The What, How, and When of What to Memorize for the Bar Exam

Bar exam memorization does not begin and end with the black-letter law itself. While the law is what you will be writing about, and therefore is rightfully the highest priority when it comes to memorization, you also want to have an understanding of how to write about the law you’re memorizing as well as when to write about it.

The What: Memorizing The Law

This one’s obvious. You’ll have a harder-than-usual time getting through the bar exam without memorizing the law. Effective memorization requires distilling the law you’re learning into clear, precise rule statements, complete with buzzwords, that you can drill over and over as the exam gets closer.

While the amount of law there is to memorize can feel overwhelming, you can also organize the law in terms of how frequently certain issues are tested (our Brainy Bar Bank can help you do this!) For instance, embezzlement has been tested once on the California bar exam since 2002, whereas first degree murder has been tested five times. So, while it’s great for you to know how to write about embezzlement off the top of your head, you won’t want to spend more time on learning that than you do on first degree murder.

Engaging in frequent writing practice early and often will not only reinforce memorization of the law, but it will also help you identify which law is the most frequently tested. This doesn’t guarantee against seeing curveballs on the exam. In fact, you are bound to have at least one moment of muddling through an issue that you can’t quite recall, or didn’t fully commit to memory during your studies. However, if enough of the exam feels familiar, that will more than compensate for anything you had to make up on the spot.

The How: Memorizing The Answer Structure

It’s not enough to know the law, however. I work with plenty of students who knew the law really well, as was demonstrated by their killer MBE scores, but they still didn’t pass. That’s because many students who know the law still struggle with where to start when it comes to answering a bar exam question.

For example, let’s look at strict products liability, which requires 1) a defendant who is a commercial supplier, 2) a product that reached the consumer without substantial alteration, 3) the product is defective (design defect, manufacturing defect, or failure to warn) 4) the consumer was making foreseeable use of the product, 5) there is actual and proximate cause and 6) the plaintiff suffers damages.

Perhaps in the facts you’re working with, design defect and manufacturing defect don’t apply, so you just write up that strict products liability requires that the consumer be adequately warned of any risks that accompany use. Even if your analysis of this one issue is brilliant, this will not be considered a complete answer. You need to write up each and every part of this rule, even if some of the elements will only be touched on briefly. So, when you see a strict products liability question, you will immediately jot down on your paper:

Commercial Supplier

No Substantial Alteration

Defective Product

• Design Defect
• Manufacturing Defect
• Inadequate Warning

Foreseeable Use

Causation

• Actual
• Proximate

Damages

This is the sort of answer structure that you want to be able to slap down on autopilot the moment you see it. Memorize this, and you won’t have to wonder where to start when it comes to a fact pattern that elicits this issue again.

Memorizing answer structures doesn’t only need to apply to singular issues either. Some bar exam answers are almost entirely identical over the use. For example, a common Business Associations structure will require you to 1) identify the company form, 2) assess some sort of action as happening with or without agency authority, 3) assess liability for that action either in terms of breach of duty or in suits by outside parties who may be seeking to pierce the corporate veil. This structure has been replicated with minor deviations over the years, so it can help you to notice these sorts of testing patterns. Again, this will happen through repeated practice.

In order to memorize answer structures, it is recommend that students make use of answer templates, or even use sample answers as guides for how to write up a particular issue. Students can then transcribe those templates for later memorization. That means taking some time to write out the headers and their accompanying rules without applying any facts. Although you will need to adapt these templates to nuances in any particular fact pattern, these answer structures will be totally reusable across different fact patterns.

The When: Memorizing The Legally Significant Facts

Finally, when you know the law and how to write about it, but have trouble recognizing when the facts are calling up a particular issue, memorizing fact triggers can be helpful. One thing you can do early on is keep an inventory of what kinds of facts triggered issues you missed in practice. So, if you were practicing the February 2012 California bar exam Evidence question, and missed writing about “Excited Utterance” because Vera made her statement “calmly,” then you would write “calmly” or, more generally, “tone description” in your Evidence Facts inventory so that you don’t miss the issue again.

You’ll often find that a world of issues can emerge from a single fact, so it would be worthwhile to keep track of how these facts operate, particularly when they appear over and over throughout multiple bar exams.

Those are the Whats, Hows, and Whens of memorization. Applying these three levels of memorization, you’ll not only know the law, but you’ll also know how and when to show the bar examiners that you’ve totally got this.