How Would You Retool The Bar Exam?


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While we lawyers disagree about many things, one thing that all of us, whether lawyers of whatever vintage, law students, law professors, “thinking about law school” peeps, agree on: the nightmare that is the bar exam, that last hurdle to getting licensed (assuming you’ve passed the moral fitness test and whatever other things lurk in the shadows).

The bar exam: destined to freak out the most stoic, stolid, and calm. It strikes terror in the hearts and minds, even the most outwardly self-possessed. The bar exam: purportedly designed to test the minimum competency required to practice. And that’s the rub, what exactly is minimum competency? How to define it, how to test it, how to use it as a tool to determine who gets that license. How to decide what subjects should be tested. How to decide whether the exam should be in one day, two days, or longer. (Perish the thought, although when I took it in dinosaur days, it was a three-day exam.)

More than 30 states, along with D.C. and the U.S.V.I. have adopted the uniform bar exam. California has not. (A nationwide uniform bar exam might make it easier to argue for multijurisdictional practice, which would be something I would like to see along with many others.)

Although the bar exam is not a marathon, it feels like one. Everyone who finishes it is exhausted and broke. Is the juice worth the squeeze? That depends on who is asked.

Is the bar exam I took all those years ago obsolete? Yes and no. This is not a trick question. There’s much intellectual wrestling going on among law professors, bar administrators, and others interested in the quality of new admittees.

What should the bar exam look like? What should it test? Should it test what some call “rote memorization,” the reciting of legal principles? I think that memorization has its place because I don’t think you can analyze an issue without knowing what the law is to apply to the fact pattern in the question. However, I don’t think the bar exam needs to test whether we can recite the Rule Against Perpetuities.

Should the bar exam be “open book”? One could argue that the practice of law is “open book,” since we should look up what the law is before advising a client. Aha, say some, precisely the point, since “rote memorization” does not have any place in any practice. True, but isn’t there at least some reason for being able to “show what you know” on the bar exam? Reasonable minds can and do differ.

What about “soft skills”? Should those be tested on the bar exam? Can they be? How would you go about doing that? What would be the “soft skills” that should be tested?

Do the courses that formed the backbone of our legal education, and thus the bar exam, still merit inclusion on that test? Does “minimum competency” mean “bare bones” competency, or should it be something more than that?

Should areas of law that didn’t even exist at the turn of this century, let alone in my dinosaur days, be tested now? Should the bar exam remain an unwavering, unchanging monolith without acknowledging that times have changed, and the practice is pretty much unrecognizable today? Should there be more time to answer essay questions? More time to plow through the multiple-choice questions? (You need to be able to respond quickly to a judge’s question in court, but even then, you may be able to get time to brief the issue.)

There are major huddles going on as to what to do about the bar exam. Minorities don’t do as well on it, and as we become more diverse, we need more diversity among lawyers. (Not a new topic for me or for the many others who regularly rail about the issue; there’s a comfort level in being represented by someone who looks like you.)

I don’t think any idea, no matter how wild or crazy, should be off the table when considering how to test minimum competency, enlarge the pool of successful bar takers while maintaining applicable standards, and, yes, I know the cut score here in California is a huge sore point.

While I don’t know what the requirements are in other states for the CPA exam, California requires one year of work experience in order to obtain a CPA license. (Anyone for legal apprenticeship?) Also, since the average pass rate is 50%, applicants can retake those portions of the exam they didn’t pass the first time.

There’s no similar provision for bar examinees: it’s all or nothing. Should that change? I can hear the arguments against it, including administrative headaches, timing of exams, and student loan debt, among others, but we’ve got to think about innovative ways of changing the bar exam so that it better serves both the examinees and the public. Maybe testing in one “swell foop” is not the answer.

We have to find better ways to make the bar exam relevant to today’s practice and more representative of society, while still requiring minimum competency. We are thought to be smarter than most, at least we think we are. Let’s prove it. Step right up here with suggestions, no matter how silly or left field they may sound. We gotta start somewhere.


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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