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5 Bar Exam Truths You Need to Understand

Today we focus on 5 bar exam truths – trends you should know about that are going on in the bar exam world these days. As I’ve said elsewhere in this blog, there is a basic narrative about the bar exam that certainly is prevailing today. The narrative goes something like this, “The exam is way harder than it’s ever been.” The narrative goes on to say, “Bar takers, law students in particular are stupider, less qualified, less prepared than they’ve ever been.” The narrative then goes on to say, “When you combine the harder exam, the less prepared students and the lack of a legal job market, you’ve created the perfect storm, so the bar exam doesn’t work and isn’t going to work. People aren’t going to pass it.” There are some elements and kernels of truth in some of that, but there’s an awful lot of that generally in that narrative that just doesn’t make sense and isn’t true.

I would encourage you to not buy into that. At least examine it and explore it and certainly over these next few posts that’s what I want to do is to really dig into some that and to show you based on my perspective why I think that might not be the case. You can then decide for yourself and proceed accordingly.

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What the Bar Examiners are REALLY Doing

I thought a good place to start with this discussion would be to look at what the bar examiners are really doing. As I said, there are some narratives around what is perceived to be happening but I’m not sure that they really hold up under specific scrutiny. In my view there are 5 basic things that are happening by the bar examiners right now. I’m going to look at those 5 things that are going on. In the next post I’m going to look at a group of items that I think the bar examiners are not doing but sometimes people think they’re doing and in a later post, we’re going to talk about how you need to respond to those particular realities.

For now, I just want to set out what I think the examiners are really doing based on my experience and my observations in working with lots of people in lots of jurisdictions for a long period time.

Protecting the Profession, Not the Public

The first thing I think the examiners are really doing is protecting the profession of law, but not necessarily the public.  Often the rhetoric that you hear from bar examiners is that they are working hard to assure that all new attorneys are competent and qualified to practice law and protect the public. It all sounds really good, certainly no one can disagree with that premise. The reality is lots and lots of people pass the bar who should never practice law. I think you can all just stop for a moment and think of some people that you know who are in the practice of law.

You probably shake your head and mutter and say, “How in the world did that person ever pass the bar and get into the practice of law?” There’s undoubtedly a substantial number of people in the profession who are not particularly ethical, who are not particularly following the rules and the concepts of the right practice of law. They’re not behaving properly with respect to their clients or their opposing parties or the court or anyone else. Yet they seem to get away with it. What’s going on here? What are the bar examiners doing? I think that the reality is they give lip service to protecting the public. The primary focus of the bar examiners in every jurisdiction that I’m aware of has really been to protect the profession. What I really mean by that is in a era in which law jobs were plentiful and applicants for those jobs were scarce. The bar examiners responded to that economic pressure and more people passed the bar. It didn’t take as much to be successful on the bar exam as we’re going to talk about in a moment.

The examiners filled in some gaps, they had lower passing thresholds, and it was just generally easier to pass the test. I would say over the last 25 years there have been a number of times where it had been objectively easier to pass the bar than it is today. What’s going on now? As you know, undoubtedly there are fewer jobs available in virtually every jurisdiction for lawyers and lots of people who want those jobs. The pressure on the existing local bar to not allow everyone into the bar is enormous.

To protect the profession, the bar associations limit the number of passing applicants. This means that it is tougher in that sense to become a licensed member of the bar. I think you have to begin with this reality in mind. The bar examiners are not trying to make sure that you are totally knowledgeable or completely ethical, ready to practice law on your first day as a member of the bar. That would be nice and it sounds good. It’s an aspirational piece, but the reality is that they’re making sure there’s not an oversupply of lawyers for the amount of legal work and jobs that exist in their jurisdiction. If you watch this carefully you can see that there’s a very clear trend line in virtually every popular jurisdiction to reduce the number of passing applicants. We see this in California, in New York, in Florida, in Texas, in Georgia, New Jersey and most of the larger jurisdictions. In every one of those states which are popular jurisdictions for new attorneys, the trend line has been down in terms of the passing applicants.

If you’re in a state like North Dakota or New Mexico where they need a few more attorneys, you don’t see that trend line the same way. You don’t see it in states where there’s growth in the legal industry or at least a level amount. I think it’s important to understand that this is part of the reality that we’ve got today.

