From whom would you learn the most valuable lessons: from the bar flunker or from the bar topnotcher?
On the last bar Sunday, as I have mentioned earlier, were the written legal analysis (WritLA) performance tests. In the morning the four-hour analysis test was Memorandum Writing (60% of the WritLA) and in the afternoon was the three-hour Legal Opinion (40% of the WritLA.)
How does one prepare for the WritLA? Since I didn’t attend any review school, and since I didn’t decide to take the bar until three days before the first bar Sunday, I didn’t have any tips and most critically, I didn’t have any practice. My roommate showed me two samples of Memorandum Writing and Legal Opinion but it was useless for two things: 1. I didn’t read the given case facts because they were very long, and 2. The two samples answers were conflicting and therefore confusing (that’s the no right or wrong aspect).
And I hated writing by hand. When was the last time I ever wrote a paragraph by hand? And was I to practice writing for an entire memorandum?
So what was my preparation for the memorandum? I did read the book authored by the Bar Chairman on legal writing, and another book by another author. But I realized they were more like books on English grammar, syntax, and logical writing than they were legal books.
Other examinees were conscious of the WritLA in their six-month bar review, and probably prepared for it by reading sample cases and writing down sample essays in the mock bar exams.
Seven-hour sparring rounds?
Well, given just a few days of preparing for the WritLA, there was no way I could instantly change my writing style or my essaying writing skills. This means I practically did not prepare for it. This was very dangerous because of the weight of the WritLA as I have calculated earlier.
I was too tired from cramming in the last three weeks, and I was too tired to do some seven-hour handwriting exercise. Come to think of it, even just one round of practice would take four hours in the morning and three hours in the afternoon. And in preparing for the bar, would one round of seven-hour practice suffice? What would become of my wrist and fingers?
Writing skills
So I was resigned to my fate. Memorandum Writing and Legal Opinion are a test of logical manipulations in your mind, writing and organizational skills, and ability to communicate your thoughts to somebody you don’t see and without the benefit of corrective feedback along the way.
I mean, at least, in person, you will have instant body or eye language that can give you some ideas on whether you are connecting. Instantly, in face to face conditions you can take remedial actions.
And, you… by this time, by reading this confession itself, you know I’m not good at communicating, writing, and organizing my thoughts. Add to the precarious recipe my meager knowledge of the law, and voila, you have a veritable bar flunker drink.
Recall that in the WritLA, there are two sets of data already provided to you: The Legal and Factual Milieu (LFM), and the Codal and Doctrinal Database (CDDB).
This means you don’t really have to study anymore. There is more than you will ever need. It’s just really a matter of organizing your thoughts and arguments. Sounds easy? Maybe. Let me ask you, when was the last time you wrote a 500-word essay? In your first year college English subject?
So there was nothing I could do. I couldn’t become an instant writer, and I couldn’t become an instant grammarian, and I don’t have time to practice, and nobody to check the quality of your answer.
Thinking hat
Knowing there was nothing I could do, I felt relaxed. Instead, what I did was to think: If I were the bar examiner, what topic would I choose for the WritLA?
I discussed this with my roommate and I said, as examiner, I would choose torts and damages for the Memorandum Writing and controversial situations in Family Law for the Legal Opinion.
Why did I think so? Thinking as a bar examiner, I examined the different legal concepts and I decided that the area in which both sides of the argument could have reasonable defensible equal positions would be Torts and Damages. And for the Legal Opinion, I also decided that Family Law has enough issues for equally defensible positions.
Therefore, despite the fact that the relevant (and irrelevant) doctrines and codal provisions would be provided in the questionnaire, I brushed up my law on torts by reading Jose Nolledo’s Civil Law Reviewer, 1984 edition. No, no, it’s not a typo it is really 1984.
Similarly, I did the same for the marriage portions of the Family Code, using the provisions, not textbooks. I did read the printouts of the reviewers compiled by law students and fraternities that I came across.
