PREPARING FOR THE 2016 BAR EXAMINATIONS
“Know the enemy and know yourself, and you can fight battles with no danger of defeat.” – Sun Tzu, The Art of War
Preparing for the 2016 Bar Examination requires that bar reviewees should be cognizant of the recent trends and developments in the bar examination, to wit:
1. The restoration of the essay question’s lead role and the phase-out of MCQs.
2. Importance of a logic-driven or argument-driven approach to bar preparation.
3. Use of issue-spotter and remedy-focused questions.
4. Advancing the cut-off date for laws and jurisprudence to 31 March of the current bar-exam year.
5. Increasing time-pressure on the examinees.
6. Greater emphasis on international law and financial law, in the light of globalization and ASEAN integration.
Restoration of essay question’s lead role in bar exam and phase-out of MCQs
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% MCQs and 40% essay questions and the 2011 bar where the use of problem-type essay questions was entirely discontinued in favor of MCQs and performance tests.
The lead role of the essay question was further entrenched 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. In the 2015 bar examination, the use of MCQs was discontinued altogether.
Importance of a logic-driven or argument-driven approach to bar preparation
The restoration of the essay question’s leading role and the jettisoning of the MCQs 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 December 2012, the Supreme Court issued Bar Bulletin No. 1 for the guidance of the bar reviewees. The bulletin enumerates the basic elements of problem-solving or what we may call as competencies that the examiners shall particularly look for:
1. Proper understanding and appreciation of the facts, particularly of the components or details that can be material in resolving the given problem.
2. Appreciation of the applicable law or laws that may come into play.
3. Recognition of the issue or issues posed.
4. 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 guidelines for the 2013 to 2015 bars provide “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 bulletins and guidelines indicate that the examination will be argument-driven or logic-driven rather than conclusion-driven. This information is important 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.
Issue-spotting and issue-responsiveness
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.
The bar examinee must be trained to distinguish between the call and the core issue of a bar exam question. Likewise the examinee must also be trained to identify underlying or subsidiary issues.
There may be occasions when a question would propound two or more core issues. The bar examinee must be able to identify and respond to all core issues presented by the question. Issue-spotting is an important skill. A bar examinee must be responsive not only to the call but to the core or subsidiary issues of the problem.
Subquestion No. 1(a) in the 2015 remedial law bar examination illustrates the different types of issues that will confront a bar examinee:
I. Lender extended to Borrower a P100,000.00 loan covered by a promissory note. Later, Borrower obtained another P100,000.00 loan again covered by a promissory note. Still later, Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land valued at P500,000.00. Borrower defaulted on his payments when the loans matured. Despite demand to pay the P500,000.00 loan, Borrower refused to pay. Lender, applying the totality rule, filed against Borrower with the Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00.
a.) Did Lender correctly apply the totality rule and the rule on joinder of causes of action?
The call of subquestion 1(a) is an illustration of a call which is at the same time the legal issue: Did the Lender correctly apply the totality rule and the rule on joinder of causes of action? Otherwise put, the legal issue is immediately presented by the call to the examinee. The call gives a strong hint to the examinee that the applicable rule is Section 5, Rule 2 of the Rules of Court, particularly the totality rule under Section 5(a).
A reflexive answer on the part of the examinee would be to invoke Section 5(a) of Rule 2 and this answer would get adequate points. However note that the problem mentions that the third, P300,000 loan was secured by a real estate mortgage. This raises the subsidiary issue of whether joinder of causes of action would be proper in the light of Section 5(b) of Rule 2 which provides that “[t]he joinder shall not include special civil actions” and of Rule 68 which classifies foreclosure of a real estate mortgage as a special civil action.
Hence an answer which would impress the examiner by showing the examinee’s aptitude to identify issues would cite not only Section 5(a) but also Section 5(b) of Rule 2 and discuss their applicability or non-applicability as the case may be. The examinee should discuss that Section 5(b) is not applicable because the remedy availed of by the creditor was not foreclosure but specific performance. This answer would enable the examinee to obtain the maximum points from the question. It also has a strong psychological impact on the examiner by showing the examinee’s lawyer-like ability to spot issues.
