Congratulations on your new-found status as a provisional Bar licensee! You can practice law under a licensed attorney. Are you ready to practice law under your attorney supervisor? Will you be ready to take the Bar when you take it in the next couple of years? Prepare now.
You can prepare for your provisional practice under an attorney supervisor before you even start your new position. In fact, you can showcase your writing skills to land a job with an attorney supervisor. Or, if you have a position lined up, you can begin your provisional licensee practice at a high level before you arrive at the office.
Resulting from the complications due to the COVID-19, in July 2020, the California Supreme Court offered guidance to the California State Bar stating:
[I]n order to mitigate these hardships faced by graduates while fulfilling the responsibility to protect the public by ensuring that persons engaged in the practice of law are minimally competent to do so, the court directs the State Bar to implement, as soon as possible, a temporary supervised provisional licensure program — a limited license to practice specified areas of law under the supervision of a licensed attorney.
It is this author’s understanding that a number of other states are also creating supervised provisional Bar licensee programs. Not only is California implementing this new program, it delayed the Bar, which was set for July, then moved to October 2020 (taken remotely). And, California lowered the score needed to pass the Bar.
This blog addresses:
- Law school did not prepare you for the actual practice of law, but you can still prepare on your own before you walk through the doors of your practice, where you will work as a provisional attorney licensee.
- Although you may have written an appellate brief, you have not written letters, memos, motions, briefs, and other legal documents for the real world. You can learn to write powerfully, in sound paragraphs, using IRAC, and in plain English. And, you can learn now.
- Here are five tips for preparing for the Bar when you choose to take it over the next two years (or whichever period your State is allowing).
I have taught or mentored hundreds of students who have completed pre-law courses or were law students or new lawyers.
Below are tips for success in a new practice as a provisional Bar licensee, as well as steps that you should take to ready yourself for the Bar.
1. Law school did not prepare you for the actual practice of law, but you can still prepare on your own before you walk through the doors of your practice, where you will work as a provisional attorney licensee.
As difficult as it is to hear, law school did not prepare you to practice law.[1] In fact, law schools do not teach new lawyers how to practice law. New law school graduates are simply not “practice-ready.”[2] One commentator went so far as to say that law schools are flooding the market with incompetent lawyers.[3] Preeminent legal commentator, Bryan A. Garner, simply states “lawyers don’t write well and have no clue that they don’t.”[4] According to Garner, lawyers “may only recognize their previous unskillfulness once they gain these skills.” He further notes that this is particularly true for newly-licensed lawyers.[5] Why the poor writing? According to Garner, the blame falls mostly on law schools. Professors provide students with “poorly-written, legalese-riddled opinions that read like over-the-top . . . parodies of stiffness and hyperformality.”[6] And, law professors offer little if any feedback on writing in exams or assignments.[7] Junior lawyers are neophytes, Garner believes, and are ready for an apprenticeship with a good mentor (may they be fortunate enough to find one) and not for the practice of law.[8]
Although some law schools may offer a clinic or two to prepare students for real-world practice, this training is not enough. Many law schools do not actually require any training prior to a student’s seeking State Bar licensure.[9] Students come to law school to be trained as lawyers, and not as academics.[10] But, law schools trains students as academics. One commentator criticized the academic community for its overemphasis on impractical scholarship and its unwillingness to teach students about the reality of law practice.”[11] Why is it that a first-year law student drafts an appellate brief? Why does that student participate in a moot court on that brief? How many new lawyers will write appellate briefs right away? How many will snag the plum oral argument in the court of appeals on that brief? Law school should focus upon the practical motions, memos, and letters that most new lawyers will write every day. At the small firm level, the skill set needed to practice takes years to develop and refine.[12] This is particularly disheartening with the recognition that the majority of lawyers in private practice are in solo practices or small firms.[13] The bottom line is: there is a need for competent new lawyers who can enter practice, thinking and writing critically; yet, there is a noted lack of these skills in modern law-school graduates.[14] Unfortunately, new associates often find themselves ill-prepared for the rigorous practice and demands at their law firms.[15]
There have been calls to “ditch” the entire third year of law school, and make it more like a medical school with rotations through different areas of practice.[16] One commentator suggests that there should be higher degrees of clinical and practical concentrations as one moves closer to practice.[17] Another author believes that law schools should integrate practical and doctrinal training throughout the curriculum.[18] Specifically, the last commentator states that professors should elevate skills training to a position of greater parity with doctrinal classes—and frankly, these changes are long past due. [19]
2. Although you may have written an appellate brief, you have not written letters, memos, motions, briefs, and other legal documents for the real world. You can learn to write powerfully, in sound paragraphs, using IRAC, and in plain English. And, you can learn now.
