Bar Flunker

"Don't worry, my knowledge of the law hasn't decreased just because I flunked the bar." - Bar Flunker. The Philippine exam is touted as the most difficult bar exam in the world because its coverage is too wide and because the exam is too long consisting of four whole Sundays. This is a first person account of the first ever bar examinations in Philippine history to adapt a bifurcated format, how he prepared, how he failed, and how he knew ahead he flunked the 2011 bar exam.

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Thursday, January 12, 2012

Confessions of a Bar Flunker: Part 1

From whom would you learn the most valuable lessons: from the bar flunker or from the bar topnotcher?

I am the most famous unknown and I am a bar flunker. And this is a first person account of how and why I flunked the first bar examinations implementing the most revolutionary reforms in the Philippine bar’s 100-year history. And, parenthetically, I may have set Supreme Court history in taking the 2011 bar.

Yes, sir, the one at the back, in maroon T-shirt, what’s your question?

“Who are you and why should we care?”

Ah, I knew it. Actually, the question itself is the answer. If you have to ask who I am, then it follows that you don’t know me, which means I’m not intelligent, rich, famous, or powerful. Therefore, you shouldn’t care. I’m not some hotshot summa cum laude or some high-flying class valedictorian from some big time law school. And since it is embarrassing to be a flunker, please allow me a thinly-disguised pseudonym to shield me from the general public.

Next? Ah, yes, the lady in blue, yes, ma’am?

“Are there learning objectives in your discourse? What lessons are we supposed to get from you?”

Well, with due respect ma’am, the signage says Confessions of a Bar Flunker not Confessions of a Bar Topnotcher. For that one, you’ll have to wait for six months and that wouldn’t be mine to deliver.

And so, since all of you here are attached to the study of law in one way or another, you are expected to be rational enough to realize that the only lessons you will ever get from me is how not to pass the bar.

Any more stupid – oops – relevant questions? The lady in red, yes ma’am.

“The bar exam was just concluded a few weeks ago and officially, the results will be out normally in six or seven months. How did you know you failed it? Do you have a mole in the Supreme Court?”

Hmmm. That’s exactly the mystery isn’t it? That’s the reason why the maroon, the blue, and the red ladies and gentlemen are still here. I know you don’t care to know how I failed the bar, or why I failed the bar. You only want to know how, this early in the waiting game, I knew I failed the bar. Come on, we all know that’s what you want to know.

However, if I were to reveal the mystery right now, nobody would be around any longer to listen to my confession, and that would be sad, wouldn’t it? I mean, me talking, and nobody listening.

Anyway, here’s what I’m going to do. I’m going to reveal the mystery at the very end of this very long confession. That’s if you really think the mystery is worth the wait. But does it really matter if I knew I failed six months ahead of schedule? I mean, six months from now, when the Supreme Court officially releases the list would you really care if my name isn’t in the newspapers?

Personally, if I were you, I would leave this place right now.

I mean, why would anybody pay attention to an account narrated by a famous unknown who is a self-confessed bar flunker? Yes, indeed, why?

You must realize this is not an account by a competitive full-time best bet, or by a summa cum laude, or by a valedictorian, or by a bar topnotcher, or by a law school dean, or by a legal practitioner, or by a judge, or by a legal columnist, or by any one of the bar examiners, or by the Supreme Court justice assigned as the Chairman of the Bar Committee, or by the Chief Justice of the Supreme Court. No, this is not that at all.

At least with the valedictorian or bar topnotcher who would become Chief Justice, Senator, or President someday, we could expect intelligent academic insights into this new bar format. But the problem is that he only comes out of hibernation after landing in the top ten. Prior to that, if you ask him, he would be shier than a lamb. And after he is heralded as the glorious topnotcher, he would be bound by false humility.

At least with the dean, the practitioner, or the judge, we could expect an excellent review of the new format in relation to the doctrines and principles covered in the bar that are relevant to trial practice.

Also, at least with the legal columnist we could expect him to excellently explain to the general public the intricacies of the new format and how it would affect the quality of lawyers and their pleadings.

Dean Andres Bautista of the Far Eastern University, class valedictorian at Ateneo, president of the Philippine Association of Law Schools, and columnist of the Philippine Star had written about the new format a few weeks ago (Nov. 12).

