From whom would you learn the most valuable lessons: from the bar flunker or from the bar topnotcher?
This is the continuing confession of a 2011 bar flunker, and towards the end, I will reveal how, why, and how I knew in advance I flunked the 2011 bar given that Supreme Court has not yet officially released the bar results. That’s for your to wait and for the Supreme Court to investigate.
I’m sure you are not interested in my personal travails so I’m going to discuss first my impressions of the bar exams, how it was implemented, and how it could be improved. It will be only in the latter part of these confessions will I share my personal experiences, and by then, you can choose not to read that personal aspect.
Bifurcated bar format
Is the new bar format easier or harder? There are many perspectives that could be presented in order to answer this question. The obvious angle is how this new format compares to the traditional bar in its capacity to test the knowledge of the examinee, and probably the angle that has been discussed in detail by the Supreme Court in announcing the radical changes.
I will also share my ideas from that perspective, however, for the moment, let us look at the new bar format in terms of its subject weights because nobody has done this before. And you know that’s what I’m good at – analyzing things that nobody cares about; the constant contemplation of the immaterial, the irrelevant, the insignificant, and the obscure.
Allow me to share my analysis using quantitative metrics including my insights into the impact of such quantification.
I created my own bar grade calculator or spreadsheet to analyze the sensitivity of the final bar grade to changes in the raw scores in the MCQ (multiple-choice questions) and raw scores in the written tests. This spreadsheet will be good tool for your exam strategy. All review centers, law schools, and bar ops should have this. Email me to obtain your copy.
Invention
“If it doesn’t exist, I invent it.” This is not only a shallow mantra, I actually executed this philosophy when I took the bar, and the legal concept I invented probably caused me a huge deduction on my essay test on the last bar Sunday. I will tell you about it in later installment of these confessions.
Anyway, here goes an invention. I hereby invent the term “WritLA” (written legal analysis) to refer to the two performance tests done on the last Sunday of the bar, the Memorandum Writing and the Legal Opinion.
I also hereby adapt the phrase “legal milieu” instead of “question” because those bar questions require analysis, not mere memorization. Plural: milieux. The likes of “Who is the President of the Philippines?” or “What is the capital of Canada?” are questions. But the bar exams aren’t these simple.
The bar questions are in the nature of legal milieux that require time, knowledge, and analysis. Each problem is like a Supreme Court case being reduced to five sentences. But I will use the term “question” once in a while so as not to abruptly alienate you.
Subject weights
As you may know by now, the Supreme Court divided the bar exams into two sections, MCQ with 60% weight, and WritLA with 40% weight of the final bar grade.
The MCQ comprises eight subjects with different weights administered in the first three Sundays.
The WritLA comprises two tests, namely, Memorandum Writing (60%) and Legal Opinion (40%) administered for three hours each on the last bar Sunday.
To pass the bar, you must have a grade of 75.0. For the 2011 bar, the Supreme Court suspended the disqualification (DQ) condition: No grade below 50 in any of the subjects. (Now, I am not dead certain as to this suspension because I never attended a review center where they tell you these developments, but a friend of mine did mention this.)
To the uninitiated, here are the respective subjects, number of items in the 2011 bar, hours allocated during the exams, and subject weights:
First Sunday: Political Law (100 items, 2 hours, 15% weight); Labor Law (75, 1.5 hours, 10%); Taxation Law (75, 1.5 hours, 10%).
Second Sunday: Civil Law (100, 2 hours, 15%); Mercantile Law (100, 2.5 hours as extended, 15%).
Third Sunday: Remedial Law (100, 2.5 hours as extended, 20%); Legal Ethics (50, 1.5 hours, 5%); Criminal Law (100, 2 hours, 10%).
Fourth Sunday: Memorandum Writing (100 points, 4 hours, 60%); Legal Opinion (100 points, 3 hours, 40%).
Thus, overall, the MCQ’s have a total of 700 legal milieux of 15.5 hours of enfeebling, enervating, exhausting individual legal analysis while the WritLA have a total of only 2 legal milieux for a total of 6 hours of finger-cramping, wrist-twisting hand-writing.
But those are six hours of “communicating in English, sorting out the conflicting claims and extracting those facts that are relevant to the issue or issues in the case, identifying the issue or issues presented, and constructing your arguments and persuading your reader to your point of view.”
Of course, I don’t expect you to memorize this list but this could be a handy reference, especially for future examinees.
Myth or Reality?
I would like to dispel the myth that the new bar format is easier because of the adaption of the MCQs and that the written aspect of the bar has been reduced to insignificance.
That the new format is easier, is not only false but also dangerously misleading. Why? Without any quantitative analysis on the impact of the weights, the examinee might synthesize an erroneous bar preparation strategy due to erroneous appreciation of the significance and insignificance of certain subjects.
Given the new format, the WritLA exercises are deceptively touted as no-right no-wrong tests, consequently disarming the bar examinees into complacency, yet in reality, they are extremely over weighted in the determination of the final bar grade.
I’m not saying it’s bad. I’m saying it is dangerously deceptive.
