Author Topic: Reasons why people fail the bar exams — poor grammar, deficient writing skills  (Read 12294 times)

Gerry T. Galacio

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A. People who pass the bar exams are usually first timers.

Several weeks ago, the Supreme Court released the results of the 2019 bar exams. Out of 7,685 examinees, only 2,103 or 27.36 percent passed the exams.

Most of the people who pass the bar exams are first timers; those who flunk usually have taken the exams before. Several years ago, the Supreme Court decided to ban people who have flunked the exams three times from taking the exams ever again. But due to petitions by numerous bar flunkers, the Supreme Court lifted the ban.



B. Incorrect English has been the cause of high failure rates in the bar exams.

In my blog post “How to pass your law school exams and the bar exams” at https://famli.blogspot.com/2020/05/how-to-pass-bar-exams.html, I discussed the four ways by which people can pass their law school exams and the bar exams. Among these ways are to become proficient in grammar and to learn how to write clearly, concisely, and effectively.

In its guidance for the 2019 examinees at http://sc.judiciary.gov.ph/files/bar-2019/bulletin-06.pdf, the Office of the Bar Confidant cautioned the examinees that “incorrect English is a more serious problem than the lack of precise knowledge of law and has been the cause of high failure rates.”

Atty. Rita Linda V. Jimeno, a former bar examiner, stated in “The bar exams: Post mortem” (Manila Standard) at https://manilastandard.net/mobile/article/205686 that: “Worst, many of the examinees were unable to express their thoughts in English. The English grammar of many of the examinees could shock even a high school graduate who took his secondary education seriously.”

Atty. Josephus Jimenez in “Why too many flunkers in the Bar” at https://www.philstar.com/the-freeman/opinion/2018/04/27/1809957/ said: “The grammar is wrong, the syntax twisted, the spelling incorrect. They cannot even distinguish between verb and adverb. They have forgotten their parts of speech. My God, I have been checking midterm and finals examination answer sheets since 1977 and I always suffer mental anguish, serious anxiety, and wounded feelings whenever I see how students express themselves in atrocious ways.”

Justice Ameurfina Melencio-Hererra, Chairperson of the Committee on Bar Examinations, in her report to the Supreme Court on the 1980 bar exams, also pointed to the examinees’ poor grammar and lack of writing skills as the primary cause for failures:

“Only in a few instances was there a command of the English language.”

“Require additional courses even in law school proper in the fields of English composition and grammar for those who are deficient in their ability to express and convey their ideas.”

“Very many examinees, to put it mildly, ‘murder’ the English language. Some are worse than high school undergraduates.”

“Many candidates did not use the proper tenses. Bar candidates should be advised to be more careful with their tenses and try to aim at clarity in their answer.”

C. Has our educational system failed to teach good grammar and writing skills?

Justice Art Brion said in “Legal education and the Bar examinations” at https://news.mb.com.ph/2017/10/31/legal-education-and-the-bar-examinations/ that: “My topmost concern relates to our educational system and the deficient high school and college preparation it has given our law students. Many of these students are ill-equipped for law school’s demands, particularly, in the use of English, reasoning and writing skills. If these students somehow survive law school, many of them would just end up joining the majority who usually become the Bar examination casualties.”

The failure of the educational system to teach grammar is a problem not only in the Philippines but also in the USA. Read, for example, “The Grammar Wars Come to Law School” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567247 by Aida Marie Alaka, Washburn University School of Law (Journal of Legal Education, 2010). “This article provides a concise overview of pedagogical shifts in language arts education over the last twenty-plus years as well as empirical studies of high school and college reading and writing skills. It thus provides insights into why basic skill errors surface in the writing of law students today.”



When I was in high school in the early 1970s, English grammar and literature were taught as separate subjects. When I started teaching in 1981, the teaching method in vogue was the “Integrated Approach” where grammar and literature subjects were merged, with the grammar lessons taken from the poem, essay, or short story being discussed.

