PREPARING FOR THE 2017 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 2017 Bar Examination requires that bar reviewees should be cognizant of the recent trends and developments in the bar examination, to wit:
1. The continuance 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. Setting back the cut-off date for laws and jurisprudence to 30 June of the prior year (2016).
5. Increased use of objective-type questions.
6. Salient changes made in the bar exam coverage.
7. Return of legal forms or practical exercises
Continuance 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 2016 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 or immediate issue and the core or underlying issue of a bar exam question.
Let us look at Question No. 4 of the 2016 remedial law bar exam:
Eduardo, a resident of the City of Manila, filed before the Regional Trial Court (RTC) of Manila a complaint for the annulment of a Deed of Real Estate Mortgage he signed in favor of Galaxy Bank (Galaxy), and the consequent foreclosure and auction sale of his mortgaged Makati property. Galaxy filed a Motion to Dismiss on the ground of improper venue alleging that the complaint should be filed with the RTC of Makati since the complaint involves the ownership and possession of Eduardo’s lot. Resolve the motion with reasons.
The call (or the immediate issue) is the issue which is apparent from the text of the problem. In the above question the call or immediate issue, rephrased, is: Should the motion to dismiss the complaint for annulment of REM on the ground of improper venue be granted or denied?
On the other hand, the core issue or the underlying issue is that which is not apparent from the text of the problem but whose resolution is essential in reaching the correct conclusion to the problem.
In the problem above, the core or underlying issue may be stated as follows: Is the action for annulment of the REM a personal or a real action? If it is a personal action, then the motion to dismiss should be denied since the venue may be laid in the place where the plaintiff resides. On the other hand, if the action is a real one, then the motion to dismiss should be granted since the venue should be laid in the place where the real property is situated.
Let us look at Subquestion No. 4(a) of the 2015 remedial law bar exam:
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 cursory reading of the question readily shows the immediate issue: Should the complaint for cancellation of title be dismissed for failure to implead the mortgagee? A perusal of the question then leads to the unraveling of the core or underlying issue: Should the complaint be dismissed for failure to implead an indispensable party?
Identifying the core or underlying issue requires a familiarity with the legal rules and proper training and coaching in issue-spotting under a certified bar exam coach.
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.
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?
as well as Question No. 15 of the 2016 remedial law bar:
Chika sued Gringo, a Venezuelan, for a sum of money. The Metropolitan Trial Court of Manila (MeTC) rendered a decision ordering Gringo to pay Chika P50,000.00 plus legal interest. During its pendency of the appeal before the RTC, Gringo died of acute hemorrhagic pancreatitis. Atty. Perfecto, counsel of Gringo, filed a manifestation attaching the death certificate of Gringo and informing the RTC that he cannot substitute the heirs since Gringo did not disclose any information on his family. As counsel for Chika, what remedy can you recommend to your client so the case can move forward and she can eventually recover her money? Explain. (5%)
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 2016.
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 31 March 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.
A welcome relief for the 2016 bar examinees was the setting back of the cut-off date to 31 May 2015. In the 2017 bar, the cut-off date is 30 June 2016. These are laudatory measures. From the time a case is made publicly available, a time lapse of about six months is necessary for the academe to “digest” the case and turn it into “actionable information” that can be used by the bar examinee or law student.
Salient changes made in the bar exam coverage
Some salient changes were made on the coverage of the bar examination. For example in Criminal Law, the Anti-Money Laundering Act was deleted from the bar exam coverage.
After having been jettisoned in the 2013 bar exam, legal forms or practical exercises makes a comeback in this year’s exam. The legal forms on which the examinee will be tested are however limited to the following, as per the bar exam coverage on Legal and Judicial Ethics and Practical Exercises released by the SC:
1. Quitclaims in labor cases.
2. Simple contracts – lease, sale of realty or personal property.
3. Promissory note.
4. Verification and certification of non-forum shopping.
5. Notice of hearing and explanation (all levels).
6. Affidavits – loss, change of name.
In Item No. 6, it appears that the “Affidavits – change of name” referred to are the petitions for change of name under R.A. No. 9048.
The bar exam subject with the most changes appears to be Remedial Law. I have drawn up a comparative table between the 2016 and 2016 Remedial Law bar exams to highlight the changes:
|2016 REM BAR||2017 REM BAR|
|Doctrine of Primary Jurisdiction.||Deleted.|
|Distinction between real-party-in-interest and locus standi added.|
|ADR and Pretrial and Discovery Guidelines.||Deleted.|
|Memorandum decisions added.|
|“Final Judgment Rule; exceptions” added.|
|Participation of the Solicitor General during appeals added.|
|Appeal from CTA.||Deleted.|
|Dismissal, reinstatement, and withdrawal of appeal added.|
|Dual function of appellate courts added.|
|Harmless Error Rule added.|
|Extended coverage of Special Proceedings, including Settlement of Estate of Deceased Persons, Change of Name, and Correction of Entries in Civil Registry.||Only Writs of Habeas Corpus, Amparo, and Habeas Data are covered in Special Proceedings.|
|In Writ of Habeas Data, the persons who may file petitions for writ of habeas data is added to the coverage.|
|Chain of Custody in drugs cases.||Deleted.|
|Rule on DNA Evidence.||Deleted.|
|Rule on Electronic Evidence.||Deleted.|
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, 2015, and 2016 Bar Exams recommend thus:
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.
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.
The number of questions in the 2016 was more reasonable. Nonetheless time-management is still an important aspect of bar exam training and coaching
“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.
Shock-and-awe questions were not employed in the 2016 bar, but the examinee should still expect them in any bar exam.
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:
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%)
In fact the use of objective-type questions increased in the 2016 Bar. Consider the following items in the 2016 remedial law bar:
State at least five (5) civil cases that fall under the exclusive original jurisdiction of the Regional Trial Courts (RTCs). (5%)
II[a] Briefly explain the procedure on “Interrogatories to Parties” under Rule 25 and state the effect of failure to serve written interrogatories. (2.5%) [b] Briefly explain the procedure on “Admission by Adverse Party” under Rule 26 and the effect of failure to file and serve the request. (2.5%)
What are the contents of a judicial affidavit? (5%)
V[a] What is the “most important witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery Measures? Explain. (2.5%) [b] What is the “one day examination of witness” rule pursuant to the said 2004 Guidelines? Explain. (2.5%)
xxx[a] xxx [b] What is the writ of continuing mandamus? (2.5%)
xxx[a] xxx [b] What does “personal knowledge of the facts and circumstances that the person to be arrested committed it” mean? (2.5%)
xxx[a] xxx (2.5%) [b] Distinguish “Summary Judgment” and “Judgment on the Pleadings.” (2.5%)
It has to be emphasized however that the study of definitions, enumeration, and distinctions is the “nuts and bolts” of answering problem-type questions. Hence regardless of whether or not objective-type questions will be asked in the bar, the examinee still has to pore over definitions, etc., in order as part of his over-all preparation for the bar.
Utmost preparation and training
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.
20 March 2017