February 2007 California Bar Exam Debrief

First, let me say that it has been fantastic to have absolutely nothing to do for last the two days. I slept, caught up on world events, napped, surfed the net, read the newspaper, watched a beach sunset, and then slept some more. Last night, I went to Border's and picked up a copy of Chris Matthews's book Hardball. For those of you who are political junkies like me and always wondered what the heck the big deal is about the House and Senate cloakrooms, I can tell you that Matthews's book is a fascinating insider's look at the "greasy political underbelly" of D.C. Buy it.

As much as I love the law, seeing that Torts outline on the desk to my left as I write this blog post literally causes the bile in my stomach to rise. The lawyers (and takers) reading this post know exactly what I mean. All study materials will be packed away by day's end. But I digress.

The California Bar Exam is a 3-day affair, and tests the following subjects: Torts, Contracts, Civil Procedure, Criminal Law, Criminal Procedure, Real Property, Evidence, Constitutional Law, Community Property, Corporations, Trusts, Wills, and last, but by any means not least, Professional Responsibility. Out of these 13 subjects, the Examiners construct 6 essay questions. Some subjects are tested at every administration of the examination, in the multiple-choice section of the exam, and those subjects are: Torts, Contracts, Criminal Law/Procedure, Real Property, Evidence, and Constitutional Law. More on these later. Also included is a practical legal writing component. More on that later as well.

Golden Hall was the designated "laptop center" meaning that we were approved to use our computers to take the written portion of the exam on our computers there. For those of you from outside San Diego, Golden Hall is the largest convention meeting room at the San Diego Civic Center, but don't confuse it with the much larger, newer, and elegant San Diego Convention Center. Golden Hall is pretty nice inside, in a 70's sort of way, but it is nothing compared to the Convention Center. I presume that because the pool of applicants is smaller, the Civic Center is used for the February exam instead of the Convention Center.

In order to be able to use a laptop for the exam, the bar requires an additional $110 software license fee on top of the usual $500 test fee. The bar sends out a link to a website called "Softest," which is the third-party software developer licensing the software used for the test. After installing, you have to download answer files and go through a laptop registration and certification process during which your computer "talks" to the Bar website as you perform some of the software functions. Once installed and certified, your laptop is ready for use at the exam.

Softest opens a word processing application that permits the user to type their answers using MS Word style shortcuts and icons, but it is impossible to access any other area of the computer until Softest is exited. The software also automatically saves your work every minute to a special folder on your "C" drive using military-grade encryption technology. After the particular testing session is completed and Softest is exited, if you have a WiFI card in your machine, your answers begin to automatically upload to the Bar website. There are no floppy backups. We are instructed to leave Softest on our machines until the results are released because in the event of a problem, we will be required to travel to L.A. to have a technician retrieve the encrypted answer files from our machine for grading.

As we walked through the rain toward the throngs of soggy lawyer wannabes standing near the entrance to Golden Hall, my law school compatriot and close friend Darrel observed on the first day: "The vibe sure is different this time, isn't it? In July, the sun was shining, everyone was smiling and happy to reunite after having spent their summer studying, everybody was hugging and making lunch plans. Not in this time." It was an astute observation because the majority of the people that take the bar exam in February have taken it in the past; relatively few people sit in February for their first attempt. The "word on the street" is that the bar examiners know this, and that consequently the February exam is more difficult than the July administration.

We waited outside in the rain until finally, the doors were opened and hundreds of examinees lugging laptop cases and clutching their admittance cards began streaming into the lobby of Golden Hall. Once inside, it is necessary to unpack your computer, power cord, mouse, and keyboard, because those items, in addition to the clear ziplock bag containing your earplugs, pens, and highlighters, are the *only* things permitted in the examination room.

Walking into the examination room is, if you've never done it before, a stomach-churning experience at best. Hundreds of examinees scurry about, many with frantic looks on their faces, others sit stone-faced at their assigned seats. The anxiety in the room literally vibrates, and there is that particular low din of hundreds of people talking, mumbling, and whispering to themselves or each other, all in anticipation of the biggest test of their lives. Scores of clipboard-wielding proctors patrol the aisles. Most are friendly and will smile at you if you catch their eye, but there are also those that have, how shall I say it, a prison guard affect. As an examinee, I can tell you that the gravity of the situation is readily apparent upon entering that room.

I located my assigned seat, picked up the identification badge left there for me to wear at all times while in the examination room, and clipped it to my shirt. Luckily, this time I had two great people as my "neighbors," Steve to my left and Tory to my right. We chatted a bit and tried to relax and settle in for the long haul.

