Thursday, April 23, 2020
There's a line in the book Moon Dust, regarding people who fervently believe that the Apollo moon landings did not take place, that reads: "The only thing I feel sure of [with respect to a moon landing skeptic] is that he wants to believe this story...." A. Smith, Moon Dust, Harper Perennial (2005). In other words, no matter the evidence, the unbeliever will not believe. Sometimes I feel like that with the bar exam uncertainties and postponements.
As Professor Marsha Griggs points out, law schools (and most of the rest of education) flipped on a dime to online learning. Let me tell you about online learning. I was a skeptic. And, I was afraid, mighty afraid, because I didn't think I could do it. But guess what? I just finished my last class of the semester, online, with smiles and in celebration with my online students. It's too early to tell, but it seems to have worked. I think I'm now a believer.
That brings me to my first point...
Prior to online teaching, I just didn't believe that it could be done, at least not well. I was like the moon landing skeptics. I had heard that some had succeeded in online environments but I didn't really believe the stories. Not at all. But I'm no longer a skeptic because I've experienced online learning for myself. It's not quite a moon landing, but somehow I navigated through the ether of the internet space to make contact with my students, for them to connect with me, for all of us to connect with each other. Here's what I've learned. I was stuck in the past due to confirmation bias. To put it plainly, I lived in the rut of traditional classroom teaching because that was all I knew. And, because that was all I knew, I couldn't see that there might be other ways to deliver high quality legal education. That is until I had to teach online.
So that brings me to my final point - the bar exam...
If law schools can successfully switch to online learning in just a few weeks or two, it sure seems like bar examiners can switch to online bar exams with a few months of lead time. Yes, that would mean open book bar exams. Yes, that might mean reducing the bar exam to a one-day multiple-choice MBE exam. Yes, that might mean some lack of security. But, is there any real reason to hold onto the past model in light of the future pressing down upon us with some much uncertainty? I think not.
It's time for the bar exam to move past tradition and into a future that might be much better for all of us - for bar examiners, bar exam takers, and the public too. I know. Sometimes it's hard to give up what we know. However, if we only ever keep our hands gripped tightly around the present, we'll miss the wonderful chances that are all around us to improve the future of our world. The choice is ours, all of ours. (Scott Johns).
Sunday, April 19, 2020
Law School Transparency has put out a new report on its Vision for 2025. LST is a nonprofit dedicated to making the legal profession more transparent, affordable, and fair. The report identifies LST’s priorities, recommendations, and efforts to create more accessible, affordable, and innovative law schools—all with an eye to creating a more diverse law student body and, by extension, a more diverse practicing bar. (The report was funded by the Iowa State Bar Association—kudos to that organization and its leaders for its financial support of LST and its advocacy!)
I’m on LST’s board of directors, so I knew this report was coming, but I’m blown away by its depth and thoroughness. There’s a useful executive summary on pages 5-11. Some highlights:
1. Taking on US News: David and Goliath
The first half of the report addresses the wrongheadedness of our national reliance on Goliath: the US News rankings. As LST’s Executive Director, Kyle McEntee, said to me recently, “Ordinal rankings—one, two, three—convey authority because of their simplicity. They convey that one is better than two, and two is better than twenty.” But of course law schools have many dimensions of strengths and weaknesses, and prospective law students have a diversity of priorities, so ordinal rankings don’t address prospective students’ actual interests.
In response, LST is in the process of developing its own, more nuanced, rating system for law schools. Called the LST Index, it will evaluate schools based on a better set of criteria than US News’s clunky proxies. The exact criteria are still in development—LST will draft a list of approximately 50 criteria for consideration, then refine those criteria through an extensive public engagement period. Each criterion will be measurable, document-able, and provable. (LST has already workshopped some proposed criteria with D&I experts, deans, law students, and practicing lawyers at University of South Carolina and Boston College.) Then, the entire system will be improved through an iterative review process—does the Index measure the things law schools and law students value? More information about the LST Index is available at pages 31-39 of the report.
Meanwhile, as LST is developing an alternative to the US News rankings, it’s also lobbying US News to modify its existing ranking algorithm. I think it’s really practical for LST to address the problem on both fronts—loading its slingshot with the LST Index while also working with Goliath to be smarter about things. LST’s specific suggestion here is that US News replace its current “expenditures” data point with an “efficiency” metric. That is, instead of taking into account how much a school spends per student, a figure that will always make private schools look better than public ones, LST is suggesting that US News give credit to schools who provide more bang for their buck. An efficiency metric would consist of the ratio of tuition revenue to high-quality jobs (e.g., long-term, full-time JD-required or JD-advantage jobs) after graduation. More information about the proposed efficiency metric is available on pages 40-50 of the report.
