Law Schools

Examining The Bar Exam, Again

There's not much, if any, disagreement (except from the National Conference of Bar Examiners) that the current bar exam format sucks. 

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Given the tech issues with the bar exam last week, it’s time to think again — or still — depending upon which adjective you choose, about the exam: what it should look like, what it should test, and how quickly can changes be made (keep dreaming) to make the bar exam look like what the new lawyers need to know and do to hit the ground running. Not many successful bar examinees will wind up in Biglaw; that’s a matter of numbers and pedigree. Other newly minted attorneys will get positions in law firms of varying sizes (from solo practitioners to small firms to midsize firms). Still others will say “phooey” to working for anyone else and will strike out on their own, some by choice, others by no choice. For those who choose, it’s risky, but it may be the most satisfying. Still others will not have legal jobs at all. It’s happened before and it will happen again.

One of the issues with the present bar exam is that it doesn’t test for those skills that are most important to successful lawyering (and to personal satisfaction). Last October, the Institute for the Advancement of the American Legal System and Moritz College of Law at Ohio State University published a report called “Building a Better Bar.” I don’t think that there would be much, if any, disagreement (except from the National Conference of Bar Examiners) that the current bar exam format sucks.

Rote memorization is not how we practice law. Surveys conducted with new lawyers bear that out. Soft skills are equally, if not more, important. We can always look something up; we don’t necessarily know how to interact with clients and others. Soft skills include risk assessment, communication, and advocacy, as well as characteristics like integrity, work ethic, and resilience.

What we learn in law school is how to spot the issue, formulate the question(s), and then research the applicable law.

Yes, the bar exam tests how to work under pressure. That’s an important skill to have, especially when you are notified that the opposing counsel is going to go in ex parte for some purpose. Yes, there are time-sensitive deadlines, but not every matter you will handle will have a federal agent at the client’s desk with a search warrant. Not every matter will require an overdeveloped sense of urgency. With rare exception, lawyering is not like the old, old game show “Beat the Clock.” Dinosaurs among us will remember that show.

So, assuming that such scenarios are not everyday occurrences for most lawyers, what are the skills that lawyers need? How to test for minimum competence? In fact, what is “minimum competence?” And is the bar exam an accurate measure of that? What about the essays? The performance exam portion? The multistate?

“Minimum competency” is a floor, not a ceiling; it’s the level of knowledge and skills needed to pass the bar. It’s foundational, not aspirational. Hopefully, everyone wants to be more than “minimally competent” in a profession that demands much of us. Is the current bar exam a valid measure of attorney competence? I think it’s a valid measure of your ability to memorize, write quickly, spot the issues, and answer multiple choice (aka multiple guess) questions.

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Now that a week has passed since the exam, how many of you remember much of what you studied to take the exam? How often will you practice in a “closed book” environment? Not often, if at all, and it might even be malpractice if you did so without knowing what the current state of the law is.

In the past many months of COVID-19, adjustments were made for remote bar taking. Some were just ridiculous, such as what could be taken into testing sites (personal hygiene products). One adjustment in particular stands out: trying to prevent examinees from cheating by unrelenting eye contact with the exam software. That is not necessarily the right approach to preclude cheating. Witness that gaffe in last July’s remote bar exam debacle where the California Bar claimed that a third of the examinees (per ExamSoft) had cheated. A big stink ensued and rightly so, since most of that third were blameless and the claims baseless, but that exonerating news wasn’t front and center like the original story.

Of course, no bar exam has ever been without problems, be it remote or in person. Way back when I took the bar as a typist (long before PCs), the power went out in our testing site 10 minutes into the first morning session. Of course, there have been problems with remote testing, given the continuing issues with ExamSoft. And of course, once again, the blame has been placed on the test takers.

Right, that’s always the proper way to manage controversy. Take no responsibility for any missteps. And of course, what would any bar exam be, remote or otherwise, without horror stories?

Some things never change, do they?

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Newly admitted attorneys will find that they must be good jugglers, not just in practice, but in business marketing and advertising. What do you think the United States Supreme Court expected when, way back in 1977, it struck down the rules against attorney advertising in Bates v. State Bar of Arizona, holding that it was a form of commercial speech and thus protected by the First Amendment? How would those Supremes view lawyer advertising today? Are there any limits today on what’s appropriate attorney advertising? Should there be?

Has attorney advertising gone down the toilet? Your thoughts?

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 oldladylawyer@gmail.com.

 

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