Former Dean Raul Pangalangan of the University of the Philippines, former bar examiner, member of the Supreme Court committee who crafted the 2011 bar reforms, and columnist of the Philippine Daily Inquirer also wrote a column about the new format as the examination month progressed (Nov. 25). You contact them for copies because their unique positions empower their insights.

At least with any of the 2011 bar examiners, we could expect firsthand knowledge as to the insights they used in crafting the first multiple-choice questions (MCQ) ever to be used in the bar and ensuring that the quality of the barrister is better, or at least the same as the with old format. The raw MCQ results would be a huge data mine for the examiners. However, their identities remain an unsolved mystery until after the official release of the exam results.

Finally, with the Chairman of the 2011 Bar Committee, who is an associate justice of the Supreme Court, and with the Chief Justice himself, we could expect to partake of the grand strategy and execution of the most radical departure from the traditional bar exam format. Being the person before whom the bucks stops, the bar chairman has access to original data, ideas, suggestions, and feedback from deans, practitioners, the judicial academy, the integrated bar, and from the examiners. And remember that Justice Roberto Abad, who was once a dean of the University of Sto. Tomas law school, is an excellent communicator having authored the book Fundamentals of Legal Writing (2004).

(With this, I have just given editors an interesting article idea to pursue once the results are released. And if you are a 2011 bar examiner, or the bar chairman himself reading this, may I suggest you start jotting down notes so that wouldn’t forget them when write your own confession.)

However, the bar chairman has no feedback servomechanism directly from the examinees themselves. That’s the defective black hole in the bar chairman’s intelligence mining.

Anyway, what have I done so far? I have identified eight types of experts, an octet, who better deserve your attention.

Therefore, there being no more rational obstacle, you are now unconditionally free to abandon me here on my own.

Wait, wait, wait. Wait a minute. Come on guys, I was just kidding, are you really leaving me here all alone? Come on. This is so awkward, so humiliating, so embarrassing. Guys, come on, please. Please hang around… please listen to what I have to say.

Okay, okay, I’ll make it worthwhile for you. Can I interest you in something? Just to make you stay. Remember, not all is useless in a useless talk.

“I’ll hang around! Yes, I’ll stay. But on one condition: After you have thoroughly convinced us to better hear from the real experts, can you give me one, just one, even the flimsiest, the lamest, the weakest excuse why I should listen to you. Just one, no matter how lame it is.”

Yes! Thank you for hanging around. Your request is fair enough. I will give you not one, but several reasons.

First, there is nothing yet from the real experts, so there’s hardly any contest at all. On one hand, you have nothing from them; while on the other hand, you have me, right here, right now. As the CSN song goes, “if you can’t be with the one you love, love the one you’re with.”

Second, anything written by a topnotcher would be useless for you and me. I know I said not all is useless in a useless talk but come on, what could you gather from a topnotcher that would be even remotely relevant to real people like you and me?

We could expect his generic motherhood statements like, “You know, that exam was really hard, I even thought I failed. This comes as a big surprise. I thank all of you for your support, my friends, my teachers, my family. The secret of my success? Just study hard and pray hard.”

The topnotcher’s narrative would be fatally defective, though. In what way? First, it is so comfortable and so safe to write about being a topnotcher after you have known you are one.

Then, there’s this thing about being a topnotcher. A topnotcher is by definition always a defect, a freak of nature, an outlier, and aberration. I mean, imagine a concert stadium of 6,000 people, and you select the 10 most knowledgeable ones. It would be a tough delicate act, and for sure the competition would be very intense.

The topnotcher by no means represents the average bar examinee. Real people like you and me could not even validate the topnotcher’s experiences, even vicariously.

No matter what the format is, a topnotcher will always be a topnotcher. Consequently, the variation in exam format is hardly a differentiating factor for him, and his attempt to distinguish between the two would be meaningless for ordinary mortals like us.

Third, it is true we have established how extremely valuable would be the insights of the examiners themselves who designed the MCQs and the legal writing portion, and the insights of the bar chairman who supervised the actual execution of this grand design. However, their narratives would be defective. Why? Despite their combined intelligence, eloquence, and eminence, the bar chairman and the bar examiners’ narratives would still suffer from a huge fatal defect: none of them actually took the 2011 bar exams!

