choices within that world.
Spotting Core Issues: It is tempting to frame the issue in our question as “whether the neighbor will prevail in a lawsuit against the man.” We’ve become accustomed to equating the question being asked with the “issue”. However, the better practice is to articulate the issue by combining a rule or legal concept with the determinative facts.
For our problem, the issue might be “whether the neighbor will prevail in a negligence suit against the dog owner when the neighbor knew the dogs might bite him if he entered the fence.” Another formulation might be: “The issue is whether the neighbor can win a negligence suit against a dog owner who posts signs about his dogs, keeps his dogs fenced-in, and the neighbor already knows he can be hurt by the dogs.”
You will notice, of course, that the question did not tell us the theory of liability for the neighbor’s lawsuit. True, we don’t know if it’s a negligence suit, but three of the answer options (A, B, and C) suggest negligence, option D (abnormally dangerous activity) is inconsistent with the facts, and we know from the NCBE’s MBE Subject Matter Outline that negligence makes up 50% of the Torts questions. We have a good shot if we suspect negligence as the legal theory.
Evaluating Competing Arguments: The answer given for this question is option A. Many people prefer option B. Why would option A (“the neighbor knew the man had dangerous dogs”) be correct while option B (“the neighbor was trespassing”) is incorrect?
One interesting thing about option A is that it doesn’t quite sound like a correct answer. There’s nothing especially legalistic about it, whereas the other options at least attempt to introduce the legal concepts of “trespassing”, “invitee”, and “abnormally dangerous activity”. The MBE’s correct answers are sometimes written this way, and that’s when you have to activate the skills that accompany your knowledge of the law.
Personally, I respect both options as good choices, so you have to practice evaluating which one works best within the world constructed by the question. From that perspective, option A does a better job of accounting for more of the facts in our chart above than option B does. Also, option B offers the neighbor’s status as a trespasser as the rationale for the absolving the dog owner’s liability, which totally ignores any duty of care owed to a trespasser and the dog owner’s numerous precautions regarding the dogs.
The Bottom Line
When you hear that the bar exam requires “minimum competency”, this should give you hope and confidence. To be successful, you will need to demonstrate your familiarity with skills that you have been honing for years. If you are weak in a particular skill, you have an opportunity to diagnose the specific weakness and create a remedy. Concentrate on your strengths, use them in conjunction with your knowledge of the law, and take all of your skills to the bar exam table with confidence!
The TeachLawBetter Team wishes all of those taking the bar exam the very best of luck!