When I received my bar exam admittance card in the mail, it was a perforated portion of a computer-generated 81/2 x 11 document. When I got to my seat, I simply folded it "Z" style (as I had done before) and set it down on the table in front of me with my identification. But then our assigned proctor, Shirley, a rather grim-faced 70-something woman, came by to check my identification and badge. She picked up the sheet containing my admittance card, tore it off, handed me the remains, and very matter-of-factly said "You better get this out of here or do something with it because if I see it again I am going to have to write you up, and you don't want that." I quickly apologized and dashed to the back of the room to discard the offending contraband. Let's just say that this is probably not the preferred way to meet the person who will be scrutinizing your every move for the next three days. Ultimately, however, it became obvious that Shirley was actually a very nice, forgiving person. She always greeted us with a sincere "good morning," and left us with a grandmotherly "get some rest" each afternoon. Shirley was just a by-the-book kind of proctor. I never had the guts to introduce myself until I was on my way out of the exam on last day, and I am glad I did.

Then the announcements start. A very stern man, using what sounded to me to be a contrived, booming, "God-like" tone of voice, began, in an excruciatingly slow, tedious manner, going through the process of starting the laptops and launching the software. He then read off a list of items permitted in the room, e.g., computer, power cord, mouse, keyboard, non-digital timing device no larger than 4x4, two pillows, a foot rest, and earplugs. Following the list of permitted items, he began reciting the very long list of prohibited items ( e.g., cell phones, notes, Palm Pilots) and the penalty for any infraction: referral to the Committee of Bar Examiners for a Rule 12 violation. I have no idea what happens after receiving a Rule 12 referral, but I can tell you I definitely do not want to find out.

Finally, after probably 30 minutes of instructions, announcements, and warnings, God said "You will have 3 hours to complete this portion of the test. Begin." And we were off to the races.

Question 1 was a complicated "crossover" type question with four "calls," meaning that rather than being one question, it really required that you answer four separate sub-questions involving three different areas of the law; including Real Property (Easement in gross, landlord remedies for breach of lease), Torts (trespass and nuisance), and Contracts (assignment of contract rights and delegation of contract duties). This question was a bear, and I spent almost 70 minutes outlining and writing it, meaning that after that question I was down to approximately 55 minutes for each of the remaining two questions. It doesn't sound like a lot, but 8 minutes (indeed, 30 seconds) can make the difference between finishing completely or having to finish writing your final thought rather clumsily.

Question 2 was a Corporations/Professional Responsibility crossover involving promoter liability for pre-incorporation contracts, and fiduciary obligations of Directors, together with a lawyer conflict-of-interest twist. The big issue on this one was whether the shareholder agreement drafted by the lawyer (who represented the corporation, the directors, and the investors simultaneously), was valid. I would have expected the examiners to raise some specific issues to discuss on this type of corporations question, but instead, they simply asked "Was the shareholder agreement valid? Discuss." Yikes! I was not prepared for that and had a mini freak-out. After I calmed myself down and focused, I think I hit the main issues presented by the question, although it was probably not a stellar answer. To make matters worse, I spent 67 minutes slogging my way through it.

So by the time I got to Question 3, I had only 45 minutes left before God called "time." Luckily, it was a garden variety Murder/Insanity defense question, but like Question 1, it had four calls, so I had to work fast. I know murder very well (I know, that sounds bad) so I was really flying through the question. Unfortunately, I ran out of time before fully answering the last of the four calls, and had to wrap up before discussing all of the possible insanity defenses; and in fact, I was only able to get through M'Naughten. Not good, but I believe that the rest of the answer was pretty well analyzed and discussed. With any luck, some of the others in the room had similar timing issues and maybe I wasn't alone in not quite getting that last part done.

After the "five minutes remaining" and "thirty seconds remaining" warnings, God called out "Time! Immediately stop writing, anyone caught continuing to write after time has been called will be reported to the Committee of Bar Examiners." And thus ended the A.M. session of Day 1.

After waiting 20 minutes for the proctors to collect the testing materials, log them in, count them, and then recount them, we were dismissed for lunch. "God" instructed us to return at 1:30.

After lunch, we returned to our seats to find fingerprint forms and handwriting sample forms. God walked us through the process of providing out right index and middle finger prints, then in handwriting, we copied a paragraph consisting of what sounded like a diary entry of someone on a European vacation through Germany, Italy, Vienna, and London, as well as recounting their meeting of a man named "John" whose mailing address was "c/o Dr. C.W. Long." At the end of the trip, "Mary" was to meet them.