Fourth: Unlike the real experts, I was the one who actually, physically, mentally, and emotionally took the first bar exams to feature new format. Probably, I was the true real average representative of the 80 out of every 100 who fail the bar. I did warn you, I said “probably.”

Whether the test was short or long, easy or hard, good or bad, fair or unfair, I am the one qualified to testify to that effect. Not the experts. This is not hearsay; this is a real first person account narrated without the benefit of the certainty of the official results.

Fifth, this is a real, actual, physical, mental, and emotional experience of the most famous unknown. Forget all the other excuses I mentioned earlier. This last reason alone - being the actual experience of the most famous unknown - is compelling justification enough for the maroons, the blues, and the reds to hang around to listen to the portrait of the most famous unknown as a bar flunker.

-End of Part 1-

(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 1

Part 2 (intentionally not uploaded at this time)

Part 3

Part 4

Part 5

Part 6 (intentionally not uploaded at this time)

Part 7 (intentionally not uploaded at this time)

Part 8

Part 9

Part 10

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.

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.

Tuesday, January 10, 2012

Confessions of a Bar Flunker Part 3

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)

"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 2

Part 6 (intentionally not uploaded at this time)

Part 7 (intentionally not uploaded at this time)

Part 8

Part 9

Part 10

Part 11 (intentionally not uploaded at this time)

Monday, January 9, 2012

Confessions of a Bar Flunker Part 4

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)

"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 2

Part 6 (intentionally not uploaded at this time)

Part 7 (intentionally not uploaded at this time)

Part 8

Part 9

Part 10

Part 11 (intentionally not uploaded at this time)

Sunday, January 8, 2012

Confessions of a Bar Flunker Part 5

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 bar flunker, and towards the end, I will reveal how, why, and how I knew in advance I flunked the 2011 bar given that the Supreme Court has not yet officially released the bar results. That’s for you to wait, and for the Supreme Court to investigate.

For the first ever bar exams using the bifurcated format, a total of 6,210 examinees petitioned the Supreme Court.
How did I know? I personally saw the list when I obtained my exam permit, and I was one of those in the last few pages of the list.

However, five of the petitioners were denied and five backed out, and thus, the official number was exactly 6,200 examinees. This is not the highest on record, though; it was 6,364 in 2008.

By the way only 1,310 (20.58%, 8 out of 10) made it that year, and yet the Supreme Court already added scores to those who originally failed.

UST

On the first bar Sunday, only 5,989 examinees appeared. This means 211 backed out before the first Sunday. Rumor has it about another 200 did not come back for the second Sunday. The Supreme Court enlisted 1,636 personnel to help in the bar. The Manila Police District fielded more than 100 police officers.

The choice of the University of Santo Tomas campus is perfect. The first revolutionary change in the bar exams in its 100-year history was held for the first time in the 21.5-hectare UST campus comprising a whole block in Sampaloc, Manila.

The several separated buildings would compartmentalize any untoward incidents or stampedes. And UST’s huge open grounds are good for crowd control especially on the first day of the bar. The open grounds are also a perfect refuge in case of fire or earthquake.

Founded in 1611 by the third Archbishop of Manila, Miguel de Benavides, UST has the oldest university charter in Asia. UST has produced four Philippine Presidents, three Philippine Vice Presidents, and six Chief Justices of the Supreme Court. Its Faculty of Civil Law is the oldest law school in the Philippines. And of course, Jose Rizal partially studied medicine there.

Incidentally, 2011 is UST’s 400th year, and Rizal’s 150th birthday.

Having wisely moved the bar exam from rainy September to November, the Supreme Court avoided the floods around the area.

Rainy Sunday

The first Sunday, November 6, 2011, was dark, gloomy and rainy. While it rained all night on Saturday, surprisingly there was no flooding though the roads were in inches of water.

As usual, the network TV crews covered the opening day as early as 6 a.m. and they happened to be on my assigned entrance gate. I ducked away from the cameras for fear of being recognized. After all, I am famous, although unknown.

