"War! What Is It Good For?"

My oldest son recently asked me to play War.

It’s not a particularly difficult or interesting card game. But anytime my son voluntarily gives up screen time to do something else, I’m all in, even in an abnormally competitive way.

If you haven’t played War before (but, really, who hasn’t), or, more likely, if you’ve forgotten the rules of the game, here it is:

• A full deck of playing cards is divided evenly between two players.

• Each player places his stack of cards face down on the table.

• Each player, at the same time, turns over the top card from the stack. The player with the higher card takes both cards and puts them, face down, on the bottom of his stack.

• However, if the cards are the same rank, then it’s War. In the variation my son and I play, each player turns over three cards face down and one card face up (some variations turn over one card face down). The player with the higher cards takes both piles, resulting in a collection of 10 cards. If the turned-up cards are again the same rank, each player places another three cards face down and turns another card face up. The player with the higher card takes all 18 cards, and so on.

• The game ends when one player has won all the cards.

My son and I played several rounds.

I’d plopped down a King, but he’d win an Ace.

He’d revealed a Four, and he’d take the cards after I confidently slammed down my own card, only unveiling a dismal Deuce.

One time, we engaged in War with a pair of Aces. Aces! In nearly every other situation, an Ace would win against 48 out of the 52 cards in deck. But not this time. So as required by the rules of War, we put down three cards face down and placed the fourth card face up.

My fourth card was a Ten.

Okay, I thought. Not a bad card. But not a great card either. But, really, only one of the face cards could beat me. Or an Ace. But what are the chances of my son having another Ace so close together?

My son: Jack. Boom!

He won the War, took all 10 cards from the deck, improved his stack of cards with the addition of another Ace, and he eventually won the game.

Now, what does the card game of War have to do with the bar exam?

You might say "absolutely nothing," as Edwin Starr answered in his 1970 song, "War! What is it good for?”

But, in fact, the card game has everything to do with essay and MPT grading—and, no, it’s not that bar exam writing requires absolutely no skills, like War. Of course, not! That's. Not. The. Case. At. All.

Rather, it's all about relative strength.

In War, it doesn’t really matter what card you play. What’s more important is what card your opponent plays. It doesn’t matter if I put down a King. That King will still lose if my opponent has a stronger card, like an Ace. Similarly, my Four or Five—normally a weak card—could actually be a strong card as long as my opponent plays a Two or Three.

On the bar exam, most jurisdictions, particularly jurisdictions that administer the Uniform Bar Exam, use what’s called relative grading when it comes to grading the MEE and MPT.

What is relative grading? According to the National Conference of Bar Examiners:

Relative grading training helps graders identify consistent standards in ranking papers and then apply those standards to put papers in piles according to their relative strength. The 1–6 scale used at the workshop simply means that a score of 6 is reserved for the best papers among all answers assigned to a particular grader. It is better than a 5, which is better than a 4, and so on, all the way to 1—a paper that is among the weakest papers. Relative grading means that in any group of answers, even if no single paper addresses all the points raised in an item, the strongest papers still deserve a 6 (using a 1–6 score scale). They do not have to be perfect nor necessarily deserve a true A or 100%. Using the same principles, a paper need not be completely devoid of content to get a 1 if the other papers are strong.

So when it comes to essay and MPT writing on the bar exam, it’s not about writing a good response. Rather, it’s about writing a better response than others.

When I meet with unsuccessful examinees, I sometimes hear from confused examinees who did not understand why they received a 1 or a 2 on an essay that they believed they aced, or why they received a 5 or a 6 on an essay they believed they tanked. Aside from their own misconceptions about the strengths or weaknesses of their responses, part of their confusion may have resulted from the fact that they are not considering the quality of their responses in relation to the quality of the other responses.

Of course, examinees need to write substantively solid answers. Drafting accurate responses that are well-supported by legally significant facts from the test question is the best way to improve written scores. But paying attention to foundational aspects of good legal writing—like structure, organization, readability, and clarity—in addition to minimizing grammar, punctuation, and capitalization mistakes can convince a grader to add another point to the score and move a response from a “4” to a “5” pile. Increasing an essay score one point on a 1-to-6 scale can have a significant impact on an examinee's overall bar exam score.

So when you’re in the midst of bar preparation, even if you’re confident that you know the material for a particular MEE response, don’t take studying for the MEE for granted and don’t neglect completing additional practice essays. There’s always room for improvement.

Improving scores on the MEE and MPT doesn’t have to be as difficult as Albert Einstein’s Theory of Relativity.