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 Jonathan Corbett, Civil Rights Advocate

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Is Pushing Someone on Train Tracks “Attempted Murder?”

I have to admit: when real life presents hypotheticals that are academically interesting for lawyers, I get a little bit excited.  Last year, a man named Kimani Stephenson made one for the law books when he pushed a woman onto New York City subway tracks.  The victim described it as follows:

“This guy, he came up behind me and he grabbed one of my boobs with one hand, and he grabbed my vagina. I told him to fuck off, and he pushed me onto the train tracks,” she recalled.

…

“There was no train coming, thank God,” Currie said. “I keep playing the scenario over in my head. There weren’t any MTA police on that particular track, so I don’t know what I would have done if there hadn’t been bystanders.”

Clearly, the defendant is guilty of assault and other crimes, but is he guilty of attempted murder?

At common law (the law we inherited from the British), attempted murder requires 2 things: 1) taking an action towards the death of someone (a “substantial step”), and 2) the intent that your actions result in the death of that person.  That second part is called a “specific intent” requirement.  That is, it’s not enough that you did what you did on purpose, but rather that you must, in your own mind, intend a specific result.  Modern New York law on the matter doesn’t substantially deviate from the common-law view.

The first element is not very interesting: pushing someone on a train track is undoubtedly a substantial step towards murder.  The second element is where the fun is.  Like any good law school essay question, you can argue that specific intent both ways.  You can argue that one doesn’t push someone onto train tracks unless they want them to die.  However, if your law school essay doesn’t also pick out the words, “There was no train coming,” you lost major points on this question.  The defense will argue that pushing someone onto an empty train track is unlikely to cause death and shows that the defendant didn’t actually intend that the victim die from the actions.

But New Yorkers love throwing the book at the bad guy, and so when Manhattan ADA Maxine Rosenthal decided to press attempted murder charges, the local Reddit community cheered:

Reddit Does Not Like Kimani

…and I was mocked for being a soft on crime or ignorant on the law, including by several “Internet lawyers,” for trying to explain the above…

too_soft

Unfortunately, no charity will be getting a $500 donation, as a Manhattan jury acquitted Mr. Stephenson of attempted murder last week:

“We felt he acted in a fit of rage and he wasn’t thinking enough to have premeditated anything,” said juror Catherine Wald, 64.

“There was no argument, proof or any evidence he had intent in the moment to kill her even though we all got convinced he was the perpetrator,” added foreman Dmytro Zhuravtsky, 44, who works in quantitative research at a large financial institution.

Fear not: the perpetrator still faces 25 years in prison on the first degree assault charge (which, if I’m reading correctly, comes with a 5 year mandatory minimum).  But, say it with me: it’s not attempted murder unless the defendant actually intended that the victim die.  On the situation presented here, I don’t know how the ADA intended to prove the specific intent beyond a reasonable doubt.  The charge should not have been brought.

The ADA and defense counsel were contacted for comment but have not replied as of the publication of this story.

9

Three Down, One to Go: Final Year of Law School at NWCU

NWCU Enrollment Documents
My final course enrollment documents, for NWCU’s 4L program.

I announced that I was entering Northwestern California University‘s law program on November 16th, 2014, which was also the four-year anniversary of my first civil rights litigation.  Now three years later, I’ve taken my 3L final exams and I’m still on track to graduate in November 2018, attempting the California Bar Exam in February 2019.

I feel like my previous review of the school + study tips still accurately reflect my thoughts on the program.  tl;dr: all the tools to study the law are there, but there’s no one holding your hand to use them.  Proceed only if you have a passion for studying the law, because otherwise you won’t be able to stay with the 2+ hours per day, every day, for 4 years.

My school year having concluded, especially on a Friday, it’s time for a few beers…

12

State Bar of California Agrees to Re-Write FYLSX Grading Description

Earlier this year I sued the State Bar of California for incorrectly stating that their “First Year Law Students Exam” consists of two sections — a multiple choice and a written section — that were graded equally.  In fact, the scaling methodology used to attempt to normalize the scores against previous sittings of the exam effectively made the written worth 37% more than the multiple-choice on the exam I sat for in June 2016.

