The Legal Beat

What’s Wrong With The California Bar Exam Now?
Posted on Wednesday July 03, 2019

Late last month, the State Bar of California announced that it is going to ask those in the know (i.e., the practicing lawyers in this state) about the present and future of the profession here. No more talk from those who have never practiced or left practice behind to teach or do any of a million other things, equally valid, but not the practice of law. The bar wants us “tell it what we really think.” With pleasure.

Dubbed the California Attorney Practice Analysis (“CAPA”), those of us who sign up to participate — and yes, I’ve already done so — will receive one hour of MCLE credit for completing the survey. Since I am due to report my MCLE hours as of January 31, 2020, I am more than happy to participate, and I would imagine that many of the members (whoops, we’re now “licensees”) will oblige.

The purpose of the study is to assess the relevance and content of the California Bar Exam. California has the second highest cut score in the country, second only to Delaware. Two years ago, attorneys surveyed said to leave the 1440 cut score where it was.

However, recent passing rates have been dismal, cringeworthy, disappointing, bewildering, and dispiriting. Dispiriting not only for the thousands of examinees who didn’t pass, but also the law schools educating them, and the legal community at large, which has wondered “wtf.” So, the Board of Trustees needs to know what’s what, why bar passage rates have been so dreadful, and what to do about that.

There’s no question that the practice of law has changed tremendously since the dinosaur days when I took the bar. “A fresh look at what entry attorneys need to know,” says the bar, will help it ensure that it is keeping up with that change.

The State Bar press release says that “the project will collect empirical data on how attorneys use their knowledge and skills to perform routine tasks in their legal practices.”

Isn’t one of the fears that non-legal service providers, AI vendors, and others are already poaching on the “routine tasks”? Are they going to make those “routine tasks” obsolete for new lawyers? And if so, what will the bar exam measure? What should it measure?

Will the bar exam need to reinvent itself every decade or so to keep up with how the law evolves over time? Are there certain “bread and butter” areas of doctrinal law that lawyers will always need to have at least a passing knowledge of in order to be able to issue spot, which is really what the bar exam is all about?

The CAPA project has four parts to it:

1. A panel of practicing attorneys will assist in defining the classification of knowledge and skills as the basis for creating the survey. In other words, what does one need to know to get a passing score on the exam?

2. All California licensed attorneys will receive a survey which will collect data on the knowledge and skills required to perform daily tasks. What are those “daily tasks”? How much of an attorney’s workday is truly spent practicing law, rather than networking, billing, chasing receivables, and other administrative activities that have zip to do with the practice of law? How much time is spent using knowledge and skills that are not legal, e.g., accounting, IT, unjamming the copy machine, and those ever elusive “soft skills,” such as managing and/or supervising other lawyers and support staff? If this article is correct, saying that lawyers bill an average of 2.3 hours daily, then the rest of a lawyer’s workday is consumed with nonlegal matters. Perhaps lawyers in Biglaw spend their entire day using knowledge and skills to perform daily tasks, but for solos and other small firm practitioners, that’s simply not the case.

3. CAPA will collects data through one-time survey responses and the ESM approach, the Experience Sampling Method, in which participants provide multiple responses throughout the workday. The ESM “provides more detailed and accurate information than one-time questionnaires.” So says the CAPA fact sheet.

4. Practicing attorneys will participate in focus groups to provide feedback and validation of the survey findings. But what if the focus groups don’t validate the survey findings? I’m not a social scientist (duh) and I took statistics pass/fail in college (thank goodness) but I do know enough about numbers that they can say almost anything, depending upon how the questions are framed.

A final report is due by year’s end. I hope, along with everyone else who has even the tiniest bit of concern about bar passage rates, that this report will be definitive on what the State Bar needs to do to improve the pass rate, how to do it (simply lower the cut score?), and a timeline for implementation of recommendations. We’ve seen many reports on so many topics over the years that seem to go nowhere. They are praised, applauded for the hard work, then shelved. This topic has an urgency that cannot wait any longer.

Everyone in the profession has a stake in the report. Every client, present and potential, has a stake in the report. Every law student has a stake in the report. Every law school and legal educator has a stake in the report. The Bar has an obligation to get this report right and then make whatever recommendations are necessary. It may be determined that the cut score should remain at 1440, but we need to know how and why that determination is made.

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].