2. Adjustments to the Law School Accreditation Process
The second half of LST’s report addressed law schools’ accreditation. LST has specific critiques of which accreditation metrics the ABA should ease up on and which it should tighten. These are more interesting to law faculty than to prospective students, but they’ll still be important adjustments that can make a big cumulative difference. In particular, LST is lobbying the ABA to allow more flexibility in how law schools deliver learning outcomes, review what full-time faculty members do to provide high-quality legal education, liberalize distance education standards (oh, how timely!), examine the diversity of valuable ways in which libraries contribute to legal education, and refine the variance system. On the other hand, as a matter of consumer protection, LST argues that the ABA should ask tough questions about why different students—particularly students of color and women—in a law school class are paying different amounts of tuition, and frankly, why legal education is so freaking expensive in the first place. LST has always been a proponent of transparency (it’s right there in the organization’s name: Law School Transparency), and the report makes compelling arguments for law schools to make more disclosures about law student borrowing, tuition discounting, and diversity. More information about accreditation changes can be found in Part II of the report, pages 51-84.
Lastly, a plug for assistance. If you want to help LST develop the LST Index or lobby for different accreditation standards, check out ways to help here.
(Cassie Christopher - Guest Blogger)
Monday, April 13, 2020
Hat tip to Sara Berman who shared an op ed that made it to my inbox this morning. The article: When Will Life Be Normal Again? We Just Don’t Know, by Charlie Warzel, an opinion editor for the New York Times. Warzel’s article consists of 46, mostly single-sentence, paragraphs of pandemic related questions that we simply do not have answers to. Those unanswered questions are flanked by only and exactly eight sentences of text, that bring home the point that as we enter a month or more of shelter in place lockdown, “we have more questions than answers.”
Today, like so many days before, I ended the day with more questions than I started with. And not one of my questions has found a definitive answer. I’ve read and written articles, blogs, exposés, papers, and proposals, but I’ve found no catchall answers for those tasked to assist the incoming class of attorneys with bar readiness. As I ponder my own questions, my thoughts shift seamlessly to the meritorious and unanswered questions of law students and future bar takers:
If there is a bar exam, will masks be included on the list of permitted items? If not, will the examiners provide masks at the test sites?
How will bar examiners ensure the safety of examinees during the exam administration? Will there be on-site coronavirus testing?
What recourse do we have if we contract the virus during an exam administration?
Should we have to risk our health and the safety of our loved ones to take the bar exam?
If it's not safe to go to school, attend church services, or have dinner in a restaurant, how is it safe to sit in a room with others for six hours to take an exam?
What supervised practice options are available to students who plan to enter solo practice or practice in rural areas without other attorneys?
What arrangements will there be for students who receive test accommodations?
When did administration of the bar exam become tied to the number of people taking it?
If there is a bar exam given in July in State A, will students in State A also have the option to take the exam in September instead of July?
If a student who has registered to take the July exam does not feel safe taking the exam in July or September, can that student receive a refund of their examination fee?
Are you listening to the students in your state or are you listening to some outside entity tell you what is best for us?
Could you study [effectively] for a two-day bar exam under these conditions? Has anyone ever had to prepare for and take a bar exam under these conditions?
Do you wonder why the number of people interested in going to law school has dropped?
If an emergency is not a time to make a change, when is?
Why are folks in a diploma privilege state so opposed to diploma privilege?
What is it about diploma privilege that scares you?
Isn't diploma privilege a bigger threat to those who sell and profit from the exam than it is to the public?
What good is ABA approval if examiners and the ABA don’t trust our law schools to educate us and prepare us for practice?
What does the bar exam test that three years of law school did not teach us?
Why do you have more confidence in an exam than in us?
I claim no originality for this week’s blog. I credit a writer whom I’ve never met for the concept, and I credit the questions to the voices of law students that I have and will continue to listen to.
Monday, April 6, 2020
For decades Wisconsin has stood alone in its court-adopted diploma privilege for graduates of law schools within its state borders. However, Wisconsin is not the first state to enact diploma privilege as a means of licensing attorneys. At one point, diploma privilege was the norm, not the exception. Thirty-two states and the District of Columbia utilized diploma privilege as the principal means of licensing law school graduates until the early 1900’s. When the American Bar Association denounced diploma privilege, states began to move toward examination as the gateway to licensure. Many could have been left to believe that the time of diploma privilege was a bygone era. But maybe not so.
New Jersey has emerged as a leader by offering what most should consider a reasoned and compassionate compromise to address the frustratingly uncertain predicament that would-be July 2020 bar takers face. Today, the New Jersey Supreme Court entered an Order cancelling the July exam and postponing to a date uncertain in the fall. State courts in Hawaii, Massachusetts, and New York, had done the same thing days earlier. But unlike its northeast neighbors, New Jersey has granted an expanded ability to temporarily practice law under the supervision of an attorney to 2020 graduates of any ABA accredited law schools who have not previously taken a bar examination. The order temporarily authorizes 2020 graduates to enter appearances, draft legal documents and pleadings, provide legal services to clients, engage in negotiations and settlement discussions, and provide other counsel consistent with the practice of law. The temporary license terminates on the date the next bar exam is given in the state of New Jersey.
Critics may point to shortcomings of the Order. To such criticism bar admission policy reform advocates will likely respond todays order was not perfect, but it was an excellent start. “At this challenging time, the public has a continuing and growing need for legal services in many critical areas,” Chief Justice Rabner stated in the order. “Newly admitted lawyers can help meet that need. The Court also recognizes that, without a means to pass the bar and obtain a law license, qualified students who expect to graduate this spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” Thank you, New Jersey. Thank. You.
