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Jul 22 2015

What I Learned About Lawyering When NY Lost My Bar Exam

Thirty years ago next week, the NY State Board of Law Examiners lost all 542 answer sheets for the Multi-State portion of the 1985 NY Bar Exam, representing the sheets from students who took the exam in the Pier 90 building. I was one of the unfortunate souls who had been assigned to take the test in that room. Every time Bar Exam season is in full swing -as it is now with the exam looming on July 28 and 29 – I am brought back to that horrible event in my life when for the first time ever I actually thought about killing a large group of people.

I mean after four years of college, three years of law school, seven weeks of Bar Prep classes and and two weeks of daily 15 hour cramming days to hear that just those four boxes from my test room were somehow missing from the Board’s offices at 270 Broadway can you blame me for having homicidal ideations? But in fact the experience of the following weeks and months were very influential on my career as a lawyer and left me with life lessons that still mean something to me today.

For those of you who are reading this that are not lawyers, a quick explanation of the Multi-State portion of the Bar. The Multi-State Bar Examination (MBE), which is given in 49 states (Louisiana being the lone exception)along with Guam, the District of Columbia and the Virgin Islands, is generally offered only twice a year: on the last Wednesdays in July and February. It’s a six hour exam consisting of 200 multiple choice questions in six areas of law: Constitutional Law, Contracts, Torts, Real Property, Evidence and Criminal Law & Procedure. The day before the MBE, NY test takers face another grueling six hour exam comprised mostly of six long essays on NY law. Asking which day is worse is like asking whether you want to get poked in the right eye or the left eye with a knitting needle.

So after the smoke and anger cleared – a little- it was time to figure out what was going to happen next. Frustrated law students were calling the Board daily and getting no answers. The Bar had been administered by the Board of Law Examiners since 1894 and something like this had never happened before. (It has also not happened again since by the way – I’m lucky like that). All we knew was this singular quote in the NY Times from John E. Holt-Harris Jr., one of the members of the Board of Law Examiners: ”There is no way to express how wretched we all feel about this thing.” Thanks Johnny boy, that helps a lot. They had no idea what to do with us. Many of us who were in NYC got together and selected a committee of three to deal with the Board and represent a large body of test takers. I was one of the three selected. I had some legal experience taking depositions and arguing motions as a law student working for the NYC Law Department, so I was almost a litigator in my eyes and my fellow victims’ eyes. So the first thing I had to do was gauge what the client wanted. Most of the group wanted a free pass – their position was that the Board should grade our essays and if we did sufficiently well on the essays, then they should pass us on the MBE automatically. That sounded good to me but I quickly realized it was not realistic for two reasons: (1) The MBE accounted for 40 percent of an applicant’s overall score. Because the passing grade was 660 on a scale of 1,000, it is effectively impossible to be admitted into practice in the state without taking that part. They would have to change the whole grading methodology. Not gonna happen; (2) If they did that for us, they would have to post armed guards next to every test room and use military personnel to guard the boxes at 270 Broadway because the test would be stolen every year otherwise. I learned from this how to (1) Give a client bad news – just write it out and tell it to them straight. Its easier to say if you just write it out in the best way possible and then just read it. Don’t ad lib it, don’t improvise, just write out the most thorough but least harsh way to say it and then just read it. (2) Manage client expectations. Clients often come to lawyers with problems for which they have already devised solutions – “He has to pay me back” “I want him to be forced to give me the business” but which often are not allowed by law. A lawyer’s job is to zealously represent his client’s interests -yes – but its also the lawyer’s job to explain to clients the limits of the law. I did however present the demand to the Board to appease the group and to be able to say that I at least tried to get what the consensus wanted.

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After getting a swift “No Way” from the Board, we had to regroup. We decided we were not going to bid against ourselves and demanded that the Board tell us their proposal asap. They got back to us that they would allow us to take the test when it was administered again in February. They explained that a new test would be costly to draft quicker than that and they couldn’t just give us the one we had already taken. That proposal was unacceptable because cost should not be an issue and it would also delay our admission to practice and we would be behind the 6,000 other test takers whose exams were not stolen. But at least we had our two settlement positions put forth so we could present the case to a mediator if need be. We pressed on and the Board decided to essentially split the difference – they would give us a new MBE in September and get the grades back to us in November at the same time as everyone else. This was unpalatable to lots of people but an old saying goes “A good settlement is when neither side is perfectly happy.” We had to recognize when we had as good a deal as we were ever gonna get. Many were sure they had forgotten all that had learned over the spring and summer. I had to assure many that we had prepared so well for so long, all that information was still there somewhere in the recesses of our brains. Joseph Pieper who ran a successful Bar Prep class (and still does)then came along and offered a free one day crash session on the MBE for all those who had to re-take the test even if you had not taken his course previously. It was a lifesaver because it reinforced that we indeed still recalled all that law. At the session, he handed out pencils and told us all to bring them down to the bar at the Roosevelt Hotel (where the re-take would be administered) where he would be waiting with a free drink for all. So I learned about being a stand-up guy and a little about marketing as well.

But the true learning experience was that sometimes things don’t go your way through no fault of your own. As a litigator it happens often. A witness gets funky on the stand and doesn’t say what you had expected them and prepped them to say. Documents you need and which have been under subpoena for months arrive incompletely or not at all. Judges don’t know the law or know your adversary too well to rule against them. When these things happen, you have to be resilient and not let them see you sweat. Crying into your legal pad and yelling “It’s not fair!” will not work. Save your complaining for the appeal and your spouse. You have to find an avenue around the obstacles. And the best way to do that is to rely on your preparation and knowledge. There is no such thing as over-preparing for trial or the Bar Exam. There is no such thing as a perfect trial. But knowing your stuff inside out makes you confident – it allows you to employ the best strategy possible under the circumstances.

So to all the Bar takers this year – including my son Steven and his girlfriend Rachel who are studying furiously for the exam as I write this, I wish you all good luck. Remember that you will never know as much law on so many subjects as you do right now. Remember that pass or fail you will have a long legal career ahead of you because you will dust yourselves off, get back on your feet, and forge ahead.

5 comments

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  1. auctionapril

    Great read Oscar. Glad you were one of the chosen 3. Were the exams actually lost or stolen? Was the mystery ever solved?

    1. Oscar Michelen

      They never told us what happened. But the boxes supposedly made it safe and sound to the Bar Examiners Office and then “poof!” no one could find the ones from my room.

  2. Roy

    Great article. I was also one of those unfortunates whose bar exam was stolen and I still recall what a horrible experience that was and how we all felt that the bar examiners didn’t provide a satisfactory solution to this situation. Moreover, they were never held accountable. However, I too learned that you have to persevere and move on and how you handle it is critical to your outlook on life and law. The ability to be resilient and move on is a critical life skill. Still, I didn’t need to learn it this way!

    1. Oscar Michelen

      Roy – I agree especially with the part about how no one ever told us what happened exactly and no one was held accountable

      1. auctionapril

        I’m very surprised by the handling of the situation. Also curious as to why an “investigation” was not forced upon the powers in charge. Seems to me this would be a pretty big scandal. I’m surprised a rebel didn’t rise to the surface. I can imagine everyone is ready to move out of that phase of becoming a practicing attorney. I am still curious as hell as to what happened. Someone knows whodunit…

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