273: Quick Tips -- Mastering the Bar Exam as an ESL or Foreign-Trained Student

We're the co-creators of the Law School Toolbox, the Bar Exam Toolbox, and the career-related website CareerDicta. Alison also runs The Girl's Guide to Law School. If you enjoy the show, please leave a review on your favorite listening app, and check out our sister podcast, the Law School Toolbox podcast. If you have you have any questions, don't hesitate to reach out to us. You can reach us via the contact form on BarExamToolbox.com, and we'd love to hear from you.

And with that, let's get started. Welcome back! Today, we're talking about how to overcome the unique challenges that ESL - or English as a Second Language - and foreign-trained attorneys face when studying for the bar exam. We all know that studying for the bar exam is difficult under the best of circumstances. Imagine going through the whole process with the added pressure of a language barrier. Or how about trying to learn all the material for the bar exam without the benefit of a JD?

Well, that's the reality for many ESL and foreign-trained students. If you're one of these students, this can undoubtedly feel like an uphill battle. But the good news is that while your challenges might be unique, most of the strategies for overcoming them are not. Most of our tips today are meant to streamline and simplify the study process - something that should appeal to all students.

But before we move on to those tips, let's start by identifying four main challenges you might face as an ESL or foreign-trained student. The first challenge is learning the material. Even if your English is so good that you have been working at a job reading and writing in English, or even attended an LLM program, you might find that it takes you much longer to work through the material than suggested by your study program.

If you are a foreign-trained student, you might struggle with the amount of unfamiliar law. JD students, even ESL JD students, will have already learned at least half or more of the law that's covered on the bar exam. As a foreign-trained student, you will be seeing most, if not all of this material for the very first time, even if you've got an LLM. Most LLM programs teach minimal law that is tested on the bar exam. The second challenge is memorizing the law you've learned.

Legal rule statements often contain unfamiliar terms of art and complicated sentence structures that can be hard to memorize if English is not your first language. This increases the chances of incorrect memorization or inaccurate recall on the exam. The third challenge is conveying your thoughts in short and concise statements that can be read easily by the grader. Unsurprisingly, non-native English speakers tend to make grammatical errors in their writing.

We can't be sure to what extent grammatical errors affect your score, but we know that minor errors are ignored. It seems that examiners will not specifically deduct points for grammatical errors. Examiners will deduct points, however, when the grammatical error makes the meaning of the sentence unclear or if they have a difficult time following your thought process. The fourth challenge is timing.

The time constraints of studying for and taking the bar exam are a challenge for everyone, but they can be especially problematic for ESL students. Reading slowly, typing slowly, translating or looking up words during your bar study, and other similar difficulties, can make everything take a lot longer than it would for a native English speaker. Okay, that's what you're dealing with. Now let's talk about what you can do about it.

Here are five concrete tips that can help you overcome these challenges. Our first tip is somewhat obvious, but often overlooked: Start early. You want to give yourself as much study time as possible, so the earlier you select and start a study program, the better. If you are currently completing your JD, don't wait until after commencement to get started, as tempting as that may be. Give yourself a few days or even a week to rest and recover from finals, but then get to it.

Depending on your final schedule, starting soon after your last final can buy you an additional one, two, or even three weeks of study time, which can be invaluable. Remember too, there are even things that can be done during your final semester if you want to get a head start. Sign up for an MBE program as early as March or work on performance tests.

If you are a foreign-trained student, try and give yourself as much study time as you possibly can, especially if you're going to be working and studying. Our second tip is to make sure you are not neglecting any components of the exam. When you have limited time to study and are also dealing with a language barrier, it can be tempting to try to game the exam by focusing on particular areas.

For example, you might spend most of your time on improving your essays, because that's the area that needs the most work. Or you might spend most of your time on MBE practice, because the writing section feels like a lost cause. Either of these approaches would be a mistake. To give yourself the best chance of passing the bar exam, it's critical that you get extensive practice in each of the three sections of the exam. Let's take a couple of minutes to talk about why practice is so important.