Unlike the previous years, and as a result of the deadly bombing in the last year’s bar, no bar operations or “bar-ops” chanting or cheering were allowed. Bar operations is a project usually by fraternities or the law school administration where lower-year law students volunteer to provide support for the reviewees. Bar ops support are not only on the exam days but actually starts as early as the bar review six months earlier which includes research materials, collating the latest jurisprudence, textbooks, arranging for lodging facilities during the exams, and moral support. These are time consuming activities and the bar ops aims help the reviewees focus on studying rather than collating information.

There were no chanting, no shouting, no banners, no streamers. Besides the downpour made revelry impossible on this gloomy morning. Later there were streamers being installed outside UST but the Supreme Court staff ordered them taken down.

Together with the exam permits, the Bar Committee issued exam guidelines and sketch maps of the buildings. We will go over some of the guidelines later on.

Only the UST gates along Espana Boulevard were open for the bar examinees, and the color-coded nameplates were assigned to specific gates. The general public who wanted to access the UST chapel and the UST hospital entered via the gates in the other streets, P. Noval, and Forbes Ave. (now Lacson Ave.). Thus, practically, the entire UST open grounds and buildings were at the control of the bar committee.

Despite the muted support of the bar ops from each school or fraternity, coupled with the drizzle that early gloomy morning, their support were still visible. Some bar ops groups have their own T-shirts, jackets, bags in uniform. They carried lunch packs, snacks items and last-minute review materials and umbrellas.

The separate and colorful herds of bar ops supporters brought down on me the reality of the isolation and separation that has surrounded my bar adventure.

I walked around the UST block towards my assigned gate 4 along Espana, under the drizzle, with no jacket, no umbrella, and no hat. Such miscalculation resulted in my gray-blue long-sleeved shirt getting wet. And when I eventually got inside my room, I was the only one that wet.

With a mere glance at the nameplate hanging from your neck and without inspection, the police ushered us into the UST grounds.

We still had to walk about half a kilometer to reach our assigned buildings. Four buildings were used for the examinations, namely, the Main Building (administration), Benavides (high school), St. Raymond (commerce), and the St. Martin de Porres (medicine) buildings.

Due to the rain, UST provided service vans to ferry the examinees to their exam buildings. We were told to queue up. When the usher saw I was the only crazy enough with no umbrella or hat, he told under a pedestrian sidewalk far from the queue. But when the vans came he forgot all about me. I finally to run to the queue despite the rain and got on a van.

The van could only go as far as the Main Building so we disembarked. Under the drizzle we had to run to the roofed pedestrian walk towards my designated building as it was still way out to the back of the Main Building.

I had a blue name tag which was assigned to the Benavides building. Just outside the building entrance, there were three to four long tables where the police searched your bags and conducted body searches. We had to deposit cellphones and gadgets. We could only claim them back at the end of the day’s exams, not even during lunch breaks.

We were allowed to bring in your bag, books, notes, and food and drinks to the exam room itself.

The rooms were fully air-conditioned, jackets were appropriate, but I only had one problem. The plastic arm-chairs were designed for cute high school students, thus uncomfortable for big adults. Personally, I couldn’t sit properly.

During the lunch break, many stretched out on the grounds eating their pack lunches while doing some last minute readings for the next subject.

There was a canteen in the Benavides building with reasonable food at reasonable prices. Although, having chicken cordon-bleu for four Sundays was getting to be monotonous. There was also a canteen in the Martin de Porres building. One could go outside of the UST campus for lunch although that would be time-wasting; in five minutes, you may able to scan your notes for topics that might come out in the exam.

Wisely, the Bar Committee did not announce in advance the exit gates in order to prevent the bar ops from noisy revelry. On the first exam day, the exit gates were the ones on Dapitan St.; on the last bar Sunday, the ones in Espana.

There was bar ops chanting on the first day at the Dapitan side, as I exited. But on the next Sundays, there were none. Maybe the Bar Committee told them to stop.

Bar Guidelines

To give flavor to the conduct of the bar for the benefit of the general public, I am summarizing herewith the guidelines.

The gates open at 5 a.m. and close at 7:30 p.m. You still have time for picture taking and to attend mass at UST’s Sto. Rosario Chapel at the end of exam.

