“What is past is prologue.” - Robert Aitken
Restoration of essay question’s lead role in bar exam
The 2013 bar examination was notable for the revival of the essay question’s preeminent role. The examination comprised 80% essay questions and 20% multiple-choice questions (MCQs). This was a turn-around from the 2012 bar exam’s format of 60% MCQ and 40% essay question and the 2011 bar where the use of problem-type essay questions was entirely discontinued in favor of MCQs and performance tests.
The essay question’s resurgence had its genesis from a debate on the format of the bar examination, which was not settled with finality despite the adoption of the combined MCQ and performance-test format in the 2011 Bar. One side advocates the use of MCQs and performance tests as the new and progressive trend in bar examinations. The other side contends that the essay examination is still the gold standard in measuring the competencies of those aspiring for membership in the bar, especially the ability to think and argue like a lawyer. The 2013 bar examination was an indication that the pro-essay question faction has regained the upper hand.
The lead role of the essay question was fortified further in the 2014 bar examination. For instance in Remedial Law, there were only 8 MCQs having a weight of 1% each or a total weight of only 8%. This allocation was substantially the same in the other bar subjects.
Based on the trend of the past bar exams, we can predict with some confidence that the nominal role of MCQs in the bar will continue.
Importance of a logic-driven or argument-driven approach to bar preparation
The restoration of the essay question’s leading role is a clear indication of the importance given by the High Tribunal to testing the examinee’s ability to think and argue like a lawyer.
In 7 December 2012, the Supreme Court issued Bar Bulletin No. 1 for the guidance of the bar reviewees. The bulletin states that “[w]hether MCQ or essay, the questions shall be based on a given set of facts, presented as briefly but as clearly and completely as possible.”
The bulletin enumerates the basic elements of problem-solving or what we may call as competencies that the examiners shall particularly look for:
- Proper understanding and appreciation of the facts, particularly of the components or details that can be material in resolving the given problem.
- Appreciation of the applicable law or laws that may come into play.
- Recognition of the issue or issues posed.
- Resolution of the issues through the analysis and application of the law to the given facts.
The bulletin states that the examinee’s presentation and articulation of his or her answer shall also be given weight. In the Guidelines for the 2014 Bar, the Supreme Court said “that in a 5-point essay exam, the examiner can give credit even if the answer is not exactly correct but the answer is well-written and logical.”
These statements in the bulletin indicate that the examination will be argument-driven or logic-driven rather than conclusion-driven. This information is of capital importance since most law students have been taught in law school to be conclusion-driven rather than argument-driven and little if any time has been devoted to the proper presentation and articulation of one’s answers.
The examinee thus has to be trained in presenting his answer in such a way as to display to the examiner his familiarity with the basic elements of problem-solving.
Bar Bulletin No. 1 includes as one of the competencies the examiners are looking out for is the “recognition of the issue or issues posed.” Issue-recognition is a core competency which may be developed by a rigorous mock-bar and coaching program. Bar Bulletin No. 1 was a harbinger of a shift from the typical issue-poser question to an issue-spotter question. And indeed issue-spotter questions were liberally used in the 2013 bar examination.
In this regard, the bar candidate must know the difference between an issue-poser and an issue-spotter. The difference may be illustrated by giving an example of each. First let us give an example of an issue-spotter question.
Q Jose filed a petition for declaration of nullity of his marriage to Maria. During the trial, the lawyer of Jose offered Jose’s testimony on the contents of a psychiatrist’s report which made a finding that Maria was suffering from nymphomania and which report was in the hands of Jose.
a) If you were the lawyer for Maria, what objections if any can you raise to the offer of Jose’s testimony? Explain.
b) If you were the lawyer for Jose, how would you counter the objections of Maria? Explain.
c) If you were the judge, how would you rule on the objections? Explain.
A little difficult isn’t it? That’s because the issues and the applicable laws were not laid down on a silver platter to the examinee. It’s the examinee’s job to spot the issues and the applicable laws. The examinee is also asked to argue for both sides, a common feature of American bar exam questions.
Using the same factual setting, the above question can be modified to an issue-poser question as follows:
Q Jose filed a petition for declaration of nullity of his marriage to Maria. During the trial, the lawyer of Jose offered Jose’s testimony on the contents of a psychiatrist’s report which made a finding that Maria was suffering from nymphomania and which report was in the hands of Jose. Maria’s lawyer objected on the ground that the testimony would violate the physician-patient privilege.
If you were the judge, how would you rule on the objection? Explain.
The above essay question is less difficult to answer than the preceding one. This is because a narrow issue has been explicitly stated in the problem: Would the husband’s testimony on the contents of the psychiatric report violate the physician-patient privilege? Knowing the issue, the examinee would find it comparatively easy to determine the applicable law, i.e., Section 24(c), Rule 130 of the Rules of Court regarding the physician-patient privilege.
On the other hand, in the issue-spotter question, the examinee has to spot the three issues involved:
a) Would the husband’s testimony violate the marital disqualification rule?
b) Would the husband’s testimony violate the physician-patient privilege?
c) Would the husband’s testimony violate the hearsay rule?