Who's got next?
 Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wis. L. Rev. 645, 646 (2000).
 Paul C. Huddle, Raising the Bar: How the Seventh Circuit Nearly Struck Down the Diploma Privilege Under the Dormant Commerce Clause, 5 Seventh Circuit Rev. 38, 40 (2009).
 The supervising attorney must be in good standing and have been licensed to practice law in New Jersey state courts or at least three years.
Saturday, April 4, 2020
The NCBE released an update yesterday on the fall bar exam dates. You can read the update below. You can also click here to go to their COVID-19 updates page.
Last updated April 3, 2020, 4:48 pm (CDT)
NCBE continues to monitor the coronavirus (COVID-19) situation closely. The health and safety of bar applicants and of our employees and volunteers are of paramount importance to us. We will update this page as new information becomes available.
Click below to see which jurisdictions have made announcements about the July 2020 bar exam.
For answers to frequently asked questions, see the FAQs below this statement.
At NCBE, we understand the anxiety and frustrations that law students and graduates have regarding the uncertainty surrounding administration of the July bar exam. The bar admissions process, like everything else, is being disrupted by the COVID-19 pandemic.
NCBE’s mission is to promote fairness, integrity, and best practices in admission to the legal profession for the benefit and protection of the public. That mission is more important than ever at a time when there is such great need for a competent and ethical legal profession to serve the public. It is with that aim in mind that we are seeking to ensure that the bar exam can be administered to as many candidates as possible in 2020.
To provide needed flexibility for jurisdictions and candidates, in addition to preparing materials for a July bar exam, NCBE will make bar exam materials available for two fall administrations in 2020: September 9-10 and September 30-October 1. Each jurisdiction will determine whether to offer the exam in July, in early September, or in late September.
We don’t yet know what the months ahead will hold. NCBE is being proactive and continuing to explore solutions for as many scenarios as we can anticipate. We are consulting with outside testing, technology, and exam security experts to consider various options and alternative methods of testing if the traditional group setting must be canceled or modified.
But no matter what happens, we are committed to ensuring that law students have every opportunity to become licensed so that they can put their legal education to work in helping those affected by this crisis.
Thursday, April 2, 2020
I sometimes wonder which is a bigger issue when it comes to attorney malpractice. Ethical problems or doctrinal issues?
As best I can tell, there are few disciplinary actions based on the elements of a negligence claim or the standard for a preliminary injunction or the elements of a common law marriage. Rather, it seems like most disciplinary actions are based on failing to abide by the rules of professional conduct, often due to time-management issues or substance abuse problems or client fund issues, etc. - all significant concerns that greatly impact the public good. Nevertheless, most states test ethical rules by using a one-day computer-based multiple-choice test -- the MPRE.
Consequently, if a multiple-choice exam suffices to assess ethical rules, why not use a mutiple-choice exam for assessing substantive doctrinal law too, especially in light of the concerns about administering a bar exam this summer due to the COVID-19 pandemic?
So here goes a possible syllogism:
The issue is whether bar examiners ought to consider using a one-day computer-based multiple-choice exam to assess doctrinal legal knowledge and application.
Like situations can be treated alike.
Here, with respect to the bar exam, assessing knowledge about ethical rules for professional competency, which is assessed by most states using a one-day online multiple-choice exam, involves the same sorts of problem-solving analytical skills as assessing knowledge about substantive doctrinal laws.
Therefore, bar regulators ought to consider using a one-day online multiple-choice MBE exam, delivered similar to the computer-based MPRE, to substitute for the current two-day in-person exam.
If my syllogism holds true, then there's no logical reason why states should delay the bar exam this summer because bar examiners can instead reformat the exam as a multiple-choice MBE exam to determine knowledge and application of substantive doctrinal law.
And, there's more great news. There's no reason why bar examiners can't permit law students to take the MBE prior to graduation just like the MPRE...so that law graduates are really practice-ready...at graduation. Wouldn't that be super!
And, as illustrated by the movement of the MPRE to an online testing format, bar examiners also have the expertise to convert the MBE from a paper & pencil exam to a computer-based exam.
Finally, although there are exam security issues raised with using online testing, particularly because online testing for this summer would most likely have to take place under "shelter in place conditions," those concerns can be mitigated by bar examiners as regulators make character and fitness decisions.
In short, it's time to move to online multiple-choice testing.
In my opinion, failing to act now, in the midst of this ongoing crisis, not only harms bar applicants because of the delays that might befall them due to COVID-19, but also fails to protect the public, who disparately need (and will need) legal expertise, now more than ever, as the U.S navigates through this world-wide crisis. Just food for thought!
P.S. Note: The biggest issue with respect to any licensure exam, it seems to me, is whether it actually assess what it purports to assess, minimal competency to practice law. As best I can tell, most states evaluate written exam answers - not for minimum competency - but rather based on a process of rank-ordering exam answers. And, with respect to multiple-choice exams, I suspect that much of the success lies not so much with assessing competency but with developing test-taking skills and the knowledge of U.S. legal culture. But, there seems no inclination to abandon the bar exam regiment. Hence, I suggest retooling the bar exam as a one-day online comptuter-tested MBE exam available for law students to take after their first-year of legal studies.
