Byron P. answered • 07/17/21
Bar Exam and Law School Tutor With Decades of Teaching Experience
July 16 2021
Just in time for the July Bar Exam or in anticipation of your Fall Semester
Try to Avoid Rote Memorization at All Costs
Could you really pass the Bar, and 6 months later- with no prep- pass it again?
Ways to Avoid Rote Memorization:
(1) Use Current Events as a Species of Mnemonic. The Trump action against Twitter et. al (and the news about the case from the Talking Heads) will teach you much of what you need to know about the Free Speech Clause in the First Amendment as informed by the proper application of the 14th Amendment (the pipeline of the Federal Constitution to the States and State Actors, but seldom a worm-hole to permit the application of Constitutional restraints to individuals). See Masterpiece Cake Shop and consider the effect of the Article I Commerce Clause on violations by individuals who are not Federal or State Actors (products and fixtures in one State's McDonalds came from or through another State, i.e. Commerce), Conspirators as State Actors, and Private ventures that undertake what are normally considered public functions.
Class Actions? Can you identify in detail the composition of the Major (Primary) Class and putative subclasses in the Twitter suit? Numerosity? Adequate Representation when the named Plaintiff has an injury in fact not shared with any class member? A Class of one? Besides former President Trump, who else among the Major primary Class is a former President attending rallies to convince everyone that he heads the Republican Party and has begun steps to become a repeat President in 2024. And what about other aspects of Commonality such as Common Facts, Common Laws, Common Applications of Law to Facts, Common Injury, Common Damages, Common Replies to Affirmative Defenses, and so on?
(2) Change Latin Terms to Something you will Recall: "Respondeat Superior" means the "Superior Responds" for an agent's wrong while on an "Employer's Errand". And think like many Professors: Why use the English language when obscure Latin Terms will do? Kidding, of course.
(3) Think about the History of the Law (and take "Jurisprudence" in Law School): Examples: relatively early on, English Common Law limited redress for injuries mostly to those in privity of contract with the wrongdoer while later- during the fits and starts of modernization- English nobles slowly adopted Tort Law to expand the number of people that could sue for an injury. After all, high-born relatives did not want to see their low-brow kin relegated to the local Poor House. It was embarrassing. Or think about the origin of sovereign immunity- "the King can do no wrong". And what about English Equity courts that developed to escape the strict rules "at Law"?
(4) Cross-reference (cross-fertilize) a legal rule in one subject with virtually the same rule in another subject: In Tort Law, "Gross Negligence" is "Reckless Conduct". In substantive Criminal Law, "Reckless Conduct" may be "Manslaughter". The Law is far greater than the sum of its parts.
(5) Learn Rules and Doctrines by using Webster's Dictionary Terms (Common Parlance) and permit "plain speech" to sheppard you to the correct Legal Jargon. And you have to get to the proper Legal Jargon as a Professor or Examiner may grade or score you based solely on whether you mentioned most of the Legal Terms on the Professor's or Bar Examiners' checklist, particularly if he/she is, by that point, exhausted by the grading/scoring process and does not believe he/she has any energy left to read your text.
(6) MBEs and MCs (Draft Explanations): During your countless MC/MBE Practice Exams, select 3 out of 5 MC/MBE practice questions and write a "memo to self" explaining IN YOUR OWN WORDS why three suggested answers are wrong and one right.
(7) Don't use Acronyms like SOL or SOF. The practice will not improve your Law School grades or Bar Exam scores. And no matter how common the acronym, how do you know a Bar Examiner [straight out of law school reviewing his first Essay answer, ever (yours)] will know what you know. Think "Risk Avoidance"- type the words up on colored paper and tape it on the wall in your study area. Think "worst-case"... even if the Examiner or Professor may earlier have known the meaning of the initials "SOL", he/she may just be having a bad day.
(9) Some Terms must be Rotely Memorized. An example: "Actual Malice" as used in NY Times v Sullivan and applied to defamation suits brought by public figures or limited public figures against the media. How does "Actual Malice" remotely suggest that a reporter submitted "as fact" a situation that he/she knew was untrue or acted in reckless disregard of the truth (or falsity) of the circumstances reported (Example: Not enough sources or failure to stop by the "Fact Check" Department before running to the presses).
(9) Mentally translate all Latin terms you encounter during your studies by divining "substitute words" you conjure up as a study aid. This is for practice only, as your essay exam responses must always be sprinkled with the terms most commonly used in the Law. In explaining the Parol Evidence Rule the 'word "vary" is most commonly used, though "modify" means the same thing. You can write "vary (modify)", but if you don't think that will increase your scores, then don't do it.
(10) Combining short words that "Corral" Exceptions and Qualifications: Thus for the Article III legal term "Diversity", you can learn the term in the broad sense by always writing "CompleteDiversity75K+" [except on the Exam proper].
(11) The Bottom Line: Always think of the many ways you can learn the Law without resorting to fleeting memory- while realizing that several terms will have to be memorized. It makes no difference whether others understand the quirky ways you learn by using quirky words, so long as this method works for you. But, to repeat, this is a way of learning and not a way of formally writing your essay answers.
(12) The Professor is your Boss: Always do exactly what your professor wants you to do (or does). You may love (and actually understand and use) IRAC. But if your Professor prefers "CREAC", you had best use that organizational format. And there are always Professors that don't care what initials you use, so long as your essay response flows in a coherent manner.
(13) "Define" your Professor along with your Legal Jargon: Learn as much as you can from your Professor's former students about your Professor's routines, political philosophy, personality disorders [:-), preferred Exam formats, curved grades (if any), or whether your Professor gives bonus points for "accurate" participation in class discussions.
(14) Watch out for Study Groups: The fact a colleague knows the law does not mean he/she can teach it- a very different skill. And just who says that somebody in the group is smarter than you are?
(15) The Construct "maybe this" and "maybe that" is the best description of "Thinking like a Lawyer" and is the key to essay exam success. There are "maybe" facts (many of which may be missing), "maybe" particular laws (rules) that appear to "maybe" be on point, "maybe" different applications of "maybe" Law (Rules) to "maybe" Facts, and "maybe" this conclusion or "maybe" that one... or "maybe" another one. If the facts, law (rules), application of law to facts, and the ultimate conclusions were "black-letter", we could rid ourselves of many judges, juries, lawyers, and courthouses. We could just code a software program that will spit out the answer. Read Getting to Maybe: How to Excel on Law School Exams by Fishl and Paul (very inexpensive on Amazon) (not for deep study- more osmotic). Note that the innate or learned ability to consider the pros and cons of everything that might possibly come up in a trial (or in your studies or classes, particularly classes that are taught in the Socratic fashion) is jurisprudential- sometimes rhetorical. It is not a compilation of single words you have rotely memorized- a talent(?) better suited for Scrabble.
(16) Practice Tests: I totally agree with Max F. that taking millions of practice Essay/MEE and MC/MBE tests is the key to success in Law School and in passing the Bar Exam.
(17) The Desire to be Perfect: It is never attainable and anxiety-ridden. During your career, your client will not care if you are "perfect" so long as you win at trial or obtain the best possible deal during commercial negotiations. Even more practically, your client does not want to pay your invoice for hundreds of billable hours just so you can continue in your quest for perfection (some Associates in New York are billed out at $1,000 per hour). The Bar Exam does not test for perfection. "Good Enough" may be "good enough" during both the Exam and during your career (sacrilegious and sacre bleu?). Attorneys who "work smart" often have a smoother path to partnership than those who "work hard".