The first bar Sunday is very heavy because three subjects are compressed into this day, Political Law and Labor Law in the morning, and Taxation in the afternoon. The second day has two heavy subjects, Civil Law and Mercantile Law. The subject of Civil Law alone could be the subject of an entire bar by itself due to its very wide coverage. The third Sunday is another heavy day with three subjects, Remedial Law and Legal Ethics in the morning, and Criminal Law in the afternoon. On the fourth Sunday are the heaviest-weighted subjects, Memorandum Writing for four hours in the morning, and Legal Opinion Writing for three hours in the afternoon.

Petition

Your quest for the bar officially starts with your petition to the Supreme Court to take the bar. Several decades ago, the bar was usually conducted in November, then it was changed to September, and for 2011, the Supreme Court reverted back to November, and changed the venue to UST for the first time.

For 2011, the deadline for the petition was August 15 but for 99.99% of the applicants this should not be a problem because the forms are given by the Review Center who usually do the filing for them. In my case, as I already told you, I had to ask the petition form from a friend and submitted it myself a few minutes before the deadline.

The Supreme Court published the list of petitioners which numbered 6,200 for the 2011 bar. Starting ??the bar exam kits were ready for distribution. This kit included the Notice of Admission (exam permit), Color-coded big nameplate, and a list of rules and guidelines which included sketch maps of UST.

Materials

The building and room assignment were written on the nameplate. For the MCQ, a No.2 pencil was required for shading the circles on the answer sheet. Instead of two pencils as advised, I brought 12 Faber-Castell pencils, a mechanical pencil sharpener with many erasers. For the WritLA exercises, I used a Stabilo Black for its nice feel to the fingers, with Pilot Hitechpoint V7 as back up. In hindsight, I should have used blue ink instead of black so that my handwriting would have stood out against the black lines of the answer sheets.

First Bell

My floor was on the – come on, do you really think I will tell you at this stage? My room was – oh, come on, not now.

Once inside the room, the proctors asked for our Notice of Admission, one of them signed it, and they pointed out to us our assigned seats. My seat number was – oh, still, not now. Like many of my roommates, I scanned my notes and prayed hard. This was the time to visit the rest room, before the first bell.

When the first bell rang 15 minutes before the start of test, we placed our bags and notes in front, keeping our bottled drinks and snacks in our chairs.

They distributed the blank answer sheets. Everybody out there were familiar with it as the form would have been shown in the Review Centers, or downloaded from the SC website. And lastly, the forms were part of the Bar Admission Kit.

Except me. Because I did not attend any review centers, and since I obtained my Bar Kit only three days before the test, I didn’t have time to scrutinize it. Instead, I used up one day to shop for personal necessities, and the remaining two days to study for three bar subjects. Give that some moments of thought; reviewing for Political Law, Labor Law, and Taxation in just 48 hours, not six months. I know, you wouldn’t believe me, but my roommate does. But that’s jumping the gun, I will tell you more later.

At any rate, they instructed us to write with a pen (not pencil) our Bar Examinee Number (BE No.), our names and signatures. So I filled in my BE number which was – come on, do you really think I’d identify myself this early?

About 10 minutes before the start, the exam booklets arrived in legal size white bond papers. They were distributed face down, and we were told to check if we had the correct page sequence. There were a few kinks. One or two had missing pages, and there was even a missing exam booklet on one occasion. Maybe they were able to trace it because we were eventually ready for the second bell.

Finally, the bar!

There was an eerie silence as we were all waiting for the second bell. The electric bells finally rang throughout the halls.

Finally, this is the bar! The synchronized rustling of papers and pencils signified the shifting of high gears towards the most difficult bar exam in the world.

As I turned the questionnaire face up and saw the first page, I had this kind of out-of-body experience. But I will tell you about it later. For the moment, let me focus on the conduct of the bar. Later on, I will tell you my personal impressions of the bar questions themselves.

I made sure I had the same “Set A” as with my answer sheet. My left and right neighbors got “Set B”.

We were told to write our seat numbers at the back of the last page as some kind of audit and control measure.

(this chapter has not been completely uplooaded bec some editing is needed on the working document; more to come about the details of the actual examination environment and procedures)

"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 2

Part 6 (intentionally not uploaded at this time)

Part 7 (intentionally not uploaded at this time)

Part 8