Today I’ve reached a settlement agreement with the State Bar to re-write their grading policy to more accurately describe how the exam is actually graded.  The updated policy description will disclose to all preparing for the exam that:

Through a process known as “equating”, the multiple-choice raw scores will be converted to a scale with a theoretical maximum of 400 points. Because there are multiple forms of the examination, this process adjusts for the possible differences between forms and administrations of the examination in the average difficulty of the particular version of the examination that the applicant takes.
. . .
The raw essay scores will be converted, or “scaled” to a distribution that has the same mean and standard deviation of multiple-choice scale scores.

Although the process of normalizing to a mean and standard deviation is far from standard (math described here) and every mathematician I’ve spoken with has told me the accepted practice for grade scaling is to take the highest score earned, create a formula that makes it the highest score possible, and scale all other scores in line with that formula, the State Bar is free to use whatever formula they want so long as they don’t mislead exam takers.

Anyway, I’m pleased with the outcome and hope that future law students benefit from knowing that they better hit the sample essays much harder than the practice MCQ’s!  If you’re currently preparing, I also made a detailed post of study tips.

5

How the California Bar Actually Grades the First Year Law Students’ Exam

fylsx-real-gradingI’ve made a few posts discussing California’s First Year Law Students’ Exam (the “FYLSX”), noting that I failed my first attempt by a fraction of a percent when the Bar applied a grading formula different from that which was advertised, and then, using the knowledge gained of their altered grading scheme, passed on my second try so spectacularly that the Bar published one of my essays as an example of how to write their exam.  I also briefly mentioned that I — as I’m known to do — filed suit to ask a judge to effectively require them to grade like they say they will and be more transparent about the exam and how they grade it.

The particular dispute was that they advertised that the multiple-choice section and the essay section of the exam would be “converted to the same 400-point scale” in order to “give[] these sections equal weight.”  When I received my score report from the first exam, I noticed that the scaling formula used by the bar resulted in it being impossible to score more than about 362 points even if every question was answered correctly, and likewise, it was possible to score far more than 400 points on the essays.

The attorney for the Bar assigned to the case disclosed additional documents, formerly considered to be secret and until now never disclosed to law students, to me yesterday that all but flatly admit that not only were the sections not weighted equally, but they also didn’t use a 400-point scale!  See if you can follow this tortured grading system they describe, because it took me several reads to figure it out:

Multiple-choice raw scores (i.e., number of items answered correctly) were equated to the June 1998, 2011, and October 2013 exams using 21 items that were common to each of these exams.  The equating formula was as follows:

Multiple Choice Scale = (3.4092 x raw multiple-choice score) + 21.6267

…

The candidates’ raw total essay scores were scaled to a score distribution that had the same mean and standard deviation as their multiple choice scores using the following formula:

Essay Scale = (2.3536 x raw essay total score) + -442.389

A candidate’s total score was the sum of that candidates’ multiple choice and essay scores.

What I gather from this is that 21 of the 100 multiple choice questions were repeats of previous years, and based on how well students did on those 21 questions, their grade on the entire 100 questions was curved.  Then, they calculated the average multiple choice score and the standard deviation, and curved the essay scores such that the average student gets the same score on that section as the multiple choice, and the score distribution was normalized to the same standard deviation.

From this it is clear:

  1. This has nothing to do with a 400-point scale per section.  The number 400 does not even appear in this internal document regarding their grading scheme.  The scale is created simply by comparing this group’s scores to previous scores and trying to curve it accordingly.  You’ll notice that if you plug in “100” as your raw multiple-choice score (a perfect 100 out of 100 questions) into the formula provided, the maximum score attainable is 362.5467.  Not 400.
  2. The sections do not have “equal weight.”  Saying that the average test taker got the same score on both their multiple-choice and their essay questions is not the same thing as saying “half your grade comes from multiple-choice, and half from the essays.”  Whether the essays count more or less than the multiple-choice section depends entirely on how well the other students do on their exams.  This is not equality, it is normalization.

So, for those taking the June 2017 exam, know this: on both exams I sat for, the essays counted far more than the multiple-choice.  You should therefore be spending far more time studying how to write a good essay than how to select A, B, C, or D correctly, unless your multiple-choice practice exams are turning out abysmally (for more study tips, see my previous post).  Hopefully by the October 2017 exam, a judge will have “persuaded” them to abandon this system.