Become a clear thinker and clear writer, and learn the writing skills of the trade. “The dependence of good writing on good thinking cannot be overemphasized.”[20] Stated slightly differently, students who write unclearly think unclearly.[21] Law is essentially a trade and is based upon flawless writing, logical reasoning, and persuasive argumentation.[22] Not coincidentally, these three skills make up the trivium, the classical and medieval curriculum of grammar, logic, and rhetoric, which formed the basis of legal education for centuries.[23]
How can provisional attorney licensees develop logic and writing skills in which they may be deficient? And quickly? Consider taking a legal writing course. There are many good legal writing courses available online.
My course, Legal Writing Launch, is a great choice because the course includes the option for live instructor feedback, is self-paced, and is available on-line with easy-to-use educational technology. The website is LegalWritingLaunch.com. One commentator noted that students should harness educational technologies to develop some of the basic skills necessary for law school.[24] Legal Writing Launch is a legal writing intensive course where students will learn to draft power-packed paragraphs™ using the legal reasoning structure taught in law school—Issue, Rule, Analysis, and Conclusion, commonly known as IRAC. Another commentator has discussed the value of the Core Grammar for Lawyers on-line platform to prepare students for their first year of law school.[25] Legal Writing Launch offers Core Grammar as part of its focus on ensuring that pre-law students, law students, provisional attorney licensees, and lawyers know the fundamentals of grammar.
3. Here are five tips for preparing for the Bar when you choose to take it over the next two years (or whichever period your State is allowing).
- Take some time off.
- Improve self-confidence.
- Design your Bar study plan.
- Decide when you will memorize all that substantive law.
- Take a legal writing course.
Take some time off
It is critical that you are fresh when you sit for the Bar. You must be in the positive space necessary to take the Bar. You should be present, focused, and relaxed enough to concentrate on the actual exam. So, take a break. Take some time away from the rigorous studying that your bar review course will require. Go to the gym, have lunch with your family, watch a movie during the day. Do not take off too much time, but just enough so that you are refreshed when you head back to your studies.
Improve self-confidence
Now and when you begin studying again, work on your mindset and confidence. In research on Bar exam preparation, the author in The Incorporation of Elements of Bar Exam Preparation in Legal Education, concluded that applicants not only fail because of a lack of skills but also due to their mindset.[26]
The article states:
Applicants fail because of a lack of will. The term ‘will’ can be defined broadly. It certainly includes lack of motivation, or drive[.] [Lack of will] also include[s] other psychological impediments to success: lack of discipline, lack of resilience, and, lack of persistence.[27]
How can you develop your confidence? Every day think of five things that you did well. When you do study for the Bar, give yourself credit for every task that you perform well.
Design your Bar study plan
There is now time (as of the July drafting of this blog)—actually months—before an October 2020 Bar. Draft a detailed plan estimating when you will study what and how. The authors in Yes We Can, Pass the Bar, noted that Bar preparation experts found that those who failed the bar exam also “fail[ed] to plan in advance for the bar preparation period.”[27] Be sure to build into your plan: studying the specific subject matter, and practicing the multi-state questions, essays, and performance components. If you are taking an established Bar Review Course (e.g., Barbri, BarMax), work with their draft schedules. Take time off from studying when you are doing your actual Bar preparation (e.g., Sundays). If you plan to retain a Bar exam tutor, find the right person now, and run your schedule and game plan by that professional.
Decide when you will memorize all that substantive law
There is no avoiding it—you must have all that substantive law at your mental fingertips (in your head) when you take the Bar. Researchers have noted the need for examinees “to engage in specific memorization activities (i.e., memorization, practice, review).”[28] Work into your Bar study schedule when you will memorize all this substantive information, and how you will do this (e.g., a detailed outline, flashcards, etc.) Remember to use the memorization techniques that have worked for you in the past. For instance, what worked for me was to prepare a mini outline of each substantive course (e.g., contracts) from a larger outline. Then, I would memorize that mini outline. Because I am and was a visual learner, I could literally see my mini outline in my head during the Bar. I have heard of some Bar students making an outline of their mini outline and memorizing that. The point is to compress all of the subject matter in your brain, and find a quick way to access it. Some Bar-takers, during the Bar, note the topic (e.g., Remedies) and write down key words to trigger the necessary elements. They do this before they even start drafting the actual analysis. In the memorization phase of your Bar preparation, find a memory-triggering technique that works for you.