The P.M. session of Day 1 always consists of something the Committee of Bar Examiners dreamed up in the 80's called the Performance Test (PT). Since its introduction by California, several other states have now incorporated it as well. The PT is a three hour legal writing project. You are given a "File," a "Library," and scratch paper.

The File contains a mock memo from a fictitious supervising partner that gives you the instructions for the task at hand. These memos describe the client, the problem, what the partner has done to work the case up to where it is, and finally, what she wants you to do. Your task is usually to produce a "fact gathering memo," a "persuasive brief," or an "objective memo." The File also contains, typically, a transcript of a meeting the partner had with the client that has all of the background facts, as well as the thoughts, concerns, and goals of the client regarding the problem they have hired the firm to handle. Additionally, the File might also contain letters from opposing counsel, briefs filed by opposing counsel, documents related to the dispute, etc. The Library contains all of the law you are expected to use in drafting your memo to the partner. The Library includes statutes and case law.

When "Begin" is called, you have three hours to review the File and the Library, outline the facts and law, decide how to organize your answer, select a format to follow, review and decide which statutes and/or cases apply to each section of your discussion, and produce, as nearly as possible, a polished final product that fully addresses all of the issues raised in the partner memo and that appropriately incorporates the materials you have been given. Just to make it interesting, sometimes the Examiners will include statutes or even a case that either doesn't really apply, or applies in only a tangential way. Sometimes, the most important information contained in a case they have given you to analyze is buried in a footnote. But honestly, usually it is pretty straight-up and fair. You just have to keep your eyes peeled for any possible red herrings.

The first Performance Test, PT-A, was very interesting. The "partner memo" requested an persuasive brief concerning corporate fraud and in-house counsel collusion. We represented a start-up high-technology firm against a mega-company (think small component manufacturer v. Microsoft). The essence of the dispute arose from our client's receipt of a voicemail message at her office. "SmallCo" (our client) had been engaged for some weeks making limited disclosures of its patented telecommunications chip technology ("Toc-Tec") to the other firm, "BigCo," in order to try to start a production and marketing partnership. Prior to the disclosures, our client had insisted that the BigCo sign off on a non-disclosure agreement in which it promised review our client's technology in good faith, not make any copies, and not try to steal any of our key engineering employees.

Then our client received a voicemail from BigCo's Vice President of Marketing that she left while on speakerphone with their in-house counsel. The message said something like "the due diligence was moving right along but that they were waiting for the next disclosure. Please call me." Then there was a five second pause on the voicemail recording, then she could hear BigCo's Vice President start talking to BigCo's lawyer about how they planned to steal our client's technology and hire away as many of our key engineers as possible. They then discussed how the person they had "on the inside" of SmallCo was sending them way too much personnel information at once, that she had already sent them our client's complete patent disclosures (which was the most valuable thing SmallCo had), and that they were afraid they would get caught. They then discussed how to email the Mole a note asking her to "slow down," thank her for her cooperation, and tell her that she has been very helpful through the due diligence process. BigCo's in-house counsel then advised the Vice President to create a draft email so he could review it before it went out so that it would sound innocent and not raise any "red flags."

What had happened was that BigCo's Vice President failed to terminate the speakerphone when she finished leaving her message to our client, so the entire conspiratorial conversation was saved on our client's voicemail system, which basically laid out a carefully planned scheme designed to defraud our client out of its only asset - the Toc-Tec technology that it had tirelessly developed over the past two years and was just now trying to take to market. Of course the "mole," the person inside our client's office that was assisting BigCo with their scheme was immediately fired and told how we knew what she was up to, so the BigCo found out about their stupid mistake almost immediately.

BigCo's in-house counsel filed a Petition for a Preliminary Injunction claiming that the conversation recorded on voicemail was attorney/client privileged and asked the court to prevent us from using the transcript in any way or to disclose it, and also cited some authority holding that the court was not even permitted to review the transcript in ruling on the Petition. The gall!

Our project was to be an opposition to BigCo's Petition. I think I did a good job on it, although I spent probably more time than was necessary on the Statement of Facts, but I felt the facts were so critical and so juicy that they had to be laid out up front to hopefully curry some early sympathy from the judge. Of course, I had plenty of statutes and case law to use to support my arguments, and I think I did a pretty good job using most if not all of the materials. It was a fair test. I hope I was right about my approach to the statement of facts and got a decent score on it. God called "Time!", and Day 1 was history. Only 2 days left.