Let's start with the MBE. In most jurisdictions, the MBE is the single largest section of the exam. That makes the MBE incredibly important for all examinees, but it's especially important for ESL students that might struggle with the writing sections. Every additional point you score on the MBE is one less point you need to score on another section of the exam. Moreover, you should think of MBE practice like cross-training.

MBE practice not only improves your MBE score; it can also improve your performance on the essay section. After all, every MBE subject is also tested on the essay section, so when you practice MBE questions, you're developing proficiency in many of the same rules you will need for your essays. MBE practice also exposes you to many more issues and rules than essay practice alone. Each essay only tests a handful of rules, and it takes at least 45 minutes to write and review an essay for the UBE.

In that same 45 minutes, you could answer 15 to 20 MBE questions, each of which would require you to spot a different issue and apply a different rule. In terms of bang for your buck, you simply can't beat MBE practice. For that reason, we typically recommend that all students complete over 2000 MBE practice questions before the exam. Next, let's talk about the essay section.

In UBE jurisdictions, the essay section is known as the MEE, and consists of six essay questions, each covering one, or sometimes two subjects. Many ESL students find the essay section very challenging because of the need to write both quickly and precisely. For foreign-trained students, the primary challenge is memorizing and applying rules that they didn't work with in law school. In both cases, the best way to overcome these challenges is with repeated essay writing practice.

You might think you know a rule, but until you're forced to state the rule quickly and apply it thoroughly, you can't be sure you know it well enough for the essay section. It's also important that you get a feel for how long it takes you to write an essay. Part of practicing essay writing is figuring out what you can reasonably expect to get down on paper in the time allotted. One student might be able to write a 1000-word answer, while another might only be able to write a few hundred words.

If you are on the slower side, you will need to develop and practice strategies for doing more with less. Finally, there's the performance test. The performance test is probably the most dreaded part of the exam, and for good reason. The performance test requires you to digest and organize a lot of information very quickly, and then put together a professional work product based on that information.

The performance test would be a challenge for even a seasoned attorney, so it's no surprise that it gives ESL students so much trouble. As with the other exam sections, the key to success is repeated practice, but it's even more important in the context of the performance test. Unlike the other sections of the exam, there really is no cross-training you can do for the performance test, because it isn't testing your knowledge of substantive law.

No amount of watching lectures, studying an outline, or answering multiple-choice questions will help you improve on the performance test. And while doing practice essays can improve your writing generally, it won't adequately prepare you for the particular challenges and time constraints of the performance test. The only way to get comfortable with the performance test is repeated practice under timed conditions.

You should try to complete at least two performance tests per week during your study period, and make sure you are varying the type of performance test, so you get comfortable with different forms of legal writing. And if you want to get feedback on your performance tests, this is something our tutors are happy to help you with. Our third tip is to make sure you are prioritizing how and what you study. Not every issue on the bar exam is equally important.

Some issues are tested regularly and others have never been tested. Moreover, some rules are tested more heavily on the essay sections and others more heavily on the MBE. In an ideal world, you would have enough time to learn and memorize rules for every possible issue, but that is simply not realistic for most students. Almost all students need to do some prioritizing. It's just arguably more important for ESL and foreign-trained students. So, what does "prioritizing" mean exactly?

Well, the first step is finding out how often various rules are tested on the various parts of the exam. How well you need to know a given rule will depend on how often the rule is tested and on what part of the exam. To illustrate this point, let's take some examples from the UBE. On one end of the spectrum is the rule for diversity jurisdiction in civil procedure, which has been tested on over one third of MEE sections since 1995.

It is also very likely to appear on the MBE, because typically at least five questions involve jurisdiction or venue. That means you need to know the rule for diversity jurisdiction like the back of your hand. On the other end of the spectrum is the rule for shareholder management agreements in corporations, which is a very long, complicated, and unintuitive rule that has never been tested on the MEE, and will never be tested on the MBE, because Corporations is not one of the MBE subjects.

