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Last Gasp of the Bar Exam?

— August 24, 2015

Last year’s bar exam passage rates hit an historic low. We’re waiting for September and the release of July’s bar scores. Another low passage rate may confirm the NCBE’s opinion that law students are getting dumber. Those of us in the real world think that the low scores are showing that the system is broken and that many qualified would-be lawyers aren’t getting the chance to practice due to an antiquated exam that has nothing to do with real world law practice. Could this be the last gasp of the bar exam?

This is a subject near and dear to my heart: the dreaded Bar Exam, that anxiety-provoking gauntlet that one must survive after one has already survived three years of law school. Never, in over 20 years spent in various industries, have I ever witnessed such an absolute waste of time and money. I’ll get to that later. The legal world is holding its collective breath as we approach September and the release of July’s bar scores. These scores will either confirm or debunk the theory that lawyers may be getting dumber. If the passage rate is low, as it was last year, those who point to the quality of law students taking the bar as the reason will be pleased. If the passage rate is high, then last year will be written off as an anomaly. Personally, I’d like to see this be the last gasp of the bar exam.

Bloomberg Businessweek’s cover asks the question, “Are Lawyers Getting Dumber?” My answer is, “No. The use of a standardized test that has nothing to do with the real world practice of law to determine one’s qualifications to work as a lawyer has outlived its usefulness.”

The Businessweek story showcases the ongoing battle between law school deans and Erica Moeser, the force behind the National Conference of Bar Examiners. In short, the deans believe that the test itself, as well as the oft-glitchy software some use to take it, is behind the fall in passage rates.

Ms. Moeser, on the other hand, blames it on the deans for lowering admissions standards and allowing a poorer caliber of students into the hallowed halls of jurisprudential education. Because everyone knows how easy it is to get into Harvard Law (not!). In Ms. Moeser’s mind, students are simply less prepared. Quoth she from her ivory tower, “You can squawk loud and long about what’s happening but you’ve got to look at who your student body is.” In all fairness, it should be noted that Ms. Moeser never sat for the bar exam as it was not a requirement for locals in Wisconsin at the time.

Right. One feels the need to point out that one will not be sitting down to tea with Ms. Moeser any time soon. Then again, in her mind, one would most likely be serving that tea, not enjoying it.

Brooklyn Law School dean, Nick Allard, calls Her Highness’ attitude toward the situation the “height of arrogance.” One agrees with Dean Allard.

Apparently, Ms. Moeser would prefer law to remain the territory of the elite, where the price of the almighty license is beyond us mere mortals. All I can say to that is, “Pull up a chair, sweetie, and let me educate you.”

I graduated law school. I took the bar exam. I failed by seven points. Was I unprepared? I don’t believe so. I studied diligently, reviewing my outlines as well as the $900 worth of bar prep class materials. I ate, slept and breathed bar exam prep. What could possibly have been the problem?

Perhaps I am of a lower caliber than my esteemed colleagues? I did go to a lower-tier school, after all. Never mind that my LSAT score and undergraduate GPA afforded me a 75% Honors Scholarship. Never mind the fact that (sorry if this sounds like bragging) I’ve never failed an exam of any kind in my life. Never mind the fact that I actually graduated law school an accomplishment in and of itself.

So what is the reason? Check any bar exam-focused online group and you’ll find that most exam takers are strung-out on caffeine and lack of sleep, stressed beyond reasonable limits and anxiety-ridden over the fact that this test is the key to our profession. I was part of this virtually zombified group. This is not the reason though; it’s simply the backdrop against which the real reason plays out.

pfThe real reason is that this exam is unrepresentative of the real world of law. In no reality does one walk into a lawyer’s office with a complex personal injury case rooted in negligence and walk out three minutes later with the complete strategy on how to proceed with their claim. That’s akin to walking into a doctor’s office, saying, “This hurts!” and leaving three minutes later with a full diagnosis.

It is a proven fact that some people do not do well on standardized exams. As I’ve pointed out (again, forgive me if it appears I’m bragging), I have never failed a standardized test in my life. However, I’ve never before taken a test for which the preparation left looking like an extra on the set of The Walking Dead.

Ms. Moeser might interpret that to mean I am of lesser caliber than my peers and she is welcome to that opinion. It, along with her other opinions, may be carefully folded and… well, you get the picture.

My point is that no one expects “instant diagnosis” of legal or medical problems when one seeks professional assistance in one of those fields. Yet, that is what bar exam takers must do. A better test of one’s ability to practice law would be a longer exam with removal of the enormous and ridiculous time constraints put on those taking it.

The current form of the bar exam, in my opinion, does not actually test one’s ability to practice law; it tests one’s ability to pass a test. If anyone received the kind of “instant diagnosis” found on the bar exam from their doctor or lawyer, I can almost guarantee they would a) want a second opinion and/or b) be rather upset at paying so high a fee for so little time.

The fact that I did not perform well under the enormous pressure and time constraints of the bar exam does not mean that I don’t know the law. It simply means that I failed to do well in a situation that even seasoned lawyers have said never occurs in “real life.”

Fortunately for most, there is no limit to the times one can take the bar exam in the U.S. Those who have their sights firmly focused on practicing law may take the test over and over until they either pass it or run out of money to take it again. Personally, I have no plans to do so. I long ago decided that practicing law was not for me. Actually, that decision came in the middle of my third year of law school, as it does for some.

My bar exam attempt was the logical conclusion of a long journey. Had I passed, I would likely have been giving free or very low-cost legal services to friends and family rather than hanging out a shingle. However, as I have no intention of practicing law beyond that limited group, I see no point in subjecting myself to another run at the bar exam. Especially when it is such a broken and flawed means of testing ability.

Interestingly, Dean Allard says that low bar passage rates impact more than just the exam takers’ lives. “Most people in America can’t afford lawyers. Most small businesses can’t afford lawyers. The biggest cause of that is that there are too few lawyers being produced. [The bar exam] perpetuates the status quo in a way that keeps qualified, motivated people from becoming lawyers and deprives most people of affordable legal services.”

That’s honestly the first time I’ve heard the argument that too few lawyers were being produced; usually, it’s the other way around. Though, with last year’s bar passage rate, perhaps the tide has turned. Whatever the case may be, I truly believe that it’s time to fix the broken and unrealistic thing that’s called the bar exam.

As for me, I’ll continue providing legal analysis and commentary, which I truly enjoy doing, and wish the deans well in their efforts to topple the ivory tower.


Are Lawyers Getting Dumber? Empty Theory or Troubling Trend

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