Let us look at subquestion 1(a) of the 2015 remedial law bar exam:
I. Lender extended to Borrower a P100,000.00 loan covered by a promissory note. Later, Borrower obtained another P100,000.00 loan again covered by a promissory note. Still later, Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land valued at P500,000.00. Borrower defaulted on his payments when the loans matured. Despite demand to pay the P500,000.00 loan, Borrower refused to pay. Lender, applying the totality rule, filed against Borrower with the Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00.
a.) xxx
At the trial, Borrower’s lawyer, while cross-examining Lender, successfully elicited an admission from the latter that the two promissory notes have been paid. Thereafter, Borrower’s lawyer filed a motion to dismiss the case on the ground that as proven only P300,000.00 was the amount due to Lender and which claim is within the exclusive original jurisdiction of the Metropolitan Trial Court. He further argued that lack of jurisdiction over the subject matter can be raised at any stage of the proceedings.
b.) Should the court dismiss the case?
The call of subquestion 1(b) is couched in sweeping terms, that is, it simply asks what action the court should take (dismiss or not dismiss) but does not outright present a legal question or issue unlike the call in subquestion 1(a). Hence the examinee must determine the legal issue from the fact-setting of the problem. In such a case, the legal issue is termed as a core issue since it is embedded at the “core” of the question, that is, in the fact-setting. Subquestion 1(b) is also an example of an “issue spotter” question unlike subquestion 1(a) which is an “issue poser” question.
Looking at the facts of the problem, the examinee would determine that the legal issue presented is as follows: what determines subject-matter jurisdiction? The allegations of the complaint or the facts substantiated during the trial? The examinee would then know that the applicable rule is the jurisprudence that a court’s subject-matter jurisdiction is determined by the amount claimed as alleged in the complaint and not the amount substantiated during the trial. (Dionisio v. Sioson Puerto, 60 SCRA 471, 477 [1994]).
Again the examinee must be trained not to give a knee-jerk answer which would only discuss the Dionisio ruling. Note that Borrower’s lawyer had argued that lack of subject-matter jurisdiction can be raised at any stage of the proceedings. This argument must be traversed by the examinee. Many examinees would just cite the Dionisio rule without tackling the argument of Borrower’s lawyer.
Subquestion No. 4(a) of the 2015 remedial law bar reads as follows:
IV. Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to dismiss the complaint because Grieg, to whom he mortgaged the property as duly annotated in the TCT, was not impleaded as defendant.
a.) Should the complaint be dismissed?
The call of subquestion 4(a) also does not present an immediate legal issue. The perusal of the fact-pattern would reveal however the following core issue: Is Grieg an indispensable party and if he is, may the complaint may be dismissed on the ground of non-joinder of an indispensable party? The core issue would then be connected with the rule that non-joinder of an indispensable party is not a ground of a motion to dismiss. (Vesagas v. Court of Appeals, 371 SCRA 508 [2001]).
Process or remedy-focused questions
In the 2013 bar, open-ended questions, which asked the examinee to give the appropriate legal steps, process, or remedy that is available to one of the parties, were widely used. 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 extensive 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 remedial law 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.
While another example of such a question is subquestion 4(b) in the 2015 remedial law bar:
IV. Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to dismiss the complaint because Grieg, to whom he mortgaged the property as duly annotated in the TCT, was not impleaded as defendant.
a.) xxx
b.) If the case should proceed to trial without Grieg being impleaded as a party to the case, what is his remedy to protect his interest?
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.
Gradual phase-out of MCQs
The 2015 bar examination was notable for the elimination of the MCQ’s role. In the 2011 and 2012 bar exams, 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 7-8 MCQs were asked with a total weight of only 7%-8% and the standard four-option MCQ was reverted to.
The table below illustrates the vicissitudes of the bar exam format from 2010 to 2015.
| YEAR | ESSAY | MCQ |
| 2010 | 100% | 0% |
| 2011 | 40% | 60% |
| 2012 | 40% | 60% |
| 2013 | 80% | 20% |
| 2014 | 92%-93% | 7%-8% |
| 2015 | 100% | 0% |
Considering that there is no official announcement yet from the Supreme Court, it does not appear that MCQs would be asked in the 2016 bar.
Importance of jurisprudence and statutory updates
Traditionally the cut-off date for jurisprudence and law to be covered in the bar examination was 30 June of the previous year. The 2013 bar exam proved quite challenging in that the cut-off date was 31 January of the same year. It even became tougher in the 2014 and 2015 bars which provided that 31 March 2014 and 2015, respectively, were the cut-off dates.