Spotting these three issues is not easy if one has not been trained to do so. Issue-spotting is not a matter of good luck. There is a science to issue-spotting. Knowledge of issue-spotting techniques and training exercises to develop proficiency in using these techniques would be of immense help.
An example of an issue-poser question in the 2014 bar is Question No. 24.
Solomon and Faith got married in 2005. In 2010, Solomon contracted a second marriage with Hope. When Faith found out about the second marriage of Solomon and Hope, she filed a criminal case for bigamy before the Regional Trial Court (RTC) of Manila sometime in 2011.
Meanwhile, Solomon filed a petition for declaration of nullity of his first marriage with Faith in 2012, while the case for bigamy before the RTC of Manila is ongoing. Subsequently, Solomon filed a motion to suspend the proceedings in the bigamy case on the ground of prejudicial question. He asserts that the proceedings in the criminal case should be suspended because if his first marriage with Faith will be declared null and void, it will have the effect of exculpating him from the crime of bigamy. Decide.
The bar question presents the narrow issue of whether the petition for declaration of nullity of marriage presents a prejudicial question in the criminal case for bigamy.
Process or remedy-focused questions
A clear trend in the 2013 bar examination was the liberal use of open-ended questions which asked the examinee to give the appropriate legal steps, process, or remedy that is available to one of the parties. Examples of such type of questions are questions IV(C) and IV(D) in Remedial Law:
IV(C) Still in another case, this time for illegal possession of
dangerous drugs, the prosecution has rested but you saw from the records
that the illegal substance allegedly involved has not been identified by any
of the prosecution witnesses nor has it been the subject of any stipulation.
Should you now proceed posthaste to the presentation of defense
evidence or consider some other remedy? Explain the remedial steps you
propose to undertake.
IV(D) In one other case, an indigent mother seeks assistance for her
14-year old son who has been arrested and detained for malicious mischief.
Would an application for bail be the appropriate remedy or is there
another remedy available? Justify your chosen remedy and outline the
appropriate steps to take.
Open-ended, practical, and elucidative questions are not new. They have been used on occasions in previous bar examinations and were the norm in the 1983 bar examination where the examinee was placed in the position of a lawyer acting for or advising a client. Their liberal use in the 2013 bar examinations indicates an exigent need to train bar reviewees on how to analyze and answer these types of questions.
An example of a remedy-focused question in the 2014 bar exam is Question No. 20.
Tom Wallis filed with the Regional Trial Court (RTC) a Petition for Declaration of Nullity of his marriage with Debi Wallis on the ground of psychological incapacity of the latter. Before filing the petition, Tom Wallis had told Debi Wallis that he wanted the annulment of their marriage because he was already fed up with her irrational and eccentric behaviour. However, in the petition for declaration of nullity of marriage, the correct residential address of Debi Wallis was deliberately not alleged and instead, the residential address of their married son was stated. Summons was served by substituted service at the address stated in the petition. For failure to file an answer, Debi Wallis was declared in default and Tom Wallis presented evidence ex-parte. The RTC rendered judgment declaring the marriage null and void on the ground of psychological incapacity of Debi Wallis. Three (3) years after the RTC judgment was rendered, Debi Wallis got hold of a copy thereof and wanted to have the RTC judgment reversed and set aside.
If you are the lawyer of Debi Wallis, what judicial remedy or remedies will you take? Discuss and specify the ground or grounds for said remedy or remedies.
It cannot be gainsaid that these types of questions are quite challenging for a bar examinee who after all has yet to practice law. Special attention should therefore be paid to training and coaching the bar candidate to field these types of questions.
Know-and-recall MCQs continue to dominate MCQ portion
The 2013 bar examination was notable for the reduction of the MCQs’ role. In 2011 and in 2012, the MCQ portion was allocated a weight of 60% of the examinee’s grade. In 2013, however the weight of the MCQ portion was substantially reduced to 20%. In 2013, the number of MCQs was drastically cut from 100 MCQs in the 2011 and 2012 bar exams to only 10 to 20 MCQs, albeit the number of options was increased to five from four. In the 2014 bar, only 8 MCQs were asked with a total weight of only 8%.
Bar Bulletin No. 1 for the 2013 bar exam stated that “[w]hether MCQ or essay, the questions shall be based on a given set of facts, presented as briefly but as clearly and completely as possible.” This clearly implied that problem-type MCQs would be solely used. As it turned out, objective-type MCQs were still widely used for the 2013 and 2014 bar exams just as they had been in the 2011 and 2012 bar exams. For instance in the 2014 Remedial Law bar exam, out of the 8 MCQs, 5 were objective-type or know-and-recall MCQs. There were only 2 problem-type or read-and-analyze MCQs and one read-and-understand MCQ.
Importance of jurisprudence and statutory updates
The 2013 bar exam proved quite challenging in that the cut-off for Supreme Court decisions covered by the bar exam was up to 31 January 2013 of the current year. It even became tougher in the 2014 bar which provided that 31 March 2014 was the cut-off for laws and jurisprudence covered by the 2014 Bar Examinations.