Day 2 of the California Bar Exam consists of 200 multiple-choice questions covering Torts, Contracts, Criminal Law, Real Property, Evidence, and Constitutional Law, although I did notice them slipping in a few that were really Wills, Community Property, and Civil Procedure questions in disguise. This portion is called the "Multistate Bar Examination" (MBE) because a central committee writes the questions and every state in the country that requires the MBE uses the same set of questions for their respective tests. We did 100 in the morning and 100 in the afternoon, with 3 hours for each session. I try to gauge my performance during the multiple choice portion by putting a question mark in the book next to each question I am unsure about. After I finish I count them and write hash marks in the back of the book. I had 12 hash marks in the morning and 27 in the afternoon. If I am right, that would be a respectable score for that portion of the exam. Let us hope I was close. And Day 2 was done.

On the morning of Day 3, I was feeling really tired, but I was excited about the fact that I could finally see the finish line.

All of that changed when I looked at Question 1. It was a doozie. It was a Wills/Community Property crossover that required some really specific rule knowledge. I was fine, I think, on the Community Property portion because I pretty sure I knew all of the rules cold, and I saw two issues being raised by the Wills aspect, but I could not for the life of me remember what the rules were. So I did what they tell you to do: take a deep breath, focus on the issues being raised...and guess. That's right, I made up rules that I thought were reasonable and hopefully correct and applied them to the facts authoritatively. Like my Dad told me, "That's okay Son, you gotta be able to dance, right? They wanna see you dance." And you know what, I think he's right. The only question is whether I did the moonwalk or the funky chicken. You can guess which I am hoping for. That question threw me a bit, and frankly I have no idea how I did on it, but the first thing I did at lunch was go to my car to look up the rules I had guessed on. To my pleasant surprise, I had stated and applied the first rule correctly, but I did not fare so well as to the second. I will just have to wait and see.

Question 2 was a Constitutional Law question concerning a municipal ordinance that sought to ban all tobacco advertising anywhere within 1000' of a school, pre-school, or any other place where children "traditionally congregate." I made a pretty straightforward 1st Amendment/Commercial Speech/Overbroad/Vague argument. Afterwards, while out in the lobby putting some stuff back into my laptop bag, I glanced over at the 20-something girl sitting on the floor next to me looking at her notes concerning Prior Restraint. And right then, mentally, I did a very good impression of Homer Simpson.

Question 3 was a strangely formatted evidence question in a criminal law context covering relevance, the best evidence rule, lay and expert opinion testimony, impeachment, hearsay (and a few exceptions of course), and it had a tinge of prosecutorial misconduct. I think I did okay on it, but again, when I got to that question, time was really at a premium and I had to wrap it up probably prematurely.

God called "Time!" and we were dismissed for lunch. Again, God admonished us to be back at 1:30. I was too tired to look at my notes this time while at my car. I just went to the Yardhouse and had a turkey sandwich instead. By this time I was really feeling the weight of fatigue.

We returned at 1:30. This time, however, our bar examinee badges looked different, the little metal clip had been removed and it just sat there on the desk. After the usual tedious oratorical walk-through going over the startup procedures, God advised us that we were to keep our ID badges and refer to the back of them for information concerning the release of the results. And despite the fact that we were about to start the final 3 hour section of the exam, he commanded us to take our computers home with us when we left.

The last section of the the California Bar Exam is the second Performance Test, PT-B. Darrel and I were concerned that given the rather straightforward nature of PT-A, that they might really let us have it with PT-B. We were, however, pleasantly surprised. It was a very straightforward request to review a Stock Option Plan, and to write an objective memorandum concerning the enforceability of the forfeiture and non-compete provisions contained in it. I think I did a really good job on this particular section. In addition to being (I hope) fairly well written, I think it looked polished and was well organized. If I am right about this, it will really help my score.

God called "Time!" and congratulated us for completing the February 2007 California Bar Examination. It was funny because I remember hearing (and participating in) a stadium-style cheer in July, but last Thursday, all I heard was a "golf clap" with some half-hearted cheers and no whistling. But nonetheless, it felt really good to be finished.

As for scoring, the Bar uses a complex formula of scaling, but the bottom line is that the essay/PT portions together are worth 65% and the MBE is worth 35%.

If you are still reading this, thanks for taking the time to do so. I wrote it for you, because I wanted to share a portion of what my personal bar exam experience was like, but I also wrote it for myself. If I passed this time, this will be something I can always look back to, a sort of snapshot of time. If not, and I wind up having to take it again, it will be a reminder of what I have endured, and it will hopefully motivate me to work even harder for the July exam.

Let's just hope I did the moonwalk.