Thursday, December 22, 2011

A lesson from the Florida Bar Exam for the Presidential candidates

I was sharing a few law school stories with a friend recently, and was reminded about something entertaining that happened when I took the Florida Bar Exam (and yes, this really does relate to the presidential race).

Every state's bar exam includes questions about general concepts on what's commonly referred to as the "multistate" exam, and then also a section that is specific to that state. The Florida Bar Exam (at least when I took it) spends an entire day on questions based on Florida law, a half day of multiple choice questions and a half day of essay questions.

Adding to the anxiety of the exam is that there are dozens of topics on which you might be tested - criminal procedure, family law, constitutional law,  estates and trusts, corporations and business entities, etc. - and you don't know which topics will be on your test until you open the question booklet. (FYI, generally each year's exam selected six topics - one for each of the three essays, and three for the multiple choice section - plus ethics and professional responsibility issues for each topic.)

Anyway, the day before the exam, I saw several of my fellow UF Law grads downstairs in the hotel lobby. Everyone shared a general feeling of "I can't remember a darn thing I've learned in the past three years, I'm totally going to fail tomorrow....arrrgh..." because, well,  that's how normal people feel the day before the bar exam.

Yeah...that's how normal people feel. One of my friends introduced to a guy I had never seen before. He was from New York, and arrogant didn't even begin to cover it. He was prattling on and on about how he had already passed the New York Bar Exam, which was clearly the hardest bar exam in the country, and our silly provincial state couldn't possibly come up with an exam that would challenge him.

We all rolled our eyes at him, but I just didn't have the patience for his nonsense, the evening before the biggest exam of my life. So, given the choice between bludgeoning him to death with my study books or retreating to my room, I made an excuse and left. (Don't worry, I'm going to get to how this relates to the presidential race in a minute.)

I ran into Mr. Arrogant the next day after we had completed the Florida portion of the test. This time, all my Florida friends were grinning. Curious, I listened to what he was saying.

He was bragging about how he had done so well on the exam, it had been so easy, his 1L exams had so much been harder, etc. But then he mentioned something interesting: he said that he was glad that evidence had been one of this year's topics, because he had clerked for some fancy-pants federal judge who was one of the experts on the federal rules of evidence, and he had written his law review note on the federal rules of evidence, and well, the Florida Rules of Evidence are based on the Federal Rules of Evidence, and he was such an expert on the Federal Rules of Evidence, so...

Heh. It took all my willpower not to burst out laughing. Mr. Arrogant had failed the Florida Bar Exam.

Here's why: He was an expert on the Federal Rules of Evidence. So he got all the questions wrong.

Stay with me here...yes, the Florida Rules of Evidence are mostly based on the federal rules, but they are far from identical. And the Florida Board of Bar Examiners somehow think it's important to make sure Florida attorneys actually know Florida law, so they tend to heavily emphasize ways in which the Florida rules are different from the federal rules.

In this case, at least 90% of the evidence questions were about areas where Florida doesn't follow the federal example. Also, the federal rule was always one of the multiple choice answers - so Mr. Arrogant got every single one of those questions wrong. 

Mathematically, getting almost all of the questions wrong on one section out of six meant that even if you wrote three perfect essays and got every single other multiple choice question correct (an unlikely feat), you still would not have enough points to get a passing grade on the Florida portion of the test. 

Short story: you cannot pass the bar exam if you completely fail a major section of it.

OK, now here's where this bar exam story connects to the presidential race (see, I told you I'd get to it eventually): I am seriously concerned that too many of our candidates are "failing a major section" of voter outreach. For now, let's leave for another day the issue of general election viability and just focus on the Republican primary...

My worry centers on what I saw in 2008: John McCain won the primary by basically outlasting the other candidates and secured the nomination without having a majority of the Republican electorate behind him. The problem was exacerbated when the campaign was slow to reach out to the other candidates' supporters and the conservative base. While Obama's 2008 campaign (especially combined with the economy) was a juggernaut that was likely unstoppable, McCain's failure to reach out and bring everyone into the fold was a contributing factor in the fatal lack of enthusiasm that doomed his campaign.

Now, this year, we have several of the frontrunners either ignoring or taking for granted major sections of Republican voters.