Here’s why: There were 700 legal milieux (questions) given in first three Sundays of the bar comprising 60% of the bar grade.
There were only 2 legal milieux in the WritLA comprising 40% of the bar grade. The WritLA is further broken down as 60% for the Memorandum Writing and 40% for the Legal Opinion.
Therefore, in the MCQ each legal milieu (question) is worth only 60%/700 = 0.086% or 0.086 points, assuming equal bar subject weights. What does this mean? For every mistake you make in the MCQ, your bar grade will be reduced by 0.086 points, on the average.
If you really want to be exact about it, each legal milieu (question) in Remedial Law is worth 0.120 points of your final bar grade; Political Law, Civil Law, and Mercantile Law is worth 0.090 points each; Labor Law and Taxation Law is worth 0.080 points each; Ethics and Criminal Law is worth 0.060 points each.
Each raw score point in Memorandum is worth 0.24 points each; Legal Opinion is worth 0.16 points of your final bar grade.
To give you a sense of magnitude and proportion, suppose you spent three minutes analyzing one legal milieu in Remedial Law, and you answered it correctly, then that three-minute effort is worth only 0.12 points of your final bar grade. This is so much analysis work for a mere 0.12 of a point. Is this value for effort?
Assuming you correctly analyzed that entrapment vs. instigation milieu in Criminal Law, then that two-minute effort is worth only 0.06 points of your final grade. Is it worth the effort?
On the optimistic side, if you failed to analyze that problem on assessment protest in Taxation, then you lost only 0.08 of your final bar grade, and this means you can afford to lose that question.
Suppose the bar examiner decides that nobody ought to get a perfect score in Legal Opinion, just out of whim and caprice. So, instead of 100 points, without solid basis, he gives only 99 to an examinee with a perfect answer. As I will explain later, a one-point deduction in the WritLA, all because the examiner thinks, without any justifiable excuse, that nobody ought to get perfect in Memorandum Writing, is equivalent to making 4 mistakes in Criminal Law! Your 12 minutes of hacking 4 problems in Criminal Law is annihilated by a single point deduction in Memorandum Writing, just like that.
Let’s contrast the MCQ weights to the WritLA. The one and only one legal milieu of the Legal Memorandum portion of the WritLA is worth 24.0 points (being 60% of the 40% of the bar grade) while the one and only one legal milieu of the Legal Opinion component is worth 16.0 points (being 40% of the 40% of the bar grade).
Let us grasp the impact of these figures.
Assume you obtained the following: A perfect score in Political Law (that’s a total of 100 correct answers to 100 questions altogether worth 9 points of the final bar grade); a perfect score in Criminal Law (100 questions worth 6 points); a perfect score in Taxation Law (75 questions worth 6 points); and a perfect score in Ethics (that’s 50 questions worth a meager 3 points!).
This means you analyzed all the 325 legal milieux for the above subjects correctly. By the way, if you did, wow, you are the Isaac Newton of the legal world, meaning a genius in each subject. Yet such Newtonian feat for this entire set of four subjects will only entitle you to a total of 24 points of your final bar grade.
Now, let us analyze the Legal Memorandum. If you correctly analyzed the sole legal milieu of the Memorandum, you would be entitled to 24 points. Remember, this is just for the only legal milieu in Memorandum.
This means you will have to correctly and perfectly analyze 325 legal milieux (questions) in the MCQ while you only need one correct analysis in the Memorandum. That’s an effort ratio of 1:325.
Let us visualize this situation in another way. Say, there is a contest between you and me to become the bar topnotcher.
You have correctly analyzed all the 325 milieux above.
But you missed in your analysis of the only legal milieu in the Legal Memorandum; let’s assume you got zero points. You will get only a total of 24 points in our topnotcher race, 24 from MCQ and zero from Memorandum.
On the other hand, because my analysis hit the mark, I would get 24 points in Legal Memorandum, and further assuming I got zero in both Political Law and Criminal Law, my total points will be also 24. Our scores are just equal.
But think of the implications. Listen to me carefully. How easily could you actually miss the correct analysis of the Memorandum’s only legal milieu? Easily, very easily. Very easily, anybody could miss the analysis because that’s just one legal milieu: if you miss the bull’s-eye, you miss the bull’s-eye; plain and simple.
In contrast, do you really think I would get zero in all the four subjects of Political, Taxation, Criminal Law, and Ethics, all of the 325 questions?
Assuming I was reasonably prepared, I may make 30 mistakes out 100 questions in Political, 20 out of 100 in Criminal, 15 out of 75 in Taxation, and 10 out of 50 in Ethics. That’s a large number of mistakes. Yet, for these four, I would still obtain a subtotal of 17.7 points of my final bar grade.
My total for 4 subjects and Memorandum would be 41.7 points versus your 24. I have about twice your points on this set.
Assuming we both scored perfect in the remaining subjects including the Legal Opinion, my bar grade would be 94.3.
Do you think you will top the bar with those perfect scores in all subjects except the Memorandum Writing? No. Your bar grade will only be 76.00.