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California Bar Posts My Essay as Example of How to Write Exam Answer

fylsx_q2I was pretty excited to be tipped off by one of my law school professors that the California Bar’s “Selected Answers” for the last administration of the First Year Law Students’ Exam were posted and that one of them looked familiar.

Each sitting of the exam, every student writes 4 essays, and out of the thousands written they picked mine for “Selected Answer A” to Question 2 of the October 2016 exam.

Pretty cool considering I’m presently suing the bar over the way they arbitrarily weight the essay sections and multiple-choice sections of the exam differently, despite promising that they don’t, and then refused to provide documents when confronted with a public records request (original post, new amended complaint).  It’s also amazing how 85 out of 100 was apparently the best score on this exam question, further highlighting the absurdity of their grading.  Hopefully I’ll be able to bring some transparency to their grading process so that law students can get an accurate idea of what to study and how their knowledge will be measured.

Nonetheless, I’m glad they like my writing! 🙂

7

Jon Corbett Available for Legal Assistant / Research / Paralegal

For the entirety of my adult life, my day job has been in technology.  Now in my third year of law school and having written over a thousand pages of federal complaints, motions & oppositions, discovery requests & responses, and appellate documents in my time as a civil rights advocate (most of which have been posted on this blog), I’m looking to begin my transition to doing law professionally.  I’m available to small firms and solo practitioners on either a full or part time basis.  Naturally, a preference for any firm that does civil rights advocacy (Civil Rights Act, Bivens actions, FTCA, ADA, employment discrimination, etc.), but I’m pretty good with contracts, torts, and consumer rights, too.

Please pass to your lawyer friends and contact jon [at] professional-troublemaker [dot] com.

0

Passing the California First Year Law Students’ Exam, a/k/a The Baby Bar, FYLSX, FYLSE, Your Second Year Nightmare

[Edit 12/8/2017 — Welcome October 2017 FYLSX test takers!  It seems CalBar status pages have been updated.  If yours wasn’t, you probably didn’t pass.  It’s Friday — go out, have a drink or four, and start studying again in a week or two.  Tips are above, and, push that Follow button on the right side of the page!  I’m finishing my 4th year and regularly blog about issues relating to law school that you’ll want to read…]

Last week I got confirmation that I passed (indeed, annihilated) the October 2016 California First Year Law Students’ Exam!

The Exam

For those not in the know, this test, cutely dubbed the “Baby Bar,” is required for all California law students who are not in an ABA-accredited law school. As the ABA, being the grumpy old people that they are, refuses to accredit any online law schools, those like me and want to do law school while having a job (or traveling the world, raising a family, or whatever else makes you happy) are stuck taking the Baby Bar.  The exam is taken after you’ve finished your first year. It is offered every June and October, and you must pass within 3 sittings for the exam (e.g., I finished my first year in November 2015, and therefore was required to pass either June 2016, October 2016, or June 2017). If you don’t pass, your law school studies are over until you do, and when you eventually pass, you can receive law school credit only for your first year.

The exam is 100 multiple choice questions and 4 essay questions, allegedly each representing half your grade, at the same difficulty level as the real Bar Exam. The only difference is that the real Bar Exam tests 12 subjects instead of the 3 on the Baby Bar: criminal law, tort law, and contract law. The nice thing about this is that you can use actual past Bar Exam questions as prep for the Baby Bar. The bad thing about this is the pass rate for the Baby Bar is typically in the range of 20% – 25% — the odds are against you from the start. And, the cost to take the exam including all fees is $777, plus travel to Los Angeles or San Francisco if you’re not local.

My First Attempt

In the spring, I was getting ready for the test and taking practice exams, and from what I could see, my scores were in the passing range. Confident, in June I went to Oakland and sat for the Baby Bar exam, which felt pretty good upon taking it. The exam takes 45 days to grade, and in early August I got my results: failed by 1 percentage point.