(In her famous short story “Visitation of the Gods,” Gilda Cordero-Fernado describes the heroine Miss Noel as an English teacher who is starting to use the Integrated Approach.)

I stand to be corrected, but, sometime in the 1980s, our education officials adopted the “Communicative Language Teaching Approach” (CLT). This approach emphasizes the ability to communicate (or be understood) rather than the ability to communicate in grammatically correct English.

For more information about the CLT Approach, surf to https://www.myenglishpages.com/blog/communicative-language-teaching-communicative-approach/

Under the K-12 program, the students’ mother language is used to teach Grades 1 to 3; from Grades 4 up to senior high school, English is supposed to be the medium of instruction. But from my experience in giving English proficiency seminars, I know that a lot of teachers continue to use Filipino or local dialects as medium of instruction beyond Grade 3.

I think that the Commission on Higher Education (CHED) has implemented a program known as “English Plus” to address college students’ deficiency in grammar and writing.

If you’re planning to go into law school, you cannot depend on the educational system to make yourself proficient in English grammar and writing. As Atty. Josephus Jimenez said in his article cited above, he took time to study grammar even though he lived in a squatter area.

D. The Dunning-Kruger Effect: Lawyers and law students are poor writers.

Bryan A. Garner is the editor in-chief of all current issues of Black’s Law Dictionary. He has trained more than 150,000 lawyers and judges in the USA on the Plain-English style of legal writing and was the major consultant in the Plain-English revisions of all the US Federal Rules of Court. Besides co-writing two books with the late US Supreme Court Justice Antonin Scalia (“Reading Law: The Interpretation of Legal Texts” and “Making Your Case: The Art of Persuading Judges”), he also wrote “Modern American Usage” (now on its 4th edition). He wrote the chapter on “Grammar and Usage” of the Chicago Manual of Style, and based on that chapter, he wrote the 500-page book “The Chicago Guide to Grammar, Usage, and Punctuation” (2016).



I listed Garner’s qualifications and accomplishments to prove that he knows what’s he's talking about when he says that lawyers are poor writers. In his article “Why lawyers can’t write” (ABA Journal at https://www.abajournal.com/magazine/article/why_lawyers_cant_write), Garner says that lawyers (and therefore law students) are poor writers because they suffer from the “Dunning-Kruger Effect.”

Briefly stated, the Dunning-Kruger Effect means that “unskillful or unknowledgeable people (1) often think they are quite skillful or knowledgeable, (2) can’t recognize genuine skill in others, (3) uniformly fail to recognize the extremity of their own inadequacy, and (4) can recognize and acknowledge their own previous unskillfulness only after highly effective training in the skill.”

(Have you noticed that those who are absolutely tone deaf or “sintunado” are usually the ones who sing the loudest in a karaoke bar? That’s the Dunning-Kruger Effect in action.)

Garner argues that “the legal profession suffers from a pervasive Dunning-Kruger problem.” He says:

“This is puzzling but true. While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. But there’s plenty of blame that falls elsewhere. Writing standards have consistently fallen over the last century in secondary and higher education. (It would take a full-scale book to unpack that set of issues.) For law firm associates, their senior lawyers too often decry any emphasis on writing style (‘I’m just concerned with the substance of it! I leave style to others!’). And in general society, serious readers are becoming an endangered species.”

What Garner says about the lack of feedback from law professors on substance and style is true in the Philippines. Very few law professors note in the exam booklets the errors in grammar and writing that students make. Thus, students graduate from law school thinking that they are good writers when, in fact, they’re not.

What does Garner’s argument about the Dunning-Kruger Effect mean to you if you’re a law student or a bar examinee? Simply this: whether you’re a dean’s lister or someone who’s barely surviving in law school, whether you’re a potential topnotcher or a bar flunker —  you’ve got to show your law school exam booklets or bar exam booklet to a person who’s qualified to critique your proficiency in English grammar and writing. That person can be your English teacher or a professional writer, for example; if that person has a legal background, so much the better. Let that person be brutally honest in pointing out your errors in grammar and writing. (You can also avail of my limited free offer of personal coaching for law students and bar examinees; surf to https://famli.blogspot.com/2020/05/how-to-pass-bar-exams.html for details.)