Take a legal writing course
Researchers have concluded that a failure to pass the Bar is often caused by the Bar examinee’s failure to communicate in writing or a lack of reasoning and/or writing skills.[29] As mentioned above, consider taking a legal writing course. My course, Legal Writing Launch, is a great option, and is available at https://legalwritinglaunch.com. You might require assistance with writing essays or the performance section of the Bar, and Legal Writing Launch could help. (View the introductory video, and access the actual contents of the course under any of the course levels—Basic Course, Assignment Editing, or Weekly Zoom Meeting [includes Assignment Editing].)
Billionaire investor Warren Buffet states, “[b]y far the best investment you can make is in yourself.” [30] Buffett added that developing one’s communication skills—both in writing and in-person—”can increase [one’s] value by at least fifty percent.” [31]
[1] Dolan, Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession (Opportunity Lost) (2007) From the Selected Works of James M. Dolin, 2, https://works.bepress.com/jason_dolin/1/
[2] Flanagan, The Kids Aren’t Alright: Rethinking the Law Students Skills Deficit (Kids Aren’t Alright) (2015) Brigham Young Univ. Educ. And Law Journal 136, 181. https://scholarship.law.umassd.edu/fac_pubs/90/
[3] Opportunity Lost, supra, at p. 1.
[4] Garner, Why Lawyers Can’t Write (Why Lawyers Can’t Write) 1, 1. https://www.abajournal.com/magazine/article/why_lawyers_cant_write/
[5] Why Lawyers Can’t Write, supra, at p. 2.
[6] Why Lawyers Can’t Write, supra, at p. 2.
[7] Why Lawyers Can’t Write, supra, at p. 2.
[8] Why Lawyers Can’t Write, supra, at p. 3.
[9] Opportunity Lost, supra, at p. 9.
[10] Opportunity Lost, supra, at p. 9.
[11] Uphoff, Clark, & Monahan, Preparing the New Law Graduate to Practice Law: A View from the Trenches (Preparing the New Law Graduate) (1997) University of Missouri School of Law Scholarship Repository 380, 387. https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1383&context=facpubs
[12] Opportunity Lost, supra, at p. 13.
[13] Preparing the New Law Graduate, supra, at p. 409.
[14] Viatar, Adams & Reese, Legal Education’s Perfect Storm: Law Students’ Poor Writing and Legal Analysis Skills Collide with Dismal Employment Prospects, Creating the Urge to Reconfigure the First-Year Curriculum (Legal Education’s Perfect Storm) (2012) 61 Cath. U. L Rev. 735, 742, n. 26. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142812#:~:text=Legal%20Education%27s%20Perfect%20Storm%3A%20Law%20Students%27%20Poor%20Writing,the%20Urgent%20Need%20to%20Reconfigure%20the%20First-Year%20Curriculum.
[15] Legal Education’s Perfect Storm, supra, at p. 4.
[16] Opportunity Lost, supra, at p. 17.
[17] Opportunity Lost, supra, at p. 18.
[18] Opportunity Lost, supra, at p. 18.
[19] Opportunity Lost, supra, at p. 18.
[20] Legal Education’s Perfect Storm, supra, at p. 741.
[21] Legal Education’s Perfect Storm, supra, at p. 742, n. 26.
[22] Legal Education’s Perfect Storm, supra, at pp. 755-756.
[23] Legal Education’s Perfect Storm, supra, at pp. 755-756.
[24] Kids Aren’t Alright, supra, at p. 182.
[25] Kids Aren’t Alright, supra, at p. 182 and https://www.coregrammarforlawyers.com/
[26] Reeves, E. P., Teaching to the Test: The Incorporation of Elements of Bar Exam Preparation in Legal Education (Teaching to the Test), Journal of Legal Education (2015), p. 648. https://scholarship.richmond.edu/law-faculty-publications/1253/.
[27] Teaching to the Test, supra, at p. 648.
[28] Alphran, D., Washington, T., & Eagan, V., Yes We Can, Pass The Bar (Yes We Can, Pass the Bar), University of the District of Columbia, David A. Clarke School of Law Bar Passage Initiatives And Bar Pass Rates – From The Titanic To The Queen Mary!*, University of the District of Columbia Law Review, Vol. 14, Issue 1, Art. 3 (2011) 26. https://readingroom.law.gsu.edu/faculty_pub/1745/.
[29] Yes We Can, Pass The Bar, supra, at pp. 32-33.
[30] Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, Inc.com (Jan. 2021).
https://www.inc.com/marcel-schwantes/warren-buffett-says-this-1-investment-decision-will-by-far-be-best-youll-ever-make.html#:~:text=In%20a%202019%20interview%20with,by%20at%20least%2050%20percent.%22
[31] Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, supra.
https://www.inc.com/marcel-schwantes/warren-buffett-says-this-1-investment-decision-will-by-far-be-best-youll-ever-make.html#:~:text=In%20a%202019%20interview%20with,by%20at%20least%2050%20percent.%22
