Friday, March 06, 2009

Portrait of the Street Strategist as Bar Examiner Part 5

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Portrait of the Street Strategist as Bar Examiner - 5 -


his is the continuing pseudo-treatise on the portrait of the Street Strategist as a bar examiner on how to maximize the effectiveness of the bar examinations as the only reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings.

In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise. In Part 2, we discussed the basic operations of the bar examinations. In Part 3, we discussed the species of bar examiners, their positives and negatives. In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions.

In this part, we shall discuss more questionable aspects of test construction as practiced by the examiners over the years.

Great Wall

A reader wrote to correct me that the Great Wall of China cannot be seen from the moon. Yes, if we go by Microsoft Encarta and other web sites lifting and regurgitating the same information from a single source, it cannot be seen from the moon.

On the other hand, during the space race in the late 1960’s to early 70’s, astronauts claimed seeing the Great Wall. Both accounts could be right. After all, given the current state of earth pollution, the satellite cameras and Space Shuttle astronauts probably could no longer see what the cosmonauts could have seen decades ago. And that anecdote about the guards could have been pure yarn. Anyway, what counts is message not the medium.

Misdirected fear

Now back to the bar. Question: What is your greatest fear with respect to the bar examinations?

I don’t have to survey the entire population of 5,000 bar candidates, but based on anecdotal evidence, the following would be the generalized response: “I am less afraid of being asked about my general knowledge of the law and jurisprudence. I am more afraid that the bar examiner will give whimsical and capricious questions that he himself could not answer correctly or cannot answer within the given time or questions that do not test my analytical skills or has no bearing with the realistic legal practice for a new lawyer.”

Thus, the apprehension of the bar candidate is misdirected, his focus is tangential, and his concern is obtuse.

The candidate is afraid that the bar examinations will not test him on what he knows; he is afraid that the bar will test him on what he does not know.

Lack of philosophy

For the candidate, the bar examinations, being limited only to 20 major questions, has become a game of approximating the whim, caprice, and vanity of the bar examiner rather than the judicious process of measuring his analytical skills in integrating and applying different concepts of law and jurisprudence to a legal situation.

The central focus of the bar is the law and jurisprudence, not the whim, caprice and vanity of the bar examiner. The examiner should be invisible.

Otherwise, the weight of the bar as the single most important reference performance metric of the candidate’s analytical thinking process will be reduced to zero.

My theory is that the examiner is an expert in the law but not in test construction. Most likely, the examiner has not adopted his own pervasive philosophy of test construction.

If this is the case, I am going to offer one such philosophy including one such operational implementation towards the end of this series.


Let’s go over this question in the 2003 Bar:

A, B, C, D, and E made themselves solidarily indebted to X for the amount of P50,000. When X, demanded payment from A, the latter refused to pay on the following grounds: (a) B is only 16 years old. (b) C has already been condoned by X. (c) D is insolvent. (d) E was given by X an extension of 6 months without the consent of the other four co-debtors. State the effect of EACH of the above defenses put up by A on his obligation to pay X, if such defenses are found to be true.

Truthfully, how long will it take you just to internalize and visualize the personalities? You are supposed to think about each and every one of the situations above and write down your answer in a total of ten minutes. Therefore, you have about two minutes per situation. Even if you have perfect information, I doubt if you can write down your answer directly from your brain in two minutes for each situation.

In the bar, every minute counts. As examiner, it would be unconscionable to cause the candidate to devour five minutes just to visualize the entities involved. And this will happen if the examiner is not sensitive to minor things.

An examiner does not realize this additional burden of visualization because it takes him days to think, create, and write down a single problem. Thus, being the creator, he doesn’t feel the burden of initial visualization of the bar problem.

Unfortunately, the candidate does not have this advantage of several days or months familiarizing with the situation envisioned in the bar question.

What’s the deal with A, B, C, D, & E? Why not use names like Adolph, Blaine, Charles, David, and Edward?

There’s a huge difference when normal names are used. Can you feel the difference? There’s that intuitive, realistic, familiar visualization.

As examiner, the Street Strategist will be sensitive to minor things, even those things that other examiners will never ever consider. Remember, we should not burden the candidates unnecessarily, even in the minor matter of nomenclature.

Be it resolved that all bar problems use regular names to minimize the visualization burden. Now, that’s being sensitive to the plight of the terrified candidates.


In Part 4, I gave examples of my idea of whimsical questions. Yet, despite of the fact that I told you that the answers are very long, I don’t think you really have an idea of how long those answers are. You see, there is a big difference between being told how long the answers are, and the actual experience of reading them.