Notes:

1. "Good English always has been a path to the legal profession" (Bryan A. Garner, ABA Journal) at https://www.abajournal.com/magazine/article/good-english-always-has-been-a-path-to-the-legal-professionhe article "How

2. Poorly Drafted Pleadings and Bad Writing Can Hurt Your Client and You" (Penn State Law) at
https://pennstatelaw.psu.edu/current-students/online-legal-writing-center/writing-tools/how-poorly-drafted-pleadings-and-bad enumerates cases where US courts reprimanded lawyers for their numerous spelling, grammatical, and typographical errors. For example, in Ramos-Barrientos v. Bland (2008), a Georgia court ordered the plaintiffs' lawyer to amend the complaint that used "convoluted sentence structures" and "page-long sentences."

E. Examples of poorly written answers from the 1980 bar exams provided by Justice Ameurfina Melencio-Hererra; the problem of “L1 interference” or “negative language transfer”

A. Question No. 6 (b) – “An accused was found guilty of double murder and was meted out two sentences of reclusion perpetua. How would be the accused serve the sentences?”

Answer – “Both penalties must be served by the accused, and he was electrocuted and died then it washes out the remaining sentence to served by the accused.”

My comments: Errors include lack of tense consistency (“was electrocuted” and “it washes”). The phrase "to served" should be "to be served." The answer is a rambling sentence that just piles on words and phrases without any thought for punctuation or organization. The introductory part of the answer (“Both penalties must be served by the accused ...”) is in the passive voice; as much as possible, using the passive voice should be avoided. On the substantive matter, the facts state that the penalties imposed were reclusion perpetua; why did the examinee speak about electrocution?).

B. Question No. 11. – “Patrolman Cruz, acting under orders of the Municipal Mayor, who wanted to put a stop to the frequent occurrence of robbery in Sitio Masukal, patrolled the place. At about midnight, seeing three persons acting suspiciously in front of an uninhabited house and entering the same, he arrested them without warrant and took them to the municipal building where they were detained in jail for about five hours before they where released.

Patrolman Cruz was accused of arbitrary detention. If you were the Judge, would you convict him of the crime charged?”

Answer – “No. considering his possession as peace officer by the higher authority to patrol the place where robbery are frequent. The one responsible for this is the Municipal Mayor who order without warrant of arrest and the act of the patrolman are in good faith believing to be a robbery entering a house.

So the proper party liable is the Municipal Mayor.”

My comments: Errors include using a period rather than a comma after the word “No”; “possession” should be “position”; “robbery are frequent” should be “robberies are frequent”; the first sentence is just a jumble of words and phrases (it’s actually a sentence fragment and not a full sentence if the examinee really intended to use a period after the word “No”); the last sentence is a only a bit better, but the two independent clauses should be separated by a comma; the phrase “a robbery entering a house” makes me want to tear my hair out!

C. Question No. 17 – “AA” was the owner of a jeepney for hire. When his driver was hospitalized, he hired “BB” as driver on a temporary basis and entrusted to him the vehicle for transporting passengers from Quiapo to Baclaran with a compensation of P30.00 a day. “BB” never returned the vehicle and after search the vehicle was found in Tarnate, Cavite, about to be sold. “BB” was charged with Qualified Theft and was convicted.

Appealing the judgment of conviction, defense counsel contends that “BB” may have committed Estafa but not Qualified Theft on the theory that the possession of the vehicle was obtained with the consent of “AA” the owner, and therefore, there was no illegal taking.

Decide the case.

Answer – “The defense counsel of the accused contention in untenable assuming now that there is no illegal taking of the jeep from “AA”. The owner but “BB” a temporary driver hired by “AA” failure to return the jeep such vehicle as now ready to be sold by “BB” have an intent to gain is theft cases as an element.

