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Washington Lawyer

Legal Spectator: Joe Nacrelli's Bar Review

From Washington Lawyer, June 2003

By Jacob A. Stein

spectatorRight after graduating from law school, I took Joe Nacrelli’s bar review course. Nacrelli was a short muscular man in his fifties. He looked like he might have been a prizefighter in his youth. He charged $150 for the course. He said if you took his course and attended class, he would give you good odds that you would pass.

On his bulletin board were letters from former students declaring that Joe Nacrelli made the difference. But for him they would have failed despite an Ivy League law school education. They were right. A significant number of Ivy Leaguers who did not take Nacrelli’s course did not pass the bar exam the first time around.

Nacrelli gave each student an outline of the bar exam subjects and the previous three years’ exam questions. He demonstrated to the class how his outlines provided the answers to the questions. He was uninterested in grand legal theories. He was a master mechanic. If this (the facts), then that (the textbook rule of law), and don’t waste time on why the that and not something else. You will have plenty of time for such jurisprudential considerations when you are in your law office waiting for the phone to ring.

His English occasionally faltered, his pronunciation of legal terms was questionable, but that meant nothing. He knew bar exams and how to give the answer the bar examiners wanted.

In those days the bar examiners were senior members of the bar appointed by the judges of the U.S. District Court. Each had his own subject, year after year. He drafted the questions and graded his papers.

I had never met these people called bar examiners. They were remote, austere, and learned guardians of the gate.

Nacrelli psychoanalyzed each of them from a distance. He had studied their whims, their peculiarities, their obsessions, their misunderstandings of the law, and the type of answers they liked. For instance, I recall that Nacrelli said that Francis Hill, the examiner in wills and estates, was a stickler for defining the difference between a personal representative and an executor. No matter what the question is, you must write a page describing the difference.

The bar exam kept to the traditional subjects such as real and personal property, evidence, civil procedure, domestic relations, contracts, wills and estates, criminal law and procedure, legal ethics, and constitutional law.

The week before the bar exam Nacrelli gave the class of 300 a rousing pep talk. He had an 85 percent pass rate, and we were honor bound to protect his average.

He said there were two ways to answer. Write everything you think you know about the subject raised by the question or write a short answer that hits the target. If you write a long answer, writing everything you think you know, you run the risk of demonstrating a broad ignorance of the law. If you aim for the target and miss, you have no backup position. Each student must make up his mind on this.

Many years later I was a bar examiner. What I recall most vividly from the experience is my fear of losing an exam paper. I never did, but I misplaced a few, and I could think of nothing else until I found them.

Before each exam the committee members exchanged the questions we had drafted. We decided that we should also pass around sample answers. Writing the questions was not easy, but writing the answers was even worse. We exposed to one another that we may be unable to answer our own questions.

I made lasting friendships on the committee. We had no disagreements of any kind over a six-year period. But for the committee assignment I would never have known Bill Gardner, a fine lawyer with the analytical mind every lawyer would like to have.

One of the questions that came before the committee was what to do with an exam paper written entirely in Chinese except for some Latin expression such as res ipsa loquitur. When we looked at our rules, we discovered we did not state that the responses to the questions must be written in English. There was a discussion of this and then Bill made a ruling. He said that since the questions were in English, an irrebuttable evidentiary presumption arises that the answers should be in English. We adopted Bill’s analysis and told the clerk to so advise the applicant.

If Joe Nacrelli returned today, he would find that the bar review game is a big, lucrative business, a $50-million-a-year business dominated by several national companies. Rather than charging $150, as Nacrelli did, the bar review people of today are charging in the $2,000 range.

What is the future of the bar exam? Good arguments can be made that bar exams serve no worthwhile purpose, and if there is to be a bar exam, it should not be state by state. There should be one national bar exam. The practice of law has become national and so should the bar exam.

My experience with the exam is that there are some who take the exam who have no idea of what the law is all about. I thought of writing a bar exam question suggesting such a student file a pro se lawsuit against the law school that took his money and didn’t teach him anything. Of course, the law school’s defense would be proof that the student never showed up for class.

A client would not be competently served by a new admittee to the bar just because he passed the bar exam. The law is so complicated and specialized these days that a client would be better served by retaining a specialist in the area of the law that is involved. There was a time when those gifted with a comprehensive knowledge of human behavior could pick up enough law to guide a businessman through a buy-and-sell agreement on Monday, try a civil suit on Wednesday, and work out a plea to a driving-while-drunk case on Friday. Those days, the days of the grand generalist, are over.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.