I will be the bar topnotcher and you will have only barely passed. Applause, applause. This quantification demonstrates the highly leveraged effect of the Memorandum Writing, and by extension, also the Legal Opinion.
However, I would like to point out a simplification I made earlier regarding the scoring of the Memorandum.
Earlier, I gave you a score of zero for failing to correctly analyze the Memorandum’s only legal milieu. This scoring is incorrect. Why?
Quality of advocacy
The Supreme Court has the following guidelines regarding the WritLA.
You will not be graded for a technically right or wrong answer but for the quality of your legal advocacy.
The test is intended to measure your skills in:
1) communicating in English - 20%;
2) sorting out the conflicting claims and extracting those facts that are relevant to the issue or issues in the case - 15%;
3) identifying the issue or issues presented - 15%; and
4) constructing your arguments and persuading your reader to your point of view - 50%
No right, no wrong
Alright, alright, you will not be graded for a right or wrong answer, but come on, what would be your score if the legal milieu calls for an opinion, whether a declaration of nullity is needed or not? There’s a definite answer, either a yes or no. (This actually happened in the 2011 bar exam. The Legal Opinion test requires you to opine whether the marriage needs a declaration of nullity.)
I don’t think the bar examiner would award you a full 100% if your analysis is wrong. He would hesitate.
Technically, you will not be graded for a technically right or wrong answer.
In reality, the examiner may deduct, say 10 points from your score for being technically wrong, even after assuming you scored perfect in the four scoring categories such as communicating in English, or sorting out the conflicting claims.
And that deduction could be the deciding factor in your becoming a topnotcher, or, in a critically decisive juncture, could mean getting a 75.00 (pass) or getting a 74.99 (fail). Yes sir, in a decided Supreme Court case, a grade of 74.99 does not make you a lawyer.
Principle of equivalence
Have you ever thought of it this way? Every 10-point deduction in the Memorandum is equivalent to 40 mistakes in Criminal Law, or 27 in Political Law, or 27 mistakes in Mercantile Law, or 27 in Civil Law, 30 in Labor or 30 in Taxation; or this: the equivalent of 40 mistakes out of 50 items in Ethics, meaning you only got 10 questions correct!
I don’t think the Bar Committee of the Supreme Court has ever analyzed these weights in this manner: what a 10-point deduction in Memorandum could really mean to an examinee’s final grade.
Obversely, it is better for you to gain 10 points in Memorandum which is easier, than to work hard to correctly answer 40 questions in Criminal Law.
Well, look at it this way, if you have 40 incorrect answers in Criminal Law, you would not become a lawyer.
That is the never-before analyzed impact of a 10-point deduction in the Memorandum. And always remember this: The examiner is very subjective in checking the Memorandum. He can just unwittingly deduct five points in good faith without realizing its annihilating effect on your MCQ scores.
Angelic reserves
Appreciating these facts from another angle, given that 75% is the passing score for the Memorandum, any extra points above 75% would have a tremendous redeeming effect on your MCQs. Thus, if you get 85%, you will have an extra 10 points above the passing of 75% in Memorandum and these 10 extra points can recover the equivalent of either 40 mistakes you made in Criminal Law, or 27 mistakes in Political Law. Wow. That’s some angelic redemption.
Handwriting effect
And look out for this as well: the examiner may unwittingly deny you of a perfect score by giving you only 95 points instead of 100 in Memorandum just because he doesn’t like your handwriting. This seemingly innocuous act is actually a real deduction of 5 points, equivalent to making 15 mistakes out of 75 items in Labor Law or making 20 mistakes out of 50 items in Legal Ethics.
The WritLA is deceptive and dangerous especially in the hands of the examiner who does not realize how crucial that single point in WritLA is. The scary thing is, most likely, the examiner does not have any quantitative idea of how his innocuous actions could be mission-critical to the fate of the bar examinee on the edge.
-End of Part 3-
(barflunker@gmail.com)
Update: Sometime in December 2011 (just one month after the bar and long before the official results were released on Feb 29, 2012), I sent sample chapters of these Confessions to a newspaper of national circulation for possible publication but for several reasons they did not.
"Don't worry, my knowledge of the law hasn't decreased just because I flunked the bar."
- Bar Flunker
Table of Contents
Confessions of a Bar Flunker
Part 6 (intentionally not uploaded at this time)
Part 7 (intentionally not uploaded at this time)
Part 11 (intentionally not uploaded at this time)
Part 12
Part 13 (Epilogue; written after the official release of the results)
Note: Due to very personal details contained therein, I have withheld some chapters. Please drop by once in while to see if i have finally released the intentionally omitted parts.
Part 13 (Epilogue; written after the official release of the results)
Note: Due to very personal details contained therein, I have withheld some chapters. Please drop by once in while to see if i have finally released the intentionally omitted parts.
Update: Sometime in December 2011 (just one month after the bar and long before the official results were released on Feb 29, 2012), I sent sample chapters of these Confessions to a newspaper of national circulation for possible publication but for several reasons they did not.
wait, where's part 2?
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