You could probably ignore this rule entirely. Most rules fall somewhere in the middle. And how you choose to prioritize will depend on several factors, including how much time you have to study, how much of the material you've covered in law school, and how much you struggle with the English language. But here's a good starting point: If a rule is heavily tested on the essay portion, you want to have both a deep understanding of how the rule operates, and a concise memorized rule statement.

If a rule is heavily tested on the multiple-choice portion but not the essay portion, you still want to have a deep understanding of how the rule operates, but you don't necessarily need to have a rule statement perfectly memorized. If a rule is occasionally tested on any part of the exam, you want to have a solid understanding of the rule, even if your knowledge is not perfect. That basically means you want to be able to apply the rule on an essay if it comes up.

But if you miss some of the nuance, it's not the end of the world. Finally, if a rule is rarely, if ever tested, you should only worry about it if you already have near perfect knowledge of the other categories of rules. Not sure how to figure out what is heavily tested? This is why we like SmartBarPrep outlines - they do the work for you. Our fourth tip is to make your rule statements as concise as possible.

As we talked about earlier, long and/or complicated rule statements are harder to learn and memorize. They also take longer to type, which can take up valuable time. For example, let's take a look at the rule for federal question jurisdiction. Here's one formulation of the rule from a popular commercial outline: "Federal question jurisdiction exists if a well-pleaded complaint alleges a claim that arises under, a) federal law; b) the U.S. Constitution; or c) United States treaties.

The plaintiff must be enforcing a federal right, and the federal question of law must be present on the face of the complaint. Raising a defense under a federal law is not sufficient to trigger federal question jurisdiction." Now, there's nothing inherently wrong with this rule. It's clear, accurate, and covers a number of possible sub-issues that could come up in an exam question, such as a defendant asserting a defense based on federal law. But our goal is to simplify things to save time.

So we should ask ourselves whether we could get away with a simpler rule. How about this instead: "Federal question jurisdiction exists if a plaintiff asserts a claim based on federal law." Well, this rule is clear, concise, and contains key parts of the rule, namely that the claim needs to be based on federal law, and that plaintiff's claim is determinative. Let's be clear - you still need to know what constitutes federal law, and that the plaintiff's assertion must be in the complaint.

But it's not necessary for those points to be part of your memorized rule statement. Simplifying your rules means fewer words to memorize and fewer words to type, which results in faster writing and fewer opportunities for language errors. Our fifth and final tip is to try to improve the clarity of your writing. While this can be difficult, there are several things you can do to improve.

First, if you have the time and the resources, consider getting some tutoring to improve your English grammar. The goal of this tutoring shouldn't be to make you write like a native speaker, but rather to correct the types of grammatical errors that could cost you points on the exam. If tutoring isn't an option, consider working through an online grammar course, such as the free courses offered by Khan Academy. Second, get as much feedback on your writing as possible from qualified sources.

If you are still in law school, your law school's legal writing center might be a great place to start. Third, immerse yourself in grammatically correct English as much as possible. Watching TV and movies can be helpful, but the language used isn't always grammatically correct. Reading newspapers, books, and other materials that have professional editors is a much better option for improving your grammar. Finally, when practicing for the exam, try to keep your writing as simple as possible.

The longer and more complex your sentences, the more likely you are to make mistakes. Use short sentences and try to keep the sentence to only one point. This will feel like bad writing, and it probably is from a stylistic standpoint, but there are no points given for style. All we care about here is clarity, and short choppy sentences are typically clearer and easier to understand. And with that, we are out of time.

If you enjoyed this episode of the Bar Exam Toolbox podcast, please take a second to leave a review and rating on your favorite listening app. We'd really appreciate it. And be sure to subscribe so you don't miss anything. If you have any questions or comments, please don't hesitate to reach out to myself or Alison at [email protected] or [email protected]. Or you can always contact us via our website contact form at BarExamToolbox.com. Thanks for listening, and we'll talk soon!