The Great Change: Turning Cathy into a Lawyer

I just took the 200 question BarBri pre-test, the same pre-test I did last summer. I got a 117, which is pretty darn close to what I got last summer after having already done the same amount of practice questions previously (I've done 212 so far this time around). In fact, it's one point better. Which I suppose means I'm in good shape, although does seem a little weird given that (a) I've seen these questions before, and (b) I think got wrong ones that I had once gotten right, and vice versa. But it's all fixable, at this point, and brushing up on a few key areas should do the trick. Also, this year I mean to do more practice PMBR questions so I can get used to other question styles. But I am still fast (I did 200 questions in under 4 hours, not including a 30 min break halfway through), which is good. The hardest part is just managing to concentrate for the whole time. Unlike last summer, I have a lot more on my mind now and it's making it much harder to focus.

Especially since I keep finding the whole thing increasingly infuriating. It is insane that they construct a test based upon the illusory notion of legal certainty. Are the test makers really so unfamiliar with the American legal system? Ours is an adversarial one, where lawyers for each side always find a way to press an argument that advances their client's interests. Rarely is any legal situation such a slam dunk one way or the other. Barring something like Rule 11 sanctions that penalize a lawyer for truly frivolous claims made in bad faith, no statute, case, or indeed Constitution will ever be so clear on its face as to foreclose a good lawyer from finding a way to have the client's case viewed in a legally favorable light. That's what we're trained in law school to do.

Obviously in certain situations it may be a tougher row for the lawyer to hoe. But rarely will the law be as insurmountably absolute as the MBE imagines it to be. Perhaps it would be in a civil law system, where the law extends only as far as the language of the statute specifically articulates, but not in our common law system where statutes, cases, and indeed constitutions are always subject to some sort of interpretation. Therefore any test that boils down the American legal system into nuggets objective truth is going to be wrong, not the test-taker who rightfully fights that urge to oversimplify.

I don't just mean the test will be wrong in some metaphysical sense - it can be wrong specifically as well. Last summer, for instance, the MBE insisted that a search warrant could only be validly served when preceded by a knock on the door. The US Supreme Court, however, disagreed. Now, granted the Supreme Court weighed in subsequent to the composition of the test. And so it's possible that the MBE didn't ultimately count any question involving this "rule" since it had since been "changed."

But that's just it - the law does change, or at minimum gets constantly finessed. So to treat the law as a fixed set of discrete rules can never be right. Nor can we, as future lawyers, ever be either if our passing responses inherently ignore this reality.