Saturday, March 28, 2020
There is so much that goes into the making of a bar exam. There are layers of research, accountability, and quality control involved in the drafting of the questions. There is beta testing of the exam content. There is scoring, rescoring, and equating. And there are levels of exam security that rival Area 51. The parties involved range from statisticians to politicians, who cautiously weigh input from the podium, the bar, and the bench. To top it all off, the job of bar examiner – at least at the state level – is a modestly compensated appointment that is held all the while keeping a day job of managing a law practice, or ruling from the bench. Too little appreciation is shown to our almost volunteer bar examiners in times of rest and high passage rates. So, I sincerely and thankfully shout out bar examiners everywhere who discharge an office of such societal importance. And I use the term bar examiners in the collective to include every role, from essay graders to the character and fitness investigators, from the licensure analysts to the admission administrators and honorable members of the board.
Bar examiners have to operate independently and make decisions about scoring and bar admissions that will be unpopular to some. But the examiners must make decisions, and it is the failure or delay in reaching a particularly important decision that has placed examiners under fire across the country. That decision: what about the July 2020 exam?
It is understandable to the legal and lay public that a law license is a privilege not to be indiscriminately awarded. It is equally clear that security protocols must be in place to maintain the integrity of the exam. What is not understandable is how some examiners can fail to make adjustments in the face of the extreme and dire circumstances of the COVID pandemic. In less than two weeks’ time, the nation’s ABA-accredited law schools went entirely online, trained faculty (many with limited technology skills) for online teaching, and adopted pass-fail grading. There is simply no excuse for bar examiners to not be just as creative and as willing to implement emergency protocols for the prospective July 2020 examinees.
This week 1,000+ students, representing all of New York’s law schools, petitioned the New York State Bar Association’s Task Force on the New York Bar Examination for an emergency diploma privilege. Days later, New York canceled the July exam. Adding ambiguity to injury, the exam has been rescheduled to the fall, but no date is provided to examinees who need to make study, travel, and lodging plans for the two-day exam. Are you kidding us? It’s almost like the examiners are not listening. At all.
A reasonably prudent person will interpret the New York decision as a signal for other states to follow. New York is considered highly influential, as its 2016 adoption of UBE was followed by Illinois, Maryland, North Carolina, Ohio, Tennessee, Texas, and others. The 2020 bar takers are not asking the examiners to give away law licenses without merit. They —joined in large number by law faculty, deans and alumni— are asking for necessary emergency licensing measures. They are asking examiners to think outside of the traditional bar exam box. They are asking that fairness, humanity, and the chance to earn a living be prioritized over security worries. They are asking the examiners to listen.
Friday, March 27, 2020
Sometimes what you plan to write gets scrapped. As I sat down to post this evening, New York postponed the July Bar Exam. You can read the press release here: https://www.nybarexam.org/Press/PressRelease_NY_BarExam.pdf
This will have a major impact on a number of students. I encouraged my potential New York takers to look at other UBE jurisdictions with late filing deadlines in April and May. The NCBE Comprehensive Guide to Bar Admissions has information here.
This is unprecedented, so advice will be rampant. Everyone should evaluate their own individual situation to make a decision. More information on the timing for transferring scores is needed to know whether another UBE exam would work.
I hope everyone is healthy and safe during this unique situation.
Monday, March 23, 2020
The Class of 2020 has suffered blows like no other graduating class. Domestic K-12, undergraduate, and graduate students alike have been informed that they are not allowed to return to their physical campuses, and must continue their school year online. Hardest hit are the presumptive graduates of the class of 2020. They must forego prom, senior skip day, all manner of internships and externships, competitions - from moot court to state basketball playoffs, science fairs, presentations, and call-back interviews. These students resume academic life, complete with homework and online class presentations, only to confront the added heartbreak of not being able to walk across the stage adorned in cap and gown or hood. My heart aches for the entire class of 2020 who will be unavoidably denied a great rite of passage: the commencement and hooding ceremony with all its pomp and circumstance.
But for law school graduates, the heartache may not end with foiled graduation plans. All medical and environmental indicators would suggest that the July bar exam cannot go forward as scheduled.1 But eleven law professors have said: Enough. While none of us can undo any of the devastating impact of COVID-19, state and national bar examiners can and should consider alternatives to licensure to maintain the influx of new lawyers into the legal profession. In a recently distributed policy paper, The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action, Professor Deborah Jones Merritt joined with ten other notable legal scholars to pose alternatives to licensure that would allow 2020 law graduates to enter the ranks of the legal profession without costly and undue delay.
According to the paper, the legal system depends on a yearly influx of new law graduates to maintain service to clients. The scholars, in a unified voice, reasonably predict that the aftermath of the COVID-19 pandemic will create an increased need for legal services. Says Merritt et al., “[o]ur 2020 graduates have knowledge and skills that will be particularly helpful in responding to the legal needs of a population stricken by COVID-19,” as “these graduates are fully equipped to function online, a skill that some senior lawyers lack.”
