Legal Law

Expensive Santa: Right here's a want checklist for a greater bar examination

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 terribly rising number of COVID-19 cases here in California and the threat (again) of a statewide lockdown by Governor Gavin Newsom, the decision to put the February exam online makes sense.

At least it wasn't done at the last minute or as a moving target to keep up with what was happening over the summer. So there is now clarity for the test takers planning to take the February bar. It remains to be seen whether the problems and complaints in the online exam will be adequately resolved before the February exam. And we will only have the results of the October test (fka July) after the holidays.

I think we can all agree that the bar exam currently being held is a failure when it comes to testing the skills and knowledge new practitioners need (i.e., the standard of "minimum proficiency"). We all know that the bar exam is a memorization exercise, like the rule against ages, the rule in Shelley's case, the majority and minority rules in different jurisdictions and how they vary, etc. etc. etc. It is the type of one Exam where you stuff your head with these different rules and recitations and once the exam is over you shake your head and all the different principles that fly out. Many are never used in practice.

There's a new study from the Institute for the Advancement of the American Legal System that I think should be seriously considered in order to retool a terribly outdated and ineffective exam. Under the title Building a Better Bar Exam, Twelve Steps to Minimum Proficiency, there is an in-depth look at where the bar exam took place and where to go to demonstrate the minimum proficiency required by new lawyers. Although the bar exam has been around for more than a century, the report states that there has never been an agreed evidence-based definition of minimum proficiency. One aim of this study is to define the minimum level of proficiency for the purposes of the bar exam, and it did just that.

Unsurprisingly, for at least those of us who passed the bar exam at any time we passed it, the study data resulted in five “insights” about the minimum proficiency level. I put "Insights" in quotes because these data points are obvious to me. What are you? Closed audits do not adequately measure minimum proficiency. (Fixed.) Time constraints are also useless. (Fixed.) Multiple Choice Questions “… bear little resemblance to the cognitive skills that lawyers use. (Redefined.) Written proficiency testing is a better way to test minimum proficiency (agreed), and last but not least, practice-based assessments based on clinical performance can be an effective tool for assessing minimum proficiency (also agreed). Is anyone really surprised at these conclusions? I don't think so, or they shouldn't be.

The study defines minimum skills as twelve interconnected “building blocks”.

What are you? Most, if not all, won't or shouldn't surprise us:

The ability to act professionally and in accordance with the rules of professional conduct; Understanding of the legal processes and sources of law as well as the threshold value concepts in many subjects; the ability to interpret legal material; interact effectively with customers; Identify legal issues, conduct legal research, communicate as an attorney, responsibly manage a work-related workload, deal with the burdens of legal practice, and engage in self-directed learning. Variations of these building blocks are what we do every day, even if we are not aware of them. But again, it's no surprise that all of the memorization we do for the bar exam "can distract lawyers from the minimum skills they need".

The study offers 10 recommendations for anyone and every institution involved in bar exams on the path to evidence-based lawyer licensing. First of all, and I don't think anyone will disagree, written tests are not a good way of assessing legal proficiency. Second, ditch multiple choice exams. (As someone who never did well on multiple choice, I'd love them to bite the dust.) The third recommendation is to swap written essays for more proficiency tests. The fourth recommendation is that if jurisdictions insist on using written essays and / or multiple choice tests, they should be open.

Comments in the study on memorization for the exam made it clear that legal practice is not based on memorization, but on the contrary. How many times have you given an off-the-shelf answer without first checking that your memory is correct and that the law has changed since you originally learned the rule? Possible wrongdoing here? Look up is what lawyers do and should be doing.

Another recommendation: if written exams are used, more time should be allowed to answer. I remember fifty-two and a half minutes ago for each essay question. Not much time.

Several other recommendations include coursework in client relationships, negotiation, access to justice, and supervised clinical and / or external work, all important components of minimum competency.

So what do you think In my opinion, there is consensus that the bar exam currently being held is broken. Is this study something useful to build on, or will it just sit in dusty scraps? The study is based on the recommendations of new lawyers and their managers, not legal educators or bar examiners. These new attorneys and their managers had "boots on the ground" and their experience should determine what the future bar exam will look like. Let's not let educators and examiners dictate the future contents of the bar.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers working as a lawyer in a kinder time. She has had a diverse legal career, including positions as deputy prosecutor, a one-on-one practice and several high-level internal appearances. She now teaches all day what gives her the opportunity to see dinosaurs, millennials, and the people in between – it's not always polite. You can reach them by email at oldladylawyer@gmail.com.

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