Unnecessary
Again, this was unnecessary because the LFM and CDDB are provided but this was better than doing nothing. And I was determined not have those six hours of writing exercises. My practice will be the bar exam itself.
Still I figured knowing the major issues in advance (torts, damages, and marriage) would give me some confidence in analyzing the case. That is, if I was correct in wearing the thinking hat of the bar examiner.
Last Sunday
November 27, 2011 was the last bar Sunday. My roommate and I had breakfast in Jollibee, across UST, and it was full of examinees, parents, and supporters. Again, I noticed how isolated I was. No supporters, no school teams, no organizations, no prep talks.
Since this was the last Sunday, I wore a navy-blue suit, just the jacket, and I looked like a law dean than an examinee. This got me thinking, if I took the bar exam right after graduation I would have been a dean by this time.
The Memorandum Writing was slated from 8 am to 12 noon.
Anyway, we filled in our names and bar examinee numbers. Our seat numbering was re-arranged again. And we wrote our seat numbers at the back of the questionnaire which was still face down.
When the bell rang, we turned to questionnaire to the front page, and as I read the case I realized that the legal and factual milieu (LFM) was about Torts and Damages.
Torts
Exactly, as I expected it would be. Again, there was no really no material advantage to such prediction because everything is given. But it was a psychological boost for me, and that confirmed my sense of value as to what are important subject matters in law.
The case was about a child who was injured and hospitalized with broken bones due to an incident inside a supermarket. Among other things, the child’s mother claims he slipped on a wet floor.
The first decision facing the examinee was to choose which side to argue. As I mentioned earlier, the bar review centers suggest to their examinees to take a safer stance, and that is the plaintiff’s side.
Since I was prepared to fail this bar, and since the word “safe” wasn’t on my vocabulary that morning, I chose the defendant’s side.
I am not a stranger to creating controversial theories or siding with controversial positions, even on issues where I had something to lose, whether economically, or intellectually.
To challenge myself, I decided to argue the defendant’s side. I smiled to myself thinking that probably less than 100 people out of the 5.989 examinees sided with the defense, or less than 1.7%. After all, you have a child with x-rays of broken bones who was running after a rolling ball that caught his attention and who slipped in a supposedly wet floor of slimy liquid, with an alleged witness who saw the liquid and warned the child against the wet floor. How do you argue against that?
The Memorandum Writing is single most critical part of the test, carrying the single biggest weight of the most difficult bar examinations in the world, and I chose to argue the defense, the most difficult side to argue given the legal and factual torts and damages milieu that already favors the plaintiff. Unnecessarily risky and egregiously foolish; that’s exactly me. That’s the kind of things I do. That’s me. That’s kind of man I am.
Well, I did. I did argue against the plaintiff, and from reading the testimonies, I organized my own factual narrative and legal issues and the corresponding conclusions.
But a word of advice, don’t follow my risky strategy, especially, if you have a handwriting like mine; I cannot even read my own handwriting at times.
The answer sheet had 15 blank pages but consumed only about 12 to 13 pages.
I will not write here how I argued my case because it may be considered as “marking” my answer because my “weird” arguments could be easily identified by the bar examiner reading this confession before the publication of the official results.
Suffice it to say, I hinged my defenses heavily on evidence, in addition to the standard legal defenses available in a quasi-delict case, and I even discussed venue and jurisdictional issues in my preparatory arguments.
At any rate, why would anyone be interested in such details of a flunking candidate?
The person beside me, that woman who I think will be one of the topnotchers, as usual, submitted her paper about 45 minutes earlier and with a very clean handwriting.
Defending the indefensible
When I submitted my 12 to 13-page Memorandum Writing with about 30 minutes to spare, I breathed a long sigh of relief. After four hours of reading, analyzing, thinking, organizing, and writing I didn’t even care how good or bad my memorandum was. I was just glad it was over.