The paper poses six alternatives to the standard summer exam administration, and argues that postponing the exam for weeks or months is not a viable alternative with the uncertainty and medically likely resurgence of the COVID-19 virus. The paper’s authors urge the licensing jurisdictions, and most notably the NCBE that controls the Multistate exams, to consider an emergency diploma privilege, or supervised practice as an alternative in this limited and exigent circumstance that the pandemic presents.
Whether or not the bar examiners agree with the proposals, the time to act decisively is now. Keeping the class of 2020 in limbo about the administration of the July exam, piles onto the existing educational disruptions it has already suffered. Any substantial postponement of the exam will have harmful effects on the candidates who hope to join the legal profession this year.
According to Tammy King, Assistant Dean for Professional Development at Washburn School of Law, “the public service employers who need someone who can practice immediately are among those most likely to wait to make offers or to make offers and start dates contingent on bar passage.” According to reported NALP data, as many as 41.3% of 2017 graduates who were employed within 10 months after graduation secured their jobs after bar results were released. CUNY Law professor @allierobbins may speak for the class of 2020, in a March 23 tweet, "Dear Bar Examiners, Please Listen to these Women."
1 The National Conference of Bar Examiners’ website contains the following update regarding administration of the July 2020 exam: “The bar exam is administered by individual jurisdictions, not by NCBE. We are in close contact with jurisdiction bar admission agencies as they consider possible options for the July exam in the event that shutdowns and prohibitions against large gatherings remain in effect.”
Thursday, February 13, 2020
Let me ask you a couple of questions posed by a recent article (illustrating how easily our minds can mislead us). M. Statman, Mental Mistakes, WSJ (Feb 9, 2020).
First, do you consider yourself an above average driver?
Second, do you consider yourself an above average juggler?
Most of us answer the first question: "Yes, of course I'm an above average driver." In contrast, most of us answer the second question: "No, absolutely not. Why, I can't even juggle so I'm definitely below average." But context matters in determining whether our answers to these questions are accurate. Id.
Let me explain.
Take driving. Most of us think that we are at least average drivers (and most likely above average) because we drove today and didn't (hopefully) have an accident. But most drivers are just like us. They didn't have accidents either. Id. Consequently, at least half of us have to be below average and the other half above average. And, because we haven't yet explored any factual evidence in order to accurately gauge our driving abilities (such as accident records, traffic tickets, etc), we are often mistaken about our driving abilities.
Now let's take juggling. Most of us can't juggle at all, and, because that includes virtually all people, we are probably at least average jugglers (and maybe even better than average jugglers!). Id. You see, evidence matters in judging accurately. Id.
Likewise, with respect to learning, most of us think that we are at least above average with respect to easy tasks (like driving) but below average with respect to the hard tasks of learning (like juggling). However, without concrete facts to evaluate our learning, we are likely wrong. And that's a problem because if we don't know what we know and what we need to know we can't improve our learning...at all. Indeed, that's why learning can be so difficult. We tend to get stuck within our minds, our own framework, seeing what we want to see rather than what is really true about our learning.
So, as you evaluate your own learning, step back. Ask yourself how do I know what I think I know. Challenge yourself to see from the perspective of others so that you don't miss out on wonderful opportunities to improve your learning. Be honest but not harsh. Focus on identifying ways to improve.
If you're not sure how to go about self-reflective learning, here's a quick suggestion:
Take for example an essay answer that you've written.
First, find, identify, and explain one thing that in your writing that is outstanding (and why).
Second, find, identify, and explain one way to improve your writing (and why that would be beneficial).
Indeed, towards the end of most meetings with students, rather than telling my students to do "this or that," I ask them to tell me what they've learned about themselves from talking together and what can they do to improve their own learning. And, I don't stop with just one answer. I keep on asking until we have at last three concrete action items, all of which sprung out from them rather than me. That's because the most memorable learning happens in "aha" moments, when we see what we didn't see before. And, after all, isn't that the essence of learning...seeing anew with free eyes to boot.
Monday, February 10, 2020
And you'll finally see the truth, that a hero lies in you. Mariah Carey and Walter Afanasieff
Every lawyer who has completed the journey that begins with law school and ends with a multi-day bar examination knows the anxiety, the overload, and the sheer exhaustion that is bar study. There is no shortage of horror stories involving the bar exam.1 Virtually every attorney has a bar-related cautionary tale. Some of these tales recount the angst of making up legal rules to answer an essay question about which they had no clue how to answer.2 Other tales may involve the heart-stopping panic brought on by “Barmageddon” when technology glitches prevented examinees from electronically submitting their essays.3 The bar exam is a grueling rite of passage that no attorney wants to revisit or repeat.
But not accounted for in the published bar pass lists and statewide bar statistics is a group of unsung heroes that contribute in meaningful ways to the attorney rosters of each state. This group is largely unnoticed, unnamed, or misnomered as law school academic support staff, professional development personnel or even student services providers. These gifted folks, whether or not named or recognized, essentially relive the nightmare that is bar prep two times per year, every year, without break or exception, and without earning any additional licensure.