Rick Perry is working hard to reach out to social conservative voters in Iowa, but some of his messaging risks alienating more moderate voters. I can't figure out why he hasn't spent more energy talking about the impact government regulations, taxes and spending have on jobs and the economy - those are issues where he has a strong record and all conservatives can unite behind him, unlike that controversial YouTube ad where he worries about gays in the military and prohibitions on school prayer.

Mitt Romney's outreach efforts with the tea party are so rare that it makes news when he does try, such as when he spoke at a Tea Party Express rally a few months ago. There has been very little energy spent to communicate with the conservative base of the party throughout his campaign. It may be possible to win a general election without most of these voters, but it will be significantly harder: the conservative die-hards are often the most passionate and devoted volunteers.

Romney has also failed to reach out to conservative bloggers and large sections of the conservative media. (Yeah, I'm not really counting Jennifer Rubin.) Beyond the lack of any organized "Bloggers for Romney," there are very few individual voices who are speaking out online to advocate for him. Even those who say they support Romney seem to be motivated more by an uneasiness with other candidates than a true enthusiasm for him.

Newt Gingrich has the opposite problem. He is firing up the tea party base and setting Twitter aflame but alienating other Republican voters, especially those who are old enough to remember the political scene in the 1990s - yes, there was a Republican resurgence in Congress, but there was also a lot of messy, bitter infighting. 

Like Romney's insistence in following his "I'm running a general election campaign" plan, Gingrich stubbornly refuses to consider throttling back any of his engines. Demanding that the Capitol Police haul in activist judges to face their fate in a Congressional hearing may get some people fired up, but it makes a lot of others (including me) reason to pause.

The reality of the situation that many of the bloggers and online commentators miss is that there are an awful lot of Republican supervoters, who absolutely, most definitely, always show up to vote but just aren't engaged in the daily campaign soap operas in which all of us political junkies engage. 

Being outspoken is a double-edged sword. It gets people excited, but also gives your critics lots of soundbites to use against you. Gingrich's long political record and unwillingness to filter his thoughts have provided seemingly endless source material for attack ads. They also make many voters hesitate before supporting him. We can all agree that watching Gingrich debate Obama would be great entertainment, but "great entertainment" and pithy, snarky statements are not the same as competent leadership.

And that's a big deal. Wondering why Romney continues to poll a consistent quarter to third of the votes? Because he just plain sounds competent. After three years of watching the horrifically inexperienced Obama flail around, pass the buck, make excuses, petulantly whine, and in general, fail to provide strong leadership, Americans are yearning to have a grown up in charge again. 

It's not just the hair that makes him "look Presidential" - he sounds serious when he speaks and discusses policies and ideas in the detail. I may not agree with Romney in his defense of RomneyCare, but I'm pretty sure that he would be a prudent, practical president. He hasn't sold me that he is as solidly conservative as I would prefer, but I just can't get into a panic about the idea of a President Romney. (Note: I'm not trying to promote style over substance; I'm only saying that they both matter.)

It's no puzzle to me that so many Republican voters are conflicted and undecided: I'm feeling the same way. I can get over the frustration of some of my favorite candidates not running this year, but I'm not inclined to be forgiving when I see many candidates, and the party establishment as a whole, repeating some of the same mistakes from 2008. It's true that each of the candidates will appeal differently to certain segments of the Republican electorate, but I strongly feel that it's a gigantic mistake to just give up on reaching out altogether until after the primary.

[Cross-posted at RedState]


  1. I'm fairly shocked that you believe he failed. The Florida MC is such a minor part of the exam that as long he rocked the MBE, and scored 40s on the essays, he could have missed every single MC (not just evid) and passed.

  2. I don't have the exact numerical breakdown, but I was told at the time I took the test that you couldn't fail an entire section and still pass. Not sure how the exam is divided now. There might be a different scoring breakdown.

    Also, my hunch is that if he was so arrogant about that one subject, it's not a stretch to think he may have not adequately prepared for other parts of the test.

    Regardless, the analogy still holds - can't pass a test if you fail an important section.

  3. Just to clear this up for any future readers of this entry who stumble across it on Google: the exam is divided into two sections: Florida and MBE. You need to score a 136 in each to pass. If you fail a section, you still pass as long as your average score is 136 between the two sections. The Florida section is divided into two parts: part I w/ three essays and part II w/ 100 MC questions. So evidence MC would be 33 out of 100 questions.


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