So, let’s have an example of how tyrannical these questions could be. In the 1977 Bar in Civil Law, there were 20 questions but each of them has sub-questions, about 12 minutes per question. Review the following question and see if you could have picked your brains, formulated your answer and most importantly wrote it down in 12 minutes for all the three sub-questions.

Bar 1977 Question 6:

What are the modes of acquiring ownership and other real rights under the New Civil Code?

What is tradition and give five kinds of tradition which are provided in the Civil Code

What are the requisites of usufruct? How is it constituted and how do you distinguish it from ownership and from lease? What are the modes of extinguishing them?

Answer provided by the UP Law Center:

A. Under our Civil Code, the modes of acquiring ownership and other real rights are the following:

1. Occupation

2. Intellectual creation

3. Prescription

4. Law

5. Donation

6. Testate and intestate succession

7. In consequence of certain contracts, tradition

B. Tradition is a derivative mode of acquiring ownership and other real rights by virtue of which they are transmitted from the patrimony of the grantor, in which they have previously existed to that of the grantee by means of a just title, there being both the intention and the capacity on the part of both parties.

The different kinds of tradition which are recognized in the Civil Code are:

1. Real tradition

2. Constructive tradition

2a. traditio symbolica

2b. tradition longa manu

2c. traditio brevi manu

2d. traditio constitutum possessorium

3. Quasi-tradicion

4. Tradicion por ministerio de la ley

C. There are two requisites of usufruct, the essential and the accidental. The essential requisite is the right to enjoy the property of another, while the accidental requisite is the obligation of preserving the form and substance of such property. The latter is accidental, because the title constituting the usufruct or the law may otherwise provide as in the case of abnormal usufruct.

A usufruct may be constituted:

1. by law

2. by the will of private persons expressed in acts inter vivos

3. by the will of private persons expressed in a last will and testament

4. by prescription

Comparison (ownership vs. usufruct)

Ownership has for its attributes:

1. the right to enjoy (just utendi, jus fruendi, jus abutendi)

2. the right to dispose (jus disponendi)

3. the right to vindicate or recover property (jus vindicandi);

Usufruct is limited merely to the enjoyment of the property (jus utendi and jus fruendi)

Comparison (lease vs. usufruct)

1. As to nature of right – Usufruct is always a real right, whereas lease becomes a real right only when registered.

2. As to constitution – Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription, whereas lease is as a rule constituted by contract

3. As to the person constituting it – In usufruct the person constituting it is the owner, whereas in lease the person constituting it need not be the owner.

4. As to extent - Usufruct includes the right to use and enjoy the fruits (jus utendi, jus fruendi) of the thing, whereas lease is more limited.

5. As to duration – There is no limitation to the duration of the usufructuary right, whereas there is a limitation to the duration of a lease right.

6. As to repairs – The usufructuary is responsible for ordinary repairs, whereas the lessee is not.

7. As to taxes – The usufructuary is responsible for taxes on fruits, whereas in lease the lessee is not.

Usufruct is extinguished:

1. By death of the usufructuary, unless a contrary intention clearly appears.

2. By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct.

3. By merger of the usufruct and ownership in the same person.

4. By renunciation of the usufructuary

5. By total loss of the thing in usufruct

6. By termination of the right of the person constituting the usufruct

7. By prescription

Perfect information time

So, were you able to answer the above question in 12 minutes? Of course, you didn’t. Why not try this one: Just copy all the answers above on a sheet of paper; can you finish in 12 minutes?

Did you forget any of the enumeration above? Sorry, try your luck next year. Now, who says law doesn’t need memory work? It’s the bar exams itself that’s the proof. Res ipsa loquitur: the thing speaks for itself. Remember, almost all the 20 questions have sub-questions of the same style.

Even if you had the time, could have you remembered all those enumerations and distinctions above?

And even if you have memorized all of them, and the rest of the 2,200 plus articles of the Civil Code, has the above question tested your ability to think and apply your legal knowledge to a legal question? The answer should be a resounding, “No,” right?

There is a sacred responsibility that comes with being a bar examiner. And that includes avoiding an impossible imposition on the candidates. For instance, many examiners do not realize that their questions are impossible to answer in the given time as exemplified above.

How to avoid this problem? Allow me to share a personal experience.

There were a few occasions in my younger days when I had to give examinations to a college class, and I didn’t know the time limit to be set.

