More than two years ago, I wrote about taking the bar exam. See here and here. I took the bar exam three times and failed each time, the last time by 4 points out of around 250. I signed up for a fourth shot, and then, early in studying for the exam, I realized what I should have realized the first time.
Evidence: Looking at the essay answer examples provided by the bar examining committee, I finally saw that the exam was not about the correct answer. In any given legal situation, there are a number of different positions you can take. Some of these are reasonable positions, some are not. But often—frequently, in fact—within the set of reasonable positions there are diametrically-opposed positions. When I reviewed the example answers, I looked at the ones that had been given different scores.
Seven is the highest score, and then the scores drop point by point. What I noticed was (for example) that a score of 7 was based on position A; a score of 6 was based on position B; but a score of 5 was based on position A again. Four points for position B. And so on, though you got some unreasonable positions for the questions that scored 1 or 2.
Conclusion: It isn’t the answer that matters. It’s how strongly you make your case for the position you’ve chosen (so long as the position is reasonable).
During my first year of law school, I had a year-long class on contracts (everybody does) from an excellent professor (not everyone is so fortunate). One of the cases we read was Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (Okl. 1962). You can read about it here. The case outraged the class. I remember asking the professor something like “but couldn’t the outcome have been different if the plaintiffs had made out a more persuasive case?” His reply was simply “but they didn’t.”
So at that point I should have realized (as I have gradually) that law is not necessarily (and perhaps not ever) about getting the right answer.
So anyway. I signed up for the last minute for the next bar exam—which was in July—and studied only fitfully. I had no thought that I would pass, but I swore to myself that this would be the last time, either way. I relaxed, riding multiple century and metric century rides in the months before the exam, and I started to do volunteer work at a food pantry in part on a theory of the importance of self-esteem. I got to the exam knowing I was going to fail, and that I wouldn’t have to take any more. I was cool. Then it was over, and I was off to my son’s wedding and lots of other stuff happened and I really didn’t think much about the bar exam again until two weeks ago, when someone mentioned it. But I managed to drown it again.
But it was not with quite the minimum of trepidation I had hoped for that I opened the envelope yesterday. Inside was this:
What the hell? I guess now I know what I should have been doing all along.
In the final words of Robert Redford’s character in The Candidate, “Now what?”