Sunday, October 6, 2013

Do States Need to Change the Bar Exam?

One of the topics we discussed at the ETL conference was whether states need to change the bar exam.  Most of us thought that states need to radically change the bar exam.  I would say that states need to reinvent the bar exam.

Clearly, for the most part, the bar exam does not test what lawyers do in practice.  Lawyers do not take multiple choice exams in practice, nor do they answer essay questions.  Why are law students spending several months studying for the bar, when the bar merely tests what has already been tested in law school?  Let's eliminate this waste by changing what the bar exam tests for.

The bar exam also has a significant influence on what law schools teach.  Like it or not, much of what law schools do is prepare students to pass the bar.  Consequently, law schools are forced to teach in a way that may not be the best way to prepare lawyers for practice.  As one ETL participant stated, "We value what we access."

A lot of criticism in public education is aimed at teaching to the test.   However, there is nothing wrong with teaching to the test if the test evaluates students on what you actually want them to learn.   Thus, if state bars test for what lawyers do in practice, then law schools will have to at least in part teach to the bar exam, and, consequently, better prepare lawyers for practice.

For example New Hampshire has developed an experimental program in conjunction with the University of New Hampshire School of Law (here):

"The Daniel Webster Scholar Honors Program is a comprehensive, practice-based, teaching and bar licensing honors program that takes place during the last two years of law school.

The program is the first of its kind in the country and has received national praise from judges, lawyers, and legal education scholars. It was launched on July 1, 2005, as a collaboration by UNH Law, the New Hampshire Supreme Court, the New Hampshire Board of Bar Examiners, and the New Hampshire Bar Association.

The program, unique to UNH Law, is a two-year bar practicum. It eliminates the two-day bar exam and in its place offers a two-year exam: Students develop their skills and judgment in both simulated and clinical settings. They counsel clients, work with practicing lawyers, take depositions, appear before judges, create basic business documents and learn to negotiate and mediate. They create portfolios of written work and videos of oral performances that are viewed by their bar examiners after each semester. In short, they do the things law students need to do in order to become client-ready."

Of course, this is just one alternative to the traditional bar exam.  What is important is that states develop bar exams that test what lawyers actually do.  Otherwise, it is just an unnecessary repetition of law school.

(Scott Fruehwald)

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