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Bar Examiners are Cutting Their Costs

The second bar exam truth about what the examiners are doing — and this is important to understand if you’re a bar taker — is that the bar examiners are cutting their costs. I don’t know many jurisdictions, many states in which budgets and expenditures by state agencies aren’t under a lot of scrutiny. The days of wild profligate spending are long gone. Again, I’m going to use Florida as an example, but it’s not the only one. For many years the Florida Bar examiners had one of the largest investigative teams, even bigger than the state police had. Which was crazy, it made no sense, they spent money like mad. They were a fiefdom unto themselves.

That’s not the case any longer and that’s not true in most jurisdictions any longer. The bar examiners are faced with budget cuts, so what do they do? One of the ways that they’ve dealt with it is they don’t spend as much time, money and energy in the process of reading essays from likely failing applicants. Here’s what happens: If your multistate score (which is machine scored) puts you in a failing position such that you would need extraordinarily high essay scores to pass, then in a number of jurisdictions your essays are either not read (either by statute, like Georgia) or they’re not read with any care (like in California or in New York). In other words what the examiners make a rational decision and say, “Look, this applicant has a 110 scaled multistate score, that isn’t going to be passing in our jurisdiction. They would need nearly perfect essay scores to pass.”

So, the examiners reason, if we have to read the essays of likely-to-fail candidates, we’re not going to spend any time or effort on that. We’re going to hand those essays off, get them read very quickly, very superficially. We’ll give those applicants a basic superficial score. In California we call it the ‘gentleman’s 50 or 55.’ It’s a failing score but it doesn’t mean your essays were necessarily good or bad. It just means the examiners were not really reading them because there’s no way your essays could be good enough for you to pass with your current MBE score. We’re seeing that approach incorporated more and more jurisdictions like California, New York, Texas, and New Jersey where you can’t just pass one part of the exam.

Another way the examiners are cutting their costs is that in many jurisdictions they hire under- or unemployed-Bar members to grade essays. You might say, “How does that cut their costs?” In most jurisdictions the examiners are now paying just over $3 a test booklet to their graders.

So, if you want to make a whopping $1,000 grading Bar essays this year in California you can do that. You’ll get paid $3.10 per exam that you grade.  Instead of using professional graders like academics or law professors or partners in law firms or even senior associates in law firms, they’ve gone to the lowest common denominator. Again in California as an example, you can be someone who has failed the California Bar previously, but then passed and still be eligible to be a bar grader.

Another way the bar examiners are cutting costs is using and repeating questions. We’re seeing a lot of retread questions. They’re taking questions from law school professors and only doing modest revisions to change them into bar exams. It’s pretty noticeable in certain jurisdictions. What’s worse is that these are not particularly well designed questions. They’re not well focused or well structured for the bar exam.  We also see that in jurisdictions that use state multiple choice questions. In Florida, the examiners repeat their multiple choice questions over and over and over again (and with a great deal of pride, although I’m not exactly sure why because they’re just horribly written).

Another way that the examiners are cutting their costs is that the broad open ended essay questions of the past have now been replaced with more specific calls of the question. This is because it’s easier to grade an answer when it’s a very specific call of the question. The range of potential answers and the things you have to calibrate for are much smaller than when you’ve got an open ended question.

Standardized Uniform Testing

The third bar exam truth about the what the examiners are really doing, is moving to more standardized or mass produced kinds of tests. What we’re seeing is more and more jurisdictions moving to the nationalized kind of test. This is most obvious in New York when we’re moving in July of 2016 from a state specific exam to the uniform bar exam. One thing that does happen is that we go to a more standardized generic set of questions that are not state specific at all. That’s happening in more and more jurisdictions. We see that also in California, the other large Bar jurisdiction, they will be moving in 2017 to a new format of shorter exam going from 3 days down to 2 days. That’s part of their cost cutting measure. It’s obviously easier to administer a 2 day test. They’re cutting down from a 3 hour performance test to a 90 minute performance test and might end up using the multi-state performance test.

Clearly we’re seeing this trend towards the more standardized kinds of questions. The trend line is clear. A few years ago the UBE was being used in just 5 or 6 jurisdictions and now we’re up to 14 or 15, and continue to see growth in that uniform bar into more and more jurisdictions. This obviously is a reflection that the smaller jurisdictions for the most part, (New York’s the exception) just don’t have the resources anymore to write full length bar exams and so they’re abandoning those and moving to a standardized kind of test. Because of that, it doesn’t mean you can study once and then be good in every jurisdiction. That’s one of the fallacies about what’s happening, because the UBE is not as transferable as some people would have you think. Clearly it means there’s a move toward that kind of testing or the standardized 30 minute essay, the standardized 90 minute performance test. The standardized multi-state bar exam over a one day period with 200 questions. I think we’ll see more and more of that, not less and less of it. That’s the third thing I think that they’re doing.