My comments: Where do I begin? In the first sentence, the examinee probably meant to say: “The defense counsel’s contention is untenable because AA did not take the jeep illegally.” In the second sentence, the examinee probably wanted to say that the element of intent to gain is lacking. But what the examinee meant to say could not be understood by what he/she actually wrote.

As Justice Ameurfina Melencio-Herrera said: “The majority of those who failed in the subject have also manifestly shown their poor command of the English language, such that certain examinees may probably know the law but they lack the ability to express themselves. The result is that, one will find it very difficult to understand what they really wanted to convey in their answer to the question propounded.”

One possible reason why these examinees answered so poorly is that they thought of what to write about in Filipino or some other dialect and then translated their thoughts to English. This gives rise to a problem that linguists call as “L1 interference” or “negative language transfer.”

If your level of English is the same or just slightly better than the persons who gave the answers cited by Justice Ameurfina Melencio-Hererra, you need a miracle to pass the bar exams. Miracles, however, don’t happen quite often (that’s why they’re called miracles). But there’s still hope for you.

F. As a law student or a bar examinee, you must improve your grammar and writing skills; you must immerse yourself in the structures, rhythms, expressions, and nuances of the English language.

You need to improve your grammar and writing skills — whether you’re a dean’s lister or someone who’s barely surviving in law school, whether you're a first timer in the bar exams or a bar flunker, whether you aim to be a topnotcher or just want to pass the bar exams. But you cannot depend on just a review of basic grammar; you need to immerse yourself in the structures, rhythms, expressions, and nuances of the English language.

In my blog post at https://famli.blogspot.com/2020/05/how-to-pass-bar-exams.html, I listed numerous ways you can immerse yourself in English. Also, a Google search will give you more resources such as the following:

“6 Wonderful Options for Learning English Through Immersion” at https://www.fluentu.com/blog/english/learn-english-immersion/

“What is English Immersion? Does it Work?” at https://www.teach-nology.com/teachers/bilingual_ed/english.html

How did foreign players in the NBA and singer Shakira learn to speak or write in English?

1. The article “Coming to America: How International Players Survived in NBA” at https://www.basketballinsiders.com/coming-to-america-how-international-players-survive-in-nba/ discusses how players such as Pau Gasol, Al Horford, Marcin Gortat, and Anderson Varejao learned to speak English.

2. “Shakira: How Walt Whitman Changed the Trajectory of the Singer’s Life” at https://www.cheatsheet.com/entertainment/shakira-how-walt-whitman-changed-the-trajectory-of-the-singers-life.html/

When Shakira first came to the US, she couldn’t speak a single word of English; her mentor Gloria Estefan thus got her an English tutor. But, even after learning to speak in English, she still wanted to learn how to write songs in English:

“To me it was very important to understand the nature of the language and how it works in literature,” Shakira said to VH1 in an interview. “I wanted to know how English grammar works…I had to read Walt Whitman’s Leaves of Grass in English just to understand the language a little more. It was too important to me to write my own material like I always did.”

(Note: Walt Whitman popularized what is called “free verse” in poetry; among his famous poems are “O, Captain! My Captain!” and “I Sing the Body Electric.”)

What can Shakira’s experience teach law students and bar examinees? Simply this — the structures, rhythms, expressions, and nuances of English are different from Filipino or any of our dialects. If you continue to think in Filipino or any dialect about what you want to write, it will come out wrong. Think in English, write in English!

G. Notes:

1. Because of the COVID-19 crisis, the 2020 bar exams have been postponed to 2021. This is good news; you can take the next 12 months to immerse yourself in the English language.

2. For free interactive exercises in grammar and in Plain English, please surf to https://plain-english-resources-and-exercises.netlify.app

3. Limited free offer of personal coaching for law students and bar examinees; for details, surf to https://famli.blogspot.com/2020/05/how-to-pass-bar-exams.html

« Last Edit: June 16, 2021, 08:35:55 AM by Gerry T. Galacio »