The Legal Beat

Dear Santa: Here’s A Wish List For A Better Bar Exam
Posted on Thursday December 03, 2020

At least two states have already decided that the February bar exam will be online. One is North Carolina, and number two is California. Given the dreadful increasing number of COVID-19 cases here in California, and Governor Gavin Newsom’s threatening a statewide lockdown (again), the decision to move the February exam online makes sense.

At least it wasn’t done at the last minute or as a moving target trying to keep up with what was happening in the summer. So, there’s some clarity now for those test takers planning to take the February bar. Whether the online exam will have its kinks and complaints resolved sufficiently in advance of the February exam is yet to be seen. And we won’t have the results of the October (fka July) exam until after the holidays.

I think that we can all agree that the bar exam, as presently administered, is a flop in terms of testing the skills and knowledge that new practitioners need to have (i.e., the standard of “minimum competence”). We all know that the bar exam is an exercise in memorization, such as the Rule Against Perpetuities, the Rule in Shelley’s Case, the majority and minority rules in various jurisdictions and how they vary, etc., etc., etc. It’s the kind of exam where you cram your head with these various rules and recitations and as soon as the exam is over, you shake your head and all those various principles coming flying out, many never to be ever used in practice.

There’s a new study out by the Institute for the Advancement of the American Legal System that I think is worth seriously considering as a possible way to retool a hideously outdated and ineffective exam. Entitled Building a Better Bar Exam, Twelve Steps to Minimum Competence, it’s an exhaustive study of where the bar exam has been and where it needs to go if it is to demonstrate the minimum competence required of new lawyers. Although the bar exam has existed for more than a century, the report says that there has never been an agreed-upon evidence-based definition of minimum competence. One goal of this study is to define minimum competence for purposes of the bar exam and that’s what it has done.

Not surprisingly, at least to those of us who have suffered through the bar exam at whatever point in time we took it, the study data led to five “insights” about minimum competence. I put “insights” in quotes because to me, these data points are obvious. What are they? Closed book exams don’t adequately measure minimum competence. (Stipulated.) Time constraints are similarly useless. (Stipulated.) Multiple choice questions “… bear little resemblance to the cognitive skills lawyers use. (Again, stipulated.) Written performance tests are a better way to test for the minimum competence (agreed), and last, but not least, practice-based assessments based on clinical performance can be an effective tool for assessing minimum competence (also agreed). Is anyone genuinely surprised at these conclusions? I think not, or they shouldn’t be.

The study defines minimum competence as twelve interrelated “building blocks.”

What are they? Most, if not all of them, will be no surprise to us, or shouldn’t be:

The ability to act professionally and in accordance with the rules of professional conduct; an understanding of legal processes and sources of law and threshold concepts in many subjects; the ability to interpret legal materials; interact effectively with clients; identify legal issues, conduct legal research, communicate as a lawyer, manage a law-related workload responsibly, cope with the stresses of legal practice, and pursue self-directed learning. Variations of those building blocks are what we do every day, even if we are not consciously aware of them. But again, no surprise, all that memorization that we do for the bar exam “may distract lawyers from the minimum competencies they need.”

The study offers 10 recommendations for everyone and every institution involved in bar exams to consider on the route to evidence-based lawyer licensing. First off, and I don’t think anyone will disagree, written exams are not suited to assessing lawyer competence. Second, ditch multiple-choice exams. (As one who never did well on multiple choice, I would be delighted to see those bite the dust.) The third recommendation is to swap written essays with more performance tests. The fourth recommendation is that if jurisdictions insist upon using written essays and/or multiple-choice tests, they should be open book.

Comments in the study about memorization for the exam made it clear that the practice of law does not rely on memorization, in fact, to the contrary. How many times have you given an off-the-cuff answer without checking first if your memory is correct, and whether the law has changed since you originally learned the rule? Potential malpractice here? Looking everything up is what lawyers do and should do.

Another recommendation: if written exams are used, there should be more time given to answer. I remember very well way back when we had fifty-two and a half minutes for each essay question. Not a lot of time.

Several other recommendations include coursework in client relations, negotiation, access to justice, and supervised clinical and/or externship, all important components of minimum competence.

So, what do you think? My sense is that there is agreement that the bar exam, as presently administered, is broken. Is this study something useful to build on or will it just sit in credenzas gathering dust? The study is based on the recommendations of new lawyers and their supervisors, not legal educators or bar examiners. Those new lawyers and their supervisors have had “boots on the ground,” and their experiences should guide what the bar exam looks like going forward. Let’s not let educators and examiners determine the bar’s future content.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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