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 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 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 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 bar exam 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 and 2015 Bar recommend thus:
Practice Exams
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 tackle 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 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. Jurists has also further fine-tuned its logical and analytical matrixes to help the bar examinee better confront the increased use of problem-type essay questions.
Time-management training
The great number of questions which an examinee has to tackle in four hours puts emphasis on the need for training on time-management. Thus simulated tests under the guidance and supervision of certified coaches has become imperative. The table below illustrates the time-pressure which the bar examinee has to work with. (Note: Items refer to question numbers while actual questions include the sub-questions. Thus an item containing two subquestions is counted as not one but two questions)
2015 BAR EXAMINATION, AVERAGE TIME NEEDED PER QUESTION
| SUBJECT | NO. OF ITEMS | NO. OF ACTUAL QUESTIONS | AVERAGE TIME PER QUESTION |
| POLITICAL LAW | 22 | 27 | 8 min 53 sec |
| LABOR LAW | 22 | 34 | 7 min |
| CIVIL LAW | 20 | 34 | 7 min |
| TAXATION | 22 | 42 | 5 min 43 sec |
| MERCANTILE LAW | 16 | 39 | 6 min 9 sec |
| CRIMINAL LAW | 22 | 35 | 6 min 51 sec |
| REMEDIAL LAW | 18 | 41 | 5 min 51 sec |
| LEGAL ETHICS | 24 | 36 | 6 min 40 sec |
The third column (No. of Actual Questions) would give a better picture of the challenge confronting the examinee. Let us look at the remedial law bar exam. At first blush, the number of items, which is 18, would appear to be manageable. If we count however the subquestions, there would actually be 41 questions all in all.
The fourth column gives the average time needed per question, obtained by dividing 240 minutes (4 hours) by the number of actual questions. The average time ranges from a high of 8 minutes and 53 seconds for the political law exam to a low of only 5 minutes and 43 seconds for taxation. For the critical remedial law exam which makes up 20% of the bar examinee’s grade, he or she has only 5 minutes and 51 seconds on average to answer a question.
This table is quite useful for a bar exam coach. Taking into account that 8 minutes and 53 seconds is not a whole lot of time for a single question (let’s not even talk about the 5 minutes and 43 seconds for taxation), the coachee must be trained to “think fast” using fact-pattern recognition and other exam tactics and strategies.
“Shock and awe” questions asked in 2015 bar
The 2015 Bar has gained notoriety for its trend of asking bar examinees to define some esoteric legal terms or to discuss the history of legal concepts which would challenge even the most avid lexicographers and legal historians. In Political Law, bar examinees were asked to discuss the “evolution” of jus sanguinis under the 1935, 1973, and 1987 Constitutions. In Labor Law, the word of the day was “equity of the incumbent,” an anachronism whose term of office had long ago expired. In Civil Law, they were asked to define “depecage.” In Commercial Law, the shock-and-awe word to define was “Jason Clause.” One cannot discount the posing of “shock and awe” questions in the bar exam. The bar reviewee must also be trained on how to react and to answer such kinds of questions.
Objective-type questions
While the great majority of the questions in the 2015 bar were problem-type essay questions, there was a liberal sprinkling of objective-type questions, which call for distinctions, definitions, and enumerations, as well as questions which ask for discussions or explanations. The bar examinee thus has to prepare and train for these types of questions. See for instance question no. 3 of the mercantile law bar exam:
III.
A. Discuss the three-fold character of a bill of lading. (3%)
B. What is a “Jason clause” in a charter party? (2%)
C. Are common carriers liable for injuries to passengers even if they have observed ordinary diligence and care? Explain. (2%)
Questions on International and Transnational Law
In the light of the increasing globalization and borderless nature of law, a growing emphasis on international and transnational law has been noticed in the bar examinations. In the 2015 political law exam, a problem-type question involving UNCLOS and another one asking for the definition of terms used in UNCLOS were asked. In the 2015 mercantile law exam, there were several questions involving banking, securities, intellectual property, and investment laws. These laws are becoming more important because of the ASEAN economic integration. Previously, bar review lecturers and even some law professors had treated these special laws as “fringe” laws which were rarely asked in the bar and merited only a brief and cursory discussion.
Utmost preparation and training
As of the writing of this article (1 January 2016), 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 only then reacting.
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 take the lawyer’s oath and to inscribe his or her name in the hallowed roll of attorneys.
-oOo-
January 2016