And the Supreme Court meant what it said. For instance in the 2014 Remedial Law bar exam, Question No. 12 was based on a Supreme Court decision promulgated on 10 February 2014 (Republic v. Olaybar) while Question No. 15 was based on a Supreme Court decision promulgated on 25 March 2014 (People v. Go).
Needless to state these two cases could not have been taken up in law school by the 2014 bar candidates. Yet it would be foolhardy for the bar reviewee to undertake a case survey during the bar review. More or less a hundred cases are promulgated by the Supreme Court every month and a bar examinee would not have the time or experience to wade through all these decisions and choose the salient ones. It is thus imperative to attend a bar review program where seasoned bar reviewers are surveying recent cases and statutes in order to choose those which may form the basis of bar exam questions.
Importance of mock-bar and coaching program further underscored
The new developments in the bar examination format underscore further the need for a training and coaching program that involves not only a series of mock-bar examinations but also one-on-one coaching with a feedback mechanism. The mere taking of practice exams by a reviewee and the giving to him of the answers would be inadequate. The reviewee must have the benefit of feedback from an experienced and competent trainer and this can only be had under a program that provides for one-on-one and face-to-face interaction with a coach. Using a series of specially crafted mock bar exams, the coach would be able to diagnose the weaknesses and strengths of the reviewee and to monitor and guide his progress.
Individualized coaching is especially important for training the bar reviewee for the essay examination. Since the essay question requires the subjective judgment of the examiner, the examinee must be trained and honed in the proper manner of presenting his answer. Each examinee has his own strengths and weaknesses in approaching and answering essay questions and a “one size fits all” lecture or training session is not the proper approach. The comprehensive training program should especially train the examinee in the basic elements of problem-solving that the examiner is looking out for.
Practice is also very important. It is absurd to just lecture a bar examinee on bar methods and techniques and then expect the examinee to magically deploy these during the bar examination. That would be like lecturing a child on how to swim and then throwing him into a ten-foot-deep pool. The examinee should undergo a series of mock-bar exams where he can get the feel of applying the essay and MCQ tactics and strategies with guidance from his coach.
The Supreme Court itself recognized the salient role played by mock bars and bar exam coaching. The Guidelines for the 2014 Bar recommend thus:
A good practice for law schools/review classes to observe is to hold practice examination sessions with the Bar candidates, both on the Essay and the MCQ formats. In evaluating these practice exams, attention should be given to both the law and the Bar candidate's presentation and use of English. In many instances, incorrect English is more serious as a problem than the lack of precise knowledge of law, and has been the cause of high failure rates. [Emphases supplied]
Clearly discernible from the Guidelines is the need for someone to evaluate the practice exam. It is strongly advised that an experienced or certified bar exam coach be the one to undertake the evaluation, taking into account the obvious limitations of self-coaching.
Fine-tuning of coaching and training to read and answer essay questions
In light of the increased role of issue-spotter questions, Jurists fine-tuned its coaching program to further train the examinees in issue-spotting skills, including the use of fact-pattern recognition, embedded-rule recognition, and other issue-spotting and rule-spotting techniques. Issue-spotter questions are rarely if ever seldom asked in law school; hence the overwhelming majority of bar examinees have not had the benefit of any training and coaching on how to face them. With this in mind, Jurists has added to its data bank of issue-spotter questions for use in its training and coaching program and undertaken further training of its corps of coaches to respond to the latest changes.
Jurists has also fortified its essay question training program by adding more process and remedy-focused questions to its bank of mock-bar questions and devising the appropriate training modules to help the reviewee tackle these kinds of questions.
Reinforcing the MCQ training program
While some reports indicate the discontinuance of the use of MCQs, Jurists still made the appropriate changes and fine-tuning of its MCQ training program to prepare the reviewee just in case MCQs would still be used in the 2015 bar. Jurists has been at the forefront in the development and use of MCQ tactics and strategies which empowered its reviewees to outperform in the 2011-2013 bar exams.
Utmost preparation and training
As of the writing of this article (January 2015), the Supreme Court has not yet released the relevant bulletins or resolutions regarding the format of the bar exam. Jurists however has been proactive in its bar review and coaching program, fine-tuning and strengthening the same in order to respond to whatever format may be adopted by the Supreme Court, rather than just taking a passive stance of waiting first for the SC’s announcements and then reacting accordingly.
With the substantial use of issue-spotter questions and process and remedy-focused questions, there is a felt need for a bar review program which would properly train the reviewee, taking into account that these types of questions are not widely used in law schools. A traditional bar review program based exclusively or heavily on lectures and passive study without any or scant training and mechanism for feedback would ill prepare the examinee for the argument-driven and competencies-based bar exams and could lead to the bitter agony of defeat. On the other hand the examinee who backstops a rigorous study regime with a tested mock-bar and coaching program would significantly boost his chances of savouring the thrill of victory when he is granted leave by the High Court en banc to inscribe his or her name in the hallowed roll of attorneys.