I was disappointed and a bit surprised (although with a pass rate of 20% – 25%, not passing the first time is not exactly unexpected), since all the practice exams said that I was doing great on the multiple choice and ok on the essays. When I reviewed the written score report, the answer became clear: the Bar’s curving of the exam effectively made the essays count significantly more than the multiple choice.  My multiple choice received nearly a perfect score, but the bar examiners did not like my essays. This was frustrating since the State Bar specifically published that the sections would be given “equal weight:”

An applicant’s total score on the examination is the sum of an applicant’s converted scores on the multiple-choice and essay sections.  This step gives these sections equal weight in determining the total score.

The State Bar lies!

I tried appealing my grade to the State Bar since it would clearly have been passing had they weighted equally as they had promised, but they wouldn’t hear it.  So, it probably won’t surprise you, if you’re a long-time reader, that I’ll be filing a small lawsuit to get my exam fees back since the exam I was given was not the exam advertised. 🙂  But, I digress…

My Second Attempt

To fix my essay writing, I did two things:

First, during the previous sitting, I hand-wrote the exam rather than typed it.  The Bar charges an extra fee for the “privilege” of typing your exam, and I figured it was better to rely on pen-and-paper and avoid any technical issues that day.  But, quite simply, I can type more words per minute than I can hand-write, and on this exam, you need to be working as fast as possible.  I think if I had typed the June sitting, I probably would have passed (being 1% away from a passing score, pretty much any improvement at all would have made the difference!).  Seriously, do not hand-write this exam!

Second, I spent time going through several past exams, writing out the answers, and comparing them to the model answers that the State Bar published to figure out what I had missed.  This also gets you a feel for how the State Bar likes to see answers presented to them.  There’s a pattern, and it seems that following it may be a good idea. 🙂

The end result was that my multiple choice score stayed about the same, but each essay increased in score by, on average, almost 15 percentage points.  I could have actually written my 4th essay on “why it’s important to advertise the correct scoring methodology when you’re giving exams to law students” and taken a 0 and still passed.  (Actual essay questions for October 2016 FYLSX).

Study Tips

Here’s what I recommend for practice (these products are what I actually used and I receive no compensation for listing them):

1) PMBR Audio Lectures. PMBR is a company that, before they were bought by Kaplan, produced awesome bar review lectures. If it’s not on the Bar Exam (and thus not on the Baby Bar exam), it’s not covered, allowing you to focus on only the material that you need to know. Their criminal, tort, and contract lectures total about 14 hours and are by far the best use of 14 hours spent on reviewing substantive law. The easiest place to find their CDs is on eBay or Amazon.com (search “pmbr contracts audio,” or torts, criminal), as they don’t seem to offer the CDs as a stand-alone product anymore.

2) Fleming’s Baby Bar Review. Prof. Fleming runs one of the very few courses that targets the Baby Bar specifically. He has take-home materials, but for about $300 you can take a 3-day, in-person workshop where you’ll review substantive law, practice writing essays in exam-day conditions, and are given the opportunity to take home 6 practice essays which Fleming’s will grade for you, along with detailed feedback, for no additional charge.

3) AdaptiBar. Adaptibar licenses official Multistate Bar Exam questions from the National Committee of Bar Examiners (NCBE) and allows you to practice the multiple choice section on their Web site. The NCBE doesn’t actually write the questions for the Baby Bar, but they are substantially similar. Great for both getting an idea of how you’re doing and for learning what you need to study more of.

4) The Famed 1980 Exam. While the California Bar releases every Baby Bar’s essay questions and answers, they have only released one multiple choice exam ever — from 36 years ago! To be perfectly honest, this is because they are lazy and re-use questions from year to year, so if they released every exam, they’d have to re-write them. But, if you take the 1980 exam as practice and then take the next Baby Bar, it will astonish you how many questions they still re-use with only minor variations. You’d think for $777 per test taker they’d be able to afford to come up with fresh material.

5) Past Essay Exams. Take the questions, write them in an hour each, and compare your answers to the practice answers. They’re showing you exactly how they want it done. Do it that way.

…and finally, make sure you pay the laptop fee and type the exam, and if your typing is slow, learning how to type faster should be a part of your studies (you’ll need that as a lawyer anyway!).