Yet, I knew that the academic lives of these students depended on this time limit and I didn’t want to have the guilty conscience of destroying their future because of a whimsical and arbitrary time imposition on them. Some of these young people would lose their scholarships forever.

Here’s what I did. I solved the problems one by one, in the step-by-step solution that I considered as the perfect solution. I timed my answers.

Bear in mind, that I know what the perfect solution was, after all, I designed the problems.

I was merely writing it down the way I expected a perfectly arranged solution ought to be. That interval was what I called the “perfect information time”(PIT).

Note that this was extra work for me, spending time to answer my own problems, something which is not normally done by examiners.

Since a student will have to read the problem and analyze it, and make corrections along the way to refine his solution, he would spend much more time than the PIT.


I invented a formula of the Student Answer Time (SAT) as the PIT plus some extra analysis and composition time (ACT). Thus: SAT = PIT + ACT.

And so it came to pass that I knew exactly what was the PIT, and I assigned the ACT so that the SAT is double the PIT. Therefore, I knew the SAT was not whimsical and capricious.

Back of the book

But then, I soon realized that the ACT that I was giving wasn’t even enough. There were still complaints. Most of the problems I created were not designed for simple application of a formula but designed to use particular insights that were not even discussed in the class although these insights were discussed in a previous semester. The problems used integration of different bits and pieces from all over the place.

For example, I remember this particular problem that I designed that was impossible to solve using the normal algebraic methods but could be solved in ten minutes using polar coordinates, the latter being a concept that is covered in first year math. But how on earth could have you have thought of using polar coordinates? That was the test of critical analysis.

In fairness, I gave it a bonus problem. If any student solved that I would have awarded him the Nobel Prize as well.

When students complained that the time for the exam was not enough, I began to question my own methods. What exactly did I want from them in terms of knowledge and understanding as measured by the test? Speed? Memory?

Then it dawned on me that in real life, the answers are not found in the back of book. In fact, they can open the book when they are going to practice their professions years later.

I realized that what I really wanted from them was to know what part of the book they should be looking at. I wanted them to know where and how to find the solutions.

Finally, I wanted to assess their thinking process, analysis, and integration of separate concepts as applied to a single problem, and not their memory.

Open book, indefinite time

Forthwith, I instituted a simple but very revolutionary experiment: Open books, open notes, no time limit.

If I had the courage to institute such an examination regime, it was because I knew that the problems were designed in such a way that they would have to use their analytical skills.

For an exam that was designed for one and a half hours, the students would eventually submit in two to three hours. Most of them give up, after all, sitting for three hours is enervating. And for those who stay behind after three hours, I would ask them how much time they needed, and whether such additional time would really cause them to formulate a solution. They can continue in the faculty room.

It’s a different case if you are pursuing a solution and you need time for it or if you are just waiting for a miracle from above.

Result? It was fairly easy to know who deserved promotion and who deserved retention.

Of course, this method cannot be applied in full to law school or the bar, but the principle of testing analytical skills rather than memory is there.

Yet, I still received complaints. Some students wanted to revert back to the close book, time limited exams? Why? They realized that my problems would have to be tempered down since they cannot open books and they have to finish it under a time limit. In short, under scarce resources I would be forced to give reasonably easier exams. I, too, began to see their logic. There’s always a trade-off somewhere.

Nobel Prize

And you cannot say that I’m just shooting the bull. I apply these principles to myself as well. For instance, in my article Broadcaster, I wrote about submitting in 30 minutes when the exams was designed for two hours because I could not write anything anymore. It was the equivalent of no-time limit which I could not have availed of, anyway.

As for examples of problems whose answers are not found in the book, these are the problems that I have tackled together with you in the last five years as the Street Strategist albeit those problems were irrelevant, immaterial, and inconsequential.

By the way, before I leave this topic, I have a minor fun problem for you. I will award a copy of my book Strategy Myopia to the first five individuals who can email me their correct solutions. Even if you answer late, you still have the chance because the first answers could be wrong.

Here is the problem: “A guard dog is tied to the outside wall of a cylindrical tower with a radius of 10 meters. If the leash of the dog is exactly half-way round the tower, how much ground area outside the tower is covered and guarded by the dog?”

Come on guys, even a grade four student understands circle and radius. It’s like I’m giving away my book for a song, right? And, by the way, with your correct solution, in addition to awarding you my book, likewise, I will award you the Nobel Prize.

to be continued

(Thads Bentulan, July 1, 2004)

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