“What is past is prologue.” - Robert Aitken
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 examination’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 competence of those aspiring for membership in the bar. The 2013 bar examination is an indication that the pro-essay question faction has regained the upper hand. What is more, reports have it that the use of MCQs will be entirely discontinued in the 2014 bar examination.
Issue-posers and Issue-spotters
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 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. 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.
These statements in the bulletin indicate that the examination will be argument-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.
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.
The difference between an issue-poser and an issue-spotter is 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.
A perusal of the 2013 bar exam questions shows that the essay questions involve both issue-posers and issue-spotters with a marked predilection for the latter. Question no. 9 in the Remedial Law bar examination is an example of an issue-spotter question:
For over a year, Nenita had been estranged from her husband Walter because of the latter’s suspicion that she was having an affair with Vladimir, a barangay kagawad who lived in nearby Mandaluyong. Nenita lived in the meantime with her sister in Makati. One day, the house of Nenita’s sister inexplicably burned almost to the ground. Nenita and her sister were caught inside the house but Nenita survived as she fled in time, while her sister tried to save belongings and was caught inside when the house collapsed.
As she was running away from the burning house, Nenita was surprised to see her husband also running away from the scene. Dr. Carlos, Walter’s psychiatrist who lived near the burned house and whom Walter medically consulted after the fire, also saw Walter in the vicinity some minutes before the fire. Coincidentally, Fr. Platino, the parish priest who regularly hears Walter’s confession and who heard it after the fire, also encountered him not too far away from the burned house.
Walter was charged with arson and at his trial, the prosecution moved to introduce the testimonies of Nenita, the doctor and the priest-confessor, who all saw Walter at the vicinity of the fire at about the time of the fire.
(A) May the testimony of Nenita be allowed over the objection of Walter?
(B) May the testimony of Dr. Carlos, Walter’s psychiatrist, be allowed over Walter’s objection?
(C) May the testimony of Fr. Platino, the priest-confessor, be allowed over Walter’s objection?
The examinee is required to deploy his stock-knowledge of evidence in order to spot a plausible ground for objection. The question would have been an issue-poser if the relevant ground of objection was specified and the examinee asked to rule on the same.
An example of an issue-poser question in the 2013 bar is question no. 1(A) in Remedial Law.
Alfie Bravo filed with the Regional Trial Court of Caloocan, a complaint for a sum of money against Charlie Delta. The claim is for Php1.5 Million. The complaint alleges that Charlie borrowed the amount from Alfie and duly executed a promissory note as evidence of the loan. Charlie’s office secretary, Esther, received the summons at Charlie’s office.
Charlie failed to file an answer within the required period, and Alfie moved to declare Charlie in default and to be allowed to present evidence ex parte. Ten days later, Charlie filed his verified answer, raising the defense of full payment with interest.
I(A) Was there proper and valid service of summons on Charlie?
Here a narrow issue was posed: the propriety and validity of the service of summons on Charlie.
Process, elucidative, and practical questions
A clear trend in the 2013 bar examination was the liberal use of open-ended questions which asked the examinee to state the appropriate legal steps or process, to elucidate, or to give the appropriate legal steps or remedies that should be undertaken in favor of 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.
Changes in the MCQ portion of the bar
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.
Bar Bulletin No. 1 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 as they had been in the 2011 and 2012 bar examinations. See for instance MCQ No. 14 in the Remedial Law bar examination.
XIV. When may a party file a second motion for reconsideration of a final
judgment or final order?
(A) At anytime within 15 days from notice of denial of the first motion for reconsideration.
(B) Only in the presence of extraordinarily persuasive reasons and only after obtaining express leave from the ruling court.
(C) A party is not allowed to file a second motion for reconsideration of a final judgment or final order.
(D) A party is allowed as a matter of right to file a second motion for reconsideration of a judgment or final order.
(E) None of the above.
Importance of mock-bar and coaching program further underscored
The new developments in the bar examination format further underscore 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.
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, elucidative, and practical 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 2014 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 and 2012 bar exams.
Utmost preparation and training
As of the writing of this article (January 2014), 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, elucidative, and practical 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 new-fangled bar exams. On the other hand the examinee who backstops a rigorous study regime with a tested mock-bar and coaching program which addresses the recent changes in the bar exam format would be in the inside track in the race for admission to the hallowed ranks of the Philippine bar.