143

Two Years In at NWCU Law — Updated Review & Tips for New Students

I started law school on November 16th, 2014 at Northwestern California University School of Law, one of the few online law schools thanks to California’s relatively progressive stance on legal education. I wrote a review a few months in, noting that all seemed well so far. Now that I’ve passed my 2nd year final exams in my 4 year, part-time program and thus broken the half way mark, I think an update is well-deserved.

Some thoughts on the experience:

First, if you expected that online law school would be easy, you’ve miscalculated. Each course, taken over the full length of the year, requires about 2,000 pages of reading and comes with several assignments to be completed. At 4 courses per year, you’re looking at about 8,000 pages, or 22 pages per day (roughly an hour — there’s no speed reading law school texts!) if you study 365 days per year. It’s very easy to fall behind, and to be perfectly up-front, about 70% of students who start their first year at NWCU do not make it to their second year. This is an online degree with no required class time, and there is no one there to let you know that you need to pick it up a notch until it is too late. You must pace yourself, as the difficulty of the final exams is on par with the difficulty of Bar Exam questions for the relevant topic, so there’s no softball testing.

Second, although there’s no requirement to attend online classes (you could read your casebooks and outlines and pass, if you learn well by reading), they exist and are useful. You can pick and choose from several time slots that cover the subjects you’re taking, and there’s no requirement to attend every week. Come when you can, no penalty when you can’t. There are also discussion boards for each subject where you can interact with other students. Also not required, but extra credit is given to those who regularly contribute in online classes and in the forum. You want that extra credit — it makes a big difference.

Third, start with the understanding that you don’t know how to write an essay for law school. You can’t simply read the instructions on the midterm or final exams and start typing, expecting to produce the results necessary. This applies even though I know quite well how to write legal briefs in the federal court system: law school writing is a different style altogether. If you want to pass, in my opinion you must complete the “How to Write an Essay” activity that the school offers in the online forums, as well as review passing answers for similar essay questions to get a feel for how they look (see below). This is not required by the school, but it very much should be, because you won’t pass otherwise.

Fourth, the goal of the school during your first year is to prepare you for the California First Year Law Students’ Exam — the “Baby Bar.” The Baby Bar is taken by students in California non-ABA law schools (as every online law school is) who have completed their first year, and you are, essentially, required by the state to pass it within a year and a half of the end of your first year. It is the same difficulty level as the real Bar Exam, but only covers 3 subjects — those you are studying in your first year — instead of 14. The NWCU midterm and final exam questions track the Baby Bar questions fairly well (I’d say the NWCU questions are actually slightly more difficult), and California publishes the essay questions and answers from past Baby Bar exams. The pass rate for the Baby Bar is typically in the range of 20% – 25%, so keep in the back of your mind that you’ve got to not only retain, but enhance, all of your first year knowledge even after you finish your first year, until you take and pass the Baby Bar. (A separate post about the Baby Bar is soon to come…)

So, prospective students: don’t start if you’re not 100% committed, because you will fall behind and waste your time and money when you can’t finish your first year. But, if you can stay on top of things, NWCU is the best value in legal education by far: I’ll have a law degree for less than $15,000 total, while traditional schools charge more than that per semester.  Current 1L students: really really learn how to write essays, as that is 100% of your grade at NWCU and roughly 60% of your grade after grade scaling for the Baby Bar. Do the “How to Write an Essay” activity, review past Baby Bar answers, and make sure you write at least one practice essay (while timing yourself — 1 hour!) for each subject. NWCU offers a practice grading service for a really nominal fee, which is very much worth it.

29

Five Year Anniversary

It’s tough to imagine it’s been 5 years since this journey started, but a quick look back to post #1 shows that I filed my first lawsuit against the TSA on November 16th, 2010.  There are a few things going on:

  1. Tomorrow I take my first year law school final exams!  Very excited. 🙂
  2. My suit against the TSA’s international security interview program is slowly moving forward, as the TSA has finally (10 months and 2 motions later!) filed the “administrative record” that underlines the bases for their decision to implement the program.  More on that coming soon.
  3. My draft legislation to ensure that the TSA can be held accountable when it oversteps its bounds is almost done, at which point I’m going to work on getting some partners on board to submit the bill to Congress.

Thank you for 5 years of support, guys… it’s been awesome. 🙂

3

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