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Memorization Tips for the California Bar Exam – Active vs. Passive Repetition

We have received numerous questions in reference to memorization for the California bar exam. It seems to be a hot topic now that the bar exam is fast approaching. Before getting into the specifics of memorization for the bar exam, it’s important to discuss passive repetition vs. active repetition. In order to memorize the large number of rules and exceptions for all subjects, you need to get in the habit of active repetition, not passive repetition.

Passive Repetition

Most people study using passive repetition. And as recent trend suggests, most people also end up failing the California bar exam. So what is passive repetition? A majority of you have either created your own outlines, are using outlines provided to you, working off a previously created outline, or received an outline by your respective bar prep programs. At this point you are probably in the habit of reading your full or condensed version of your outlines. Then you read it again. And maybe you read it again. Then you go and so some practice problems. This is called passive repetition.

Some of you might be listening to video lectures and try to soak in what you can, and then you go home and do as many MBE and essay questions as you can. You get some answers wrong, but then you read the answer and explanations. Again, this is called passive repetition.

Some of you may be relying on flashcards and are testing your ability to recall the information as recorded. This is getting closer to active repetition, but it still falls within the realm of passive repetition.

Active Repetition

Let’s be honest here. There is no way you or anyone can memorize so much information in such a short time span unless you pound the information into your brain. And the only way to do that is through active repetition and a little bit of strategy. Step number one is to find yourself a complete, yet concise outline, and make it yours. You need to be one with your outline. By this, I mean that you need to work with the outlines, change up the wording wherever appropriate and make it easier for you to memorize, move things around to fit mnemonic devices that you create.

It’s also easier to memorize rules by writing out the rule statements, rather than from oddly formatted outlines. We recommend using simplified rule statements that make it easier for you to memorize. With passive repetition, the end goal is to simply understand concepts. But understanding just the concepts will not result in passing the California bar exam. You need to be able to recite the various rules from memory. The good news is that you have already done a majority of the hard work – and that’s understanding the concepts. That’s what really needed your brainpower because some of the concepts are truly difficult and intricate to comprehend.

Now you need to memorize, word for word, the key phrases and black letter law that the bar examiners are looking for. For some, this is by far the most grueling step of the process because it takes patience, diligence, dedication and desire. It does not require intelligence. Your job is to take your outlines/rule statements and break them up into sections, and memorize it, word for word.

How do you do that? You need to focus on working methodically through your entire outline/rule statement line by line, page by page. For example, let’s say you worked through your evidence outline and now it’s time to discuss a hearsay exception: excited utterance. I know you understand the concept at this point – but that’s not enough. When it comes to the California bar exam, you don’t have time to think about the concept in your head, formulate in your mind the wording to explain that concept to the bar exam grader, and then type it on your screen. And even if you did have the time, you may forget to include some of the key words or key phrases that the bar exam graders are looking for when giving out points.

So what you need to do is memorize, word for word, the definition as it read on your outline. You want to memorize the following: a statement related to a startling event or condition is admissible when made while declarant was still under the stress of excitement caused by the event or condition. The underlined portions are the key phrases that will get you points, so you want to make sure you get those phrases memorized word for word.

Next you will logically move on to present sense impression under the FRE. You want to memorize the following: a statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately after. Again, note the underlined portions are the key phrases the bar grader is looking for.

More examples:

Torts – Battery

Battery is an intentional act caused by D, which brings about a harmful or offensive contact to P. Offensive contact is contact that offends a reasonable sense of dignity.

Crimes – Conspiracy

An agreement between two or more people with the intent to enter into agreement and intent to commit the target crime and an overt act in furtherance of the target crime. Mere preparation will suffice. Each co-conspirator is liable for the crime of her co-conspirators that are foreseeable and in furtherance of the conspiracy.

Civil Procedure – Minimum Contacts

The D must have such minimum contacts with the forum state such that the exercise of JX would be fair and reasonable. A court will look at two factors: purposeful availment and foreseeability.

Property – Easement

An easement is a non-possessory interest that confers the right to use another’s land. An affirmative easement entitles its holder to make affirmative use of the servient estate, while a negative easement entitles its holder to restrict the servient estate from otherwise permissible activities.

Business Associations – Agency Relationship

An agency relationship arises when both parties mutually assent to the relationship, A acts for the benefit of P, and P retains control over A’s actions. P must have a contractual capacity & A needs only minimal mental capacity. A P will be bound by the acts of his A if the A acted with authority.

Now there are a lot of key phrases and definitions to memorize. That’s why it is so important to do more than merely read phrases over and over to yourself silently in your head. Here’s what you do: open a blank word document and type, re-type those key phrases, sentences, and definitions over an over again until you have them ingrained in your memory. Or if you are writing the bar exam, grab a pen and some paper and repeatedly write the sentence and key phrases over and over until you have memorized it.

Utilizing this memorization technique, you impose active repetition on more of your senses, which in turn helps to facilitate memorization. For example, you use your brain to think about what you need to write. You use your internal voice to speak the phrase out to yourself in your head. You use your fingers to type the phrase on your keyboard. And finally, you use your eyes to watch the words as they appear on the screen.

Consequently, you build up your typing speed and accuracy, and ensure that you’ll get the maximum points available. Think about typing your first and last name on a keyboard. You hardly ever make a mistake, and you can type your name more quickly than any other word. Why? Because you have done it so many times! There’s an instant connection between your name and the sequence of key strokes that you need to hit to make your name appear on the screen.

Ok back to the bar exam – you want to build that same type of instant connection with those key phrases, sentences, and definitions on your outlines. The goal is to eliminate the thinking process, such that once you have spotted an issue, the rule statement is already, literally, at the tip of your fingers. At the end of your study sessions, you should have a lengthy word document filled with key phrases and definitions. The document need not look pretty, and it shouldn’t.

Your task is to type and re-type, and re-type. You don’t need to stop and make the document look pretty. Check that OCD at the door for a little bit. The important idea is to build that connection, that speedy connection between your brain and your fingertips using active repetition.

When you study a certain subject, you need to parse out that subject by topic. For example, if you are working on contracts, one of the topics will be unenforceable contracts. Accordingly, within that topic, you will need to memorize lack of consideration, lack of capacity, statute of frauds, illegality, misrepresentation, duress, unconscionability, ambiguity, mistake as to material facts, etc. Now memorize the rule statements for this particular section (unenforceable contracts) and do not move on until you have it down cold.

Then you can move on to another section, termination of offers. For this topic you will need to know Lapse of time, revocation, rejection, additional terms (CL and UCC), death or incapacity. Memorize, write out, re-type, and solidify. Just like that, each subject should be parsed out to make memorization easier. You are essentially tricking your brain into thinking you are memorizing small chunks of information. For Torts, you parse out the subject into 1) intentional torts, 2) defamation/invasion of privacy, 3) negligence, 4) strict liability, 5) products liability, and 6) general considerations. For Property, you parse out the subjects into 1) ownership interests (present possessory estate, future interests, concurrent estates, landlord tenant, adverse possession), 2) nonpossessory interests (easements, license, profit, covenant running with the land, equitable servitude, lateral and subjacent support), etc. For Business Associations, you need to parse out the subject into Agency, Partnership, and Corporations. Then parse out each of these topics into subtopics, for example Agency: 1) formation, 2) duties owed by agent, 3) duties owed by principal, 4) remedies, 5) contractual liability, 6) contractual liability to third parties, tort liability (respondeat superior), etc.

This method of active repetition is scientifically proven to enhance memorization skills across the board. If you are still in need for simplified rule statements, check out our CBB materials for all subjects here.

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