Ethics Matter More Than Ever

The fourth bar exam truth about what I think the examiners are doing is that they’re emphasizing ethics as a testable subject. I see this almost across the board. Florida has gone crazy testing this subject, which I find ironic considering the number of incredibly unethical members of the bar that every year crop up in Florida. Ethics was a subtopic on all 3 essays that they used in their latest bar exam. We see ethics being tested in California, Georgia, and New York. In Texas, it pops up in the multi-state performance test. We see it in New Jersey as a rollover, a crossover topic on their exam. Every jurisdiction that we’re aware of is testing ethics in some form or fashion. The multistate professional responsibility exam (MPRE) has become required in the number of jurisdictions, replacing the old requirement of a passing grade in your law school professional responsibility class.

Does that mean you have to be more ethical to be a member of the bar? No, it just means you have to know those rules. You need to understand that ethics play a role in many of the questions that you’re going to see both essays and performance tests. This is one reality that ethics are clearly a point of emphasis across the board, every jurisdiction that I’ve examined.

Weeding Out the Uncommitted

The fifth and final bar exam truth with respect to the examiners is that they’re weeding out the people who are uncommitted to the process of being a member of their bar. They’re weeding out the hobbyists, the people who are dabbling, just playing with the idea of passing.

I got a phone call over the the New Year’s holiday weekend from someone who wanted to take the New York bar exam. They were licensed in another state. What they told me was that even though there were only 55 days or so until the bar exam, they didn’t want to bother with lectures or do much reading. This individual thought if they practiced some questions for a week or 2 that would be enough to pass the bar. I told them, (quite bluntly as I’m prone to do) that they have almost a 0% chance of passing the bar exam. They were deeply offended that a couple of weeks wouldn’t be enough to study because they were so bright and so talented as a lawyer. I don’t deny any of that, but the reality is that the bar examiners have simply made the exam such that if you don’t commit yourself with enough time to study the nuances of the test you’re taking, you’re not likely to pass. In my experience that has meant about 250 to 300 hours of study. That’s true whether you’re taking California or New Jersey, whether you’re doing a UBE exam or the Florida exam. It’s about the same in all of them. You just simply can’t get through and pass the exam with just a handful of hours or a little bit of cramming at the end. Frankly, if that’s your level of commitment you’re just not going to get into the bar.

The examiners are saying, “Look, we don’t need you in our bar, we don’t need more competition. We’ll write a test that’s not necessarily harder but it’s more detailed. As a result if you’re not putting in the time to study, you’re not going to be successful on the test.” Now that’s going to irritate and annoy a lot of you and you’re going to say, “It’s not fair.”  You can try to swim against that tide but the numbers tell a very clear story that people who study for a short period of time, people who are repeat bar takers and don’t do much to prepare and then repeat have a very, very low pass rate percentage.

Another way that they weed out the uncommitted is that character and fitness background checks are becoming more onerous. There’s a lot to do. It used to be that Florida was the only state that I thought was really over the top. A lot of jurisdictions now are asking for a lot more information, particularly if you have been licensed in another bar before you’re coming to this one.  It’s more work, it’s more paper, it’s more things that you have to create. This is particularly true if you’re a foreign trained attorney. There are a few more jurisdictions that you can apply to sit for the exam in now that you used to. There’s a lot more character and fitness, there’s a lot more that has to be done to get your credentials evaluated. If you’re not willing to go through all of those procedural hurdles and hoops, you’re not likely to be successful.

Then the final way that I think they weed out the uncommitted is that the examiners make this a very costly process. The application, the cost to sit for the exam, the cost to retake the exam are all going up. This may be in part to help pay for the costs of the bar, but I think it’s also a way to weed out the people that just aren’t serious. I can’t tell you how often I hear from people that say, “I don’t want to spend any money to study or I don’t want to spend the money for the application or I don’t want to spend the money for the ticket or for the travel to the bar site.” The reality is if you’re not willing to do that you’re not going to become a member of the bar. If you’re not fully committed to being a member of the bar, don’t waste your time, don’t waste your money, don’t waste your effort. You’re just not likely to be successful.

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