But before we leave this issue, during lunch, we discussed the arguments and they all used the “attractive nuisance” and all the arguments in favor of the plaintiff. I pointed out to them an obscure issue in the factual milieu whose importance they may have overlooked. Indeed, they realized they overlooked it. I told them I anchored my argument on that obscure issue, and that I think the defense is more defensible than they originally thought.
They all looked at me with OMG stares; they realized their arguments could have been weak if not wrong, and they agreed my argument made sense in case I was right in my understanding of that obscure fact.
I will, of course, tell you about it, once the results are officially published.
In summary, my extremely risky strategy for the Memorandum Writing was “defend the indefensible.”
Legal Opinion
In the afternoon, from 2 pm to 5 pm, was a three-hour mind-breaking ordeal. This time, they collected our Notice of Admission slips, never to be returned.
At the ring of the bell, I turned the questionnaire and I realized my calculation was again on the mark. Somehow, this “thinking like an examiner” exercise was working.
The legal and factual milieu was about a defective marriage, and additionally the client requested for advice on a prenuptial agreement.
Remember, how I risked my entire 60% of the WritLA by choosing the defendant’s side?
Well, that’s nothing compared to this. Listen carefully.
The LFM calls for an opinion regarding an alleged prior defective marriage and what the remedy would be, given the time frame. The remedy should cure the defect within one month because there client was to wed within that time, and everything has been prepared or paid (the videographers, the catering, the hotel etc).
Now, in the Family Code, there are two types of defective marriages: 1.) voidable marriage and 2.) void marriage.
All you have to do is to identify the alleged prior marriage as either voidable or void, and then identify the remedy that fits within the time frame. Very simple: void or voidable.
But then, I don’t know what’s wrong with me but I tend to complicate matters. What I did was, I did not identify the marriage as either “void” or “voidable.”
I’m sure the justices and the law professors are twisting their eyebrows by this time. It’s got to be either “void ab initio” or “voidable”, there is no other choice.
Guys, I tell you. If you know me, you will know that this is not the first time I enriched the law with my offbeat ideas. But today is not the time to tell you about those ideas some of which have been adopted by the Supreme Court in one way or another.
And, yeah, at least one section of the Rules of Court has been amended due to my ideas. Some other time, I will tell you about it.
What do I mean when I did not identify the marriage as either void or voidable?
What I mean is, invented a third type of defective marriage. Yes, I did. I defied the Family Code and jurisprudence by inventing a third kind of defective marriage right here in the bar. And that’s a bar suicide right there.
But then, if you know me, that’s what I like to do. And my invention attempts to clarify distinctions between types of defective marriages. The distinction will avoid huge confusions for future law students.
But do I have to perform such jurisprudential contortions right in the middle of the most difficult bar exams in the world? What have I to lose?
However, I will not reveal today, what my legal invention is, but I took the risk, and explained in my Legal Opinion what I had in mind.
Should a closed-minded examiner review my Opinion, I would surely fail. On the other hand, an open-minded examiner may appreciate what I had concocted and how this jurisprudential invention would greatly simplify the understanding of defective marriages.
What’s my advice to you? Definitely, do not engage in legal exhibitionism in the bar examinations. What I did was an unnecessary exposure to risk of failure via legal adventurism. Do not do it.
Anyway, going back to the exam room, while the mystery woman again submitted her paper about one hour ahead of time, I submitted my 12 to 13 page Legal Opinion with about 45 minutes to spare.
In summary, my extremely risky strategy for my Legal Opinion is “if it doesn’t exist, invent it.”
Consumatum est
The exam was supposed to end at 5 pm. I went to the restroom, then down the building, then went to the grounds near the UST main building where our cellphones and bags were deposited. Upon claiming my cellphone, I composed a text message.
At 4:35 pm, November 27, 2011, I texted to those concerned: “Finished!!!!!!”
--- End of Part 8 ----
(barflunker@gmail.com)
"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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