So, here’s to the bar prep heroes who, despite already having at least one law license, restudy, listen anew to lectures, and peruse endless pages of commercial outlines in search of changes to a majority rule or a better way to explain testable material. Hat tip to my colleagues in the trenches who biannually endure the round-the-clock cries for help, the endless essay grading, and the ulcer generating impathic nervousness for the aspiring attorneys in whom we are emotionally invested.
As the end of February draws nigh, you will soon return to regular sleep patterns and be able to answer the 100+ unread messages in your inboxes. Yes, all will be back to normal . . . except for the two to three months filled with delightfully dreaded anxious anticipation of released results. You are the heroes on the other side of bar prep.
 Marsha Griggs, Building A Better Bar Exam, 7 Tex. A&M L. Rev. 1 (2019).
 Karen Sloan, Software Maker Settles Barmageddon Class Action for $21 Million, NAT’L L.J. (May 15, 2015, 12:26 AM), https://www.law.com/nationallawjournal/
Wednesday, January 15, 2020
It's that time of year, where you might start to feel overwhelmed by the amount of bar review tasks in front of you. First all, this is not at all unusual, and you are not alone.
Second, a brutally honest fact - statistics show that the more bar prep course a student completes, the higher their chances of passing. For every single percentage point of your commercial bar course that you complete, your chances of passing the bar also increase.
However, whilst it is true on a general level that you need to be working hard to cover as much of that course as possible, it is also worth remembering that you are not a statistic. Students are unique individuals, not numbers. Most importantly, whilst working hard, you need to ensure that you keep your health and sanity for the end of Feb.
So, all that being said, here are a few tips if you find yourself getting overwhelmed:
- One thing at a time.The best thing to do when feeling overwhelmed is to take one step at a time, and DO one thing at a time. Yes, it’s good to have a big picture idea of what you need to accomplish between now and the end of Feb, that’s what will keep you on target. But, on a day to day basis, you need to focus on what you can do in the next 5 minutes, the next hour, the afternoon. Make lists for yourself, or use the ones given to you by the commercial prep companies (which are usually online) and tick one thing off at a time, even if it’s a small thing.
- Prioritize active learning. Don’t get bogged down in reviewing outlines, making outlines, making flashcards, etc. Your priority should always be practice essays (especially if you will get feedback) and practice MBE questions, not to mention, practice MPT. As for the law, of course you need to know it, and remember it, but you will remember it better by writing about it, with a unique fact pattern, then you will simply by reading the law, or even putting it on a flashcard. Succeeding on the bar exam is a SKILL, so you need practice. You wouldn’t prepare for a hockey game simply by reading about hockey; you’d get on the ice and run skating drills, you’d have practice games. The bar isn’t really any different.
- Extra Questions. I often get questions about whether students should be doing MORE, or a good source of extra questions. The right answer to this is going to vary from student to student. I always think more questions are better, in general, and varying the types of questions you are doing can be beneficial. However, you don’t need to pile on extra books and questions for the sake of doing so. Focus on getting through your normal schedule first, if you get through that, and you are not completely exhausted, then consider extra sources of questions.
- Don’t pay attention to what everyone else is doing.Remember, you are not a statistic, and there is no cookie cutter bar student. Comparing notes with others on what works, or what doesn’t, is fine, but don’t judge yourself by how many hours someone else is in the library, or how many sample questions they are doing, or whether they’ve bought 10 extra books. This is like the first year of law school; everyone is different, and you might be working at a different pace, or in a different way, from someone else. That’s ok!
Remember you still have over 5 weeks left, this is not a sprint, it’s an endurance race. That means pacing yourself. Working hard, yes, but also remember that working smarter is more important than just working harder.
Good luck, you got this!
Monday, January 13, 2020
The Uniform Bar Examination (“UBE”) has juggernauted from an idea to the primary gateway for entry into the practice of law. To the resounding support of law graduates and law schools, a supermajority of states has abandoned individual state law exams for a uniform exam written by a private entity. The UBE is the exam of the future and I anticipate that at least three more states will have adopted the UBE by year end. The UBE remedies many voiced complaints about varying degrees of exam quality and exam difficulty across states. Perhaps the most touted feature of the UBE is score portability.
UBE takers may "port" or transfer their scores into other UBE states, thus, relieving examinees from the arduous chore of having to sit anew for a bar exam. However, the promise of score portability is allusive at best. Transfer procedures vary by state. The fees to transfer one’s UBE score may be as high as $1700, possibly more than the cost of taking the bar exam in the transferring state. For a majority of students who exit law school burdened with student loan debt, these transfer costs will make the promise of portability unrealizable.
According to attorney and bar prep professional Ashley Heidemann, “the UBE is not as portable as law students are led to believe.” Heidemann feels that the promise of portability is highly deceptive to law students who believe that a widespread uniform exam means that once licensed, UBE attorneys will be able to transfer into other states at any time. “The biggest misconception students have,” says Heidemann, “is that UBE scores can be transferred to a different UBE jurisdiction at any time. In reality, UBE scores are only good for generally two to five years, meaning one cannot transfer a score from one state to a different UBE state after their specified time period is over.”
Even staunch supporters of the UBE seem to think that the UBE has not yet reached its greatest potential. UNLV Professor Joan Howarth advocates for a uniform cut score, citing that a six point score differential could effectively exclude hundreds of bar takers from the practice of law. Melissa Hale, Director of Academic Success and Bar Programs at Loyola University Chicago School of Law says, “I’d love to see a more uniform process [regarding admission and transfer policies].” Hale, who sees the UBE as an improvement over predecessor exams and self-identifies as pro-UBE, wants to make sure that students understand the score transfer process and that it is “not without hurdles.”
As more and more states adopt the UBE, academic support professionals will need to stay in the know and keep students informed about the true costs and limitations of score portability. That is — until or unless a uniform cut score becomes a reality. Stay tuned, we may be closer than we think!
 Marsha Griggs, Building a Better Bar Exam, 7 Tex. A&M L. Rev 1 (2019).
 Interview with Ashley Heidemann, President, JD ADVISING LLC (Mar. 25, 2019).
 Joan W. Howarth, The Case for a Uniform Cut Score, 42 J. LEGAL PROF. 69, 72 (2017).
Friday, December 13, 2019
Basketball player "...Duncan Robinson was open and didn't shoot." So reads an article about the "Most Improbable Player in the NBA." The Wall Street Journal, Dec. 13, 2019, p. A14.
In response to Duncan's decision, "...[H]is coach immediately called timeout. 'That's selfish.... You're being selfish if you don't shoot.'" Id.
For our February 2020 takers, bar prep begins for many next week. But, as we approach bar studies, if you're at all like me, I'm much more comfortable being on the sidelines, not taking shots so to speak, watching others talk through hypothetical scenarios and work through practice problems.
That's because I often don't feel like I'm ready to take shots because I don't feel like I know enough to play the game.
Instead, I try to learn to "play basketball" by reading about basketball and by watching others play basketball...a sure recipe to fail at basketball.
Let me put it concretely. With respect to bar prep, I'm much more comfortable listening and watching professors from the sidelines as I observe them work through bar exam problems and scenarios.
However, take it from Duncan (who went from high school to a small time college basketball program to a big time basketball program to a minor league professional basketball team to now a multimillion dollar contract with a big time professional basketball team). Id. What was the key to Duncan's success? As Duncan indicates, "I was having a tough time figuring out what was a good shot--and I quickly realized that everything was a good shot...I needed to literally shoot everything. [my emphasis]" Id.
For those of you beginning to prepare for the winter bar exam, take Duncan's advice. Take every shot at learning. Know this: That every problem that you work through, every time you close your lecture book and then force your mind to recall things that you have learned, every time you take action based on the bar review lectures that you are hearing, you are becoming a better "shooter", getting closer to your goal in passing your bar exam.
So, be of good courage as you boldly study for your bar exam. After all, you're not going to be tested about what you saw from the sidelines. Instead, you're tested on your ability to play the game, to score points, to solve bar exam problems. Consequently, take every shot you can, everyday throughout this winter, as you prepare for success on your bar exam this upcoming February 2020. Oh, and by the way, Duncan missed lots of shots on the way to success. But, he kept at it. You too, keep at it, because as it's in the midst of our missed shots that we learn how to perform better!
Wednesday, December 11, 2019
It is that time of year again! If you are taking the bar exam in February, you have either started studying, or you are thinking about a study plan. However, the holidays are also fast approaching, and for most people, that’s a busy time of year. It’s easy to feel pulled in multiple directions, whether it be from end of the year work related items (if you are working while studying), or family obligations, or just the excitement of the season making it hard to focus on mundane things like contract and property law.
First of all, breaks are okay. If you have already started studying, it is okay to take time to see your family, or even celebrate New Year’s Eve! You are not obligated to be in the library 24/7 from now until the end of February. Also, breaks are good for your mental health, and will help you get through the next couple months. While you shouldn’t take multiple days off, or entire weeks, spending time with loved ones is not something you should feel guilty about.
Even without the holidays, taking time to decompress is good for you for multiple reasons.
- Mental Health: Overall, spending time with loved ones, or participating in self care, is generally good for our mental health. It can help us reduce stress, and provide much needed support. Both of these things ultimately aid in test taking. While good stress can offer adrenaline, which can be important during a long exam like the bar, too much stress can shut us down, and impact our focus. In addition, things like anxiety can lead to poor decision making, either during studying or the actual exam. So, taking time to care for yourself, in whatever form that takes, is necessary for success on the bar exam.
- Learning and Memorizing: Taking breaks actually helps in the learning process. First, mindfulness, or meditation, on a regular basis improves test scores and helps with memory and retention. While this study was done with the GRE, there is no reason it can’t work with the bar exam. Also, breaks, or resting, can actually help you retain information. Your brain needs time to process what it has just learned.
Finally, if you are feeling overwhelmed, or feeling like you are “behind”, focus on the small tasks you can accomplish. Students often get caught up in thinking they have to set aside huge blocks to study, but that’s not true. You can do an MBE question, and review it, in 5 minutes. You can take a multiple choice question, and turn it into a small essay (take the answer choices off, and write out the answer using IRAC) in 5-10 minutes. You can review elements of a law in 5 minutes. And in fact, doing those things in small chunks will help with things like memorization.
Mostly, don’t feel guilty for taking time to be with family and friends, especially during this holiday season. Getting through law school, or studying for the bar exam, is all about balance.
Happy Holidays, and Happy Semester’s End!
Monday, November 4, 2019
Logically it makes no sense that, in today’s world, failing at something because you tried will tarnish you with a negative social label. . . . [T]o continue evolving, the stigma associated with failure has to be shaken off and be replaced with positive personal development. When you fail at something, hopefully you can recogni[z]e why and where you failed, so that next time you can move forward accordingly. – C. Montcrieff
Bar takers in all but one state have received results from the July 2019 bar exam. Although California examinees may have to wait another week for results, with increased MBE scores reported nationally, bar passage rates (overall) are deliciously higher than recent past exams. What better way to transition to the semester wind down than with news of newly licensed attorneys joining the ranks of your alumni rosters!
I am elated and overjoyed for my students who find their names on the bar pass list. I understand the sacrifice, the grit, the fear, the pressure, the exhaustion, and the anxiety that are necessary conditions precedent to bar passage. I actually get teary-eyed as I scroll through the social media feeds of newly minted attorneys that contain expressions of joy and gratitude for the obstacles they overcame and support they received.
My joy is tempered by the heartache I feel for those who fought so valiantly and fell short of the state cut score. It never ceases to amaze me how a day that brings elation can, at the same time, end in devastation. Those of us doing ASP work must manage that range of emotions altogether in the same day. We collect data and publish articles on interventions that lead to bar success in licensure candidates with known failure indicators. We are experientially trained to manage bad news and to earnestly encourage unsuccessful students to try anew. But how does the reality of our calling square with the purpose of our profession?
We must examine the role and reality of stigma in bar exam failure and determine where, how, and if, it fits into the notion that diversity in the legal profession is not solely about racial and socio-economic inclusion. The diversity promoted by effective academic support programs includes intellectual disparities, physical and emotional disabilities, linguistic variations, and learning differences.
The definition of academic and bar success is changing. Success for some may be sitting through a two-day exam without the testing accommodations relied upon during law school. For others, it can be completing an exam scribed in a language other than the test-taker's native tongue. For many bar takers who graduated in the bottom quartile of their law school classes and/or with low entering LSAT scores, success may be coming within 5-10 points of a passing score, that all published statistics said that they could not achieve.
I dare not suggest that legal educators dismiss or ignore bar failure, but I challenge the status quo about how we frame bar failure as part of professional identity formation. Moved by the MacCrate Report, law teachers have become more intentional about teaching, and have begun to support law students’ professional identity formation inside and outside of the classroom.1 I see no reason for that support to end with the bar examination. As we normalize struggle2, we must communicate bar failure as a temporary status and not as an indelible component of one’s professional identity.
1 Susan L. Brooks, Fostering Wholehearted Lawyers: Practical Guidance for Supporting Law Students' Professional Identity Formation 14 U. ST. THOMAS L.J. 377 (2018).
2 Catherine Martin Christopher, Normalizing Struggle, ___ Arkansas L. Rev. ___ (2019).
Tuesday, October 1, 2019
July 2019 bar exam results are not due to be released in New York for a few more weeks, but already here in Buffalo we have glad tidings, for one of our students took the Florida bar exam and has learned that she has passed. What a thrill! One that will soon be experienced by many others across the land.
Is there anything else that prompts the same surreal combination of pride and relief? In an instant, a person’s very definition changes. They go from not possessing a certain authority to possessing it (at least after other formalities are met). Is it any wonder that the storied Jonathan Harker, wandering alone in a foreign land and distracted by the strangeness of it all, forgot for a moment his own momentous achievement?:
What sort of place had I come to, and among what kind of people? What sort of grim adventure was it on which I had embarked? Was this a customary incident in the life of a solicitor’s clerk sent out to explain the purchase of a London estate to a foreigner? Solicitor’s clerk! Mina would not like that. Solicitor—for just before leaving London I got word that my examination was successful; and I am now a full-blown solicitor!
Harker’s momentary pleasure at the memory of his bar passage is soon dampened, however, by the cold foreboding of the great estate he stands before – and no wonder, for only a few minutes later he meets the master of that castle, who greets him with the words, “Welcome to my house! Enter freely and of your own will! . . . I am Dracula. . .”
Whatever horrors Harker had to face next, at least he had made it past the doubt and anxiety that many people feel while waiting for their bar results to be revealed. Consider the unfortunate Mitch McDeere, the latest Harvard Law graduate to be hired by the high-end Memphis law firm of Bendini, Lambert and Locke. One autumn afternoon, Mitch is called unexpectedly into an urgent meeting:
Lambert, Avery, and what appeared to be most of the partners sat around the conference table. All of the associates were present, standing behind the partners. . . . The room was quiet, almost solemn. There were no smiles. . .
“Sit down, Mitch,” Mr. Lambert said gravely. “We have something to discuss with you.” . . . He frowned sincerely, as if this would be painful. “We’ve just received a call from Nashville, Mitch, and we wanted to talk with you about it.”
Poor Mitