From whom would you learn the most valuable lessons: from the bar flunker or from the bar topnotcher?
This is the continuing confession of the most famous unknown, and towards the end, I will reveal how, why, and how I knew in advance I flunked the 2011 bar. That’s for you to wait and for the Supreme Court to investigate.
Written Legal Analysis
Almost a decade ago, I was fortunate enough to talk to two or three former bar examiners. According to them, they score by deductions, rather than additions.
Instead of adding individual scores for each problem, they just count the total deductions because it is easier that way. Just think, instead of adding ten 9’s to come with 90, it is easier to deduct 10 points from the perfect score, that is, 100-10 = 90. So they write down the deductions per problem such as -2, -2, or -3.
I was exaggerating when I said that will get a zero score for an erroneous legal analysis because the Supreme Court itself has declared in no uncertain terms that you will not be graded for a technically right or wrong answer but for the quality of your legal advocacy.
My point is that the examiner will hesitate to award you a perfect score if your legal analysis is erroneous despite your perfect advocacy.
The Supreme Court spelt out the grading system for the WritLA such as 50% for “constructing your arguments and persuading your reader to your point of view.”
But I seriously doubt if the examiners will grade you according to those guidelines. In all likelihood, they will take one quick overview of your entire three-hour finger-cramping, wrist-breaking handwritten magnum opus, and just give a raw score of say, 75 or 80, or 85, without really thinking that the difference between 80 and 85 is equivalent to wiping out 15 hard-earned 45-minute, mentally-exhausting correct answers in Labor Law.
LFM and CDDB
The concept of WritLA is best explained by the Supreme Court grading guidelines I mentioned earlier.
In both the Memorandum Writing and the Legal Opinion, the data in the bar problem are segregated into the Legal and Factual Milieu (LFM), and the Codal and Doctrinal Database (CDDB). Again, I invented these terms LFM and CDDB, for convenience.
In the Memorandum Writing, the LFM consists of an overview of the case and court stenographic transcripts of the oral examination of the witnesses by the counsels. This is excellent because the examinees are left on their own to analyze the testimonies and establish or extract admitted facts and controverted facts. It is a realistic simulation of the work trial lawyer.
And I think the most important part of this written test is that it assesses the manner by which the examinee gives weight and significance to the legal and factual issues, evidence, theories, defenses, and conclusions that he personally extracts from the LFM portion of the given problem.
His insights and thought processes as a lawyer will be highlighted because he is given three hours and fifteen short-bond paper pages to do so, unlike the traditional bar where the examinee is only given about three minutes to write down his essay answer.
The CDDB is a database or collection of codal provisions and doctrines provided in the problem set. Due to the CDDB, the examinee could no longer invoke having forgotten the text of the law, or the text of the doctrine. However, the CDDB contains conflicting provisions or conflicting doctrines, or those not needed to resolve the case. It is up to the examinee which codal provisions or doctrines he should use to support his cause.
Furthermore, using the CDDB, the examinee crafts his advocacy by integrating the provided codal provisions and the doctrines into one comprehensive memorandum.
And to support the declaration of the Supreme Court that the examinee will not be graded for a technically right or wrong answer, the examinee chooses the most important tactical decision of all: Are you preparing a memorandum for the Plaintiff or for the Defendant?
What could be more realistic than that, as a test of how you would argue as a lawyer? After all, there’s a lawyer for each side of the case and you can be hired for either. And you might have noticed that the lawyer for indefensible cases gets paid ten times higher than the other side.
In the bar review centers, the lecturers advise the reviewees: Unless you know what you are doing, don’t try to risk your scores by playing defendant. Being plaintiff is a safer bet because all you have to do is to make the allegations, support your allegations with some evidence, and then copy from the CDDB the appropriate provisions and doctrines that support your allegations.
There is wisdom in that advice. Don’t play risks with your scores especially if you’re gunning for the topnotcher crown. Or if you think you are on the borderline. But for reasons that I would reveal towards the end of this confession, I chose the defendant’s side.
As for the Legal Opinion, which is 40% of the WritLA, the LFM consists of a client seeking for a legal opinion regarding a particular legal or factual issue and its concomitant sub-issues. Again, the CDDB is given, some of which are included to distract the examinee from the main issue. Forthwith, the examinee comes up with a legal opinion citing the codal provisions and doctrines that apply to the given legal and factual milieu.
Octet Rule
Who is going to check your WritLA? And will you get a fair evaluation of your lawyering skills?
There are eight bar examiners, one for each subject. In addition to their tasks of preparing the legal milieux for their respective subjects, the Chairman of the Bar Committee formed them into two groups of four. Group A will check the Memorandum Writing, and Group B will check the Legal Opinion.
Is this good or bad? Extremely terrific! Why?
This is the ideal setup for a fair, equitable and comprehensive review of your ability as a lawyer. You have an octet of different experts, each with his own discipline of expertise, who will review your written legal analysis as exemplified in your Memorandum Writing and your Legal Opinion.
In my opinion, the adaption of the octet of experts is an excellent institutional reform that reduces the myriad of problems associated with the traditional bar format.
Among the issues reduced significantly are: poor handwriting, bad mood of checker, tired checker, biased checker, checker’s deep expertise which tends to expect too much from a fresh graduate, and analogous issues.
With the octet system, the remedial law expert will review your written legal analysis and his judgment will carry equal weight as the taxation expert. An unfair review by the ethics expert would be smoothened by a fairer review by the civil law expert. The unjustified high expectations of the mercantile law expert would countervailed by the criminal law expert. The doctrinal bias of the political law expert will be flattened out by the labor law expert. And your poor handwriting…hmm… I can’t speak for examiners on this issue.
Statistically, the variability and the skewness of the experts and their reviews would somehow reflect a more justified average, by having the outliers, the variances, and the deviations cancel each other out, thus resulting in a more equitable, a fairer, and a more comprehensive judgment of the examinee’s ability and capacity to become a new member of the bar.
Again, this is a brilliant idea by the Supreme Court Bar Committee and its consultants.
And what’s this I hear that the 2011 Bar Chairman himself has been personally checking the WritLA test papers?
Appeal
Given my expositions earlier, I have an appeal though. My appeal to the examiners who are checking the Memorandum: Do not deduct without solid justification because each whimsical one-point deduction is equivalent to wiping out four correct answers in Criminal Law, or Ethics; or wiping out three correct answers (actually 2.70 correct answers) in Political Law, Mercantile or Civil Law; or wiping out three correct answers in Labor or Taxation; or wiping out two correct answers in Remedial Law.
Again, I have to emphasize how difficult it is to get one correct answer in the MCQ because of all the time, effort, knowledge and analysis involved in each and every one of the legal milieux given; even tremendously more difficult to get four correct answers in Criminal Law. And yet a single whimsical one-point deduction in Memorandum just because the checker does not the like examinee’s handwriting could decimate four such correct answers.
Leverage effect
Thus, the Memorandum and the Legal Opinion could either be an extreme saving grace if you hit the bull’s-eye, or, a devastating disaster if you missed your analysis.
I call this the “leverage effect” of the WritLA.
Revision of weights
Should the weights of the WritLA be revised?
Based on our discussions, the leverage effect of the WritLA is significant. A bad performance in WritLA could unfairly decimate an examinee’s hard-earned MCQ raw score. Or, a good performance in the WritLA could good dramatically redeem his dismal MCQ.
A raw score of 10 points in Memorandum Writing is equivalent to 40 correct raw answers in Criminal Law. And we have discussed in detail the near impossibility in obtaining all those 40 correct points and the corresponding blood, sweat and tears of over an exhausting hour allocated for it. Note that the total of 100 legal milieux in Criminal Law is allocated only two hours.
This confession is not the channel, and today is not the time to propose quantitative changes to the leverage effect but it is certainly worth studying separately. I am willing to share the spreadsheet model I have created to make this leverage analysis so that the Supreme Court wouldn’t have to reinvent the wheel.
Hitherto, nobody has analyzed the impact of the individual subject weights and the leverage effect. Everybody just sort of accepted the weights without critical analysis and without the “magnitude and proportion” analysis we did earlier.
The Supreme Court Bar Committee was too busy performing the significant things; on the other hand, true to form, the most famous unknown was doing my main occupational passion which is the constant contemplation of the immaterial, the irrelevant, the insignificant, and the obscure.
Leveraging the topnotcher
Before we leave this topic, please embed in your mind the powerful impact of the WritLA leverage: A perfect score of 100% in both Memorandum Writing and Legal Opinion, means that you only need an average score of only 58.3% from your MCQ to obtain a final bar grade of 75. Congratulations, you are now a lawyer.
In almost all bar exams, the Supreme Court had decided to lower the passing grade. Ceteris paribus, if lowered to 60, the required MCQ is only 33.33%; if lowered to 70, the required MCQ is only 50%.
Given the same 100% in WritLA, and your MCQ score is 85% your bar grade will be 91. Congratulations, you are a topnotcher. Daintily, such a grade will land you among the top ten.
Topnotcher? Let us visualize this scenario. What does it take to obtain 85% in the MCQ? For simplicity’s sake, let us assume all the MCQ subjects have 100 items. To obtain 85% means that you make 15 mistakes in each of the subjects. Fifteen mistakes? That’s a lot. It means that you failed to correctly analyze 15 out of 100 legal milieux. I mean, that’s a wide latitude for errors. As a normal bar examinee with a normal legal knowledge accumulated over the last four years and six months of studying law, minimizing your errors to 15 is certainly humanly possible. Well, 10 mistakes might be a hard target but 15? That’s certainly within normal human range for an MCQ. You can really be a bar topnotcher.
But of course, this assumes a perfect score in the WritLA. How do you get a perfect score in WritLA, there being no right or wrong answer?
As I explained earlier, the first mental deduction by the examiner is when the examinee is technically wrong. It’s a mental decision, and you would not get a perfect score. So you’d better get those WritLA tests technically right. And the rest is just 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. Chicken feed.
Of course, you don’t expect 100% in WritLA, nevertheless, you can still be a topnotcher with these combinations giving a bar grade of 90: MCQ 90%, WritLA 90% or MCQ 88%, WritLA 93%.
To all the 2011 bar examinees here today, do you think you obtained 100% in WritLA?
To pass the bar, your adversary is the bar examiner. To top the bar, your adversary is your fellow valedictorian. In each of these battles, the mission-critical weapon that ensures your victory is your WritLA score.
Numerical analysis
I have completely analyzed impact of the numerical implications of the new bar format and in so doing, I have proven that contrary to initial popular opinion, the new format is still heavily dependent on your writing and legal analysis skills than on the statistical chances of the multiple choice questions. And thus I conclude: The concept that the bifurcated bar format is easier than the traditional bar is a myth. It is actually better, fairer, more equitable, and more comprehensive but not necessarily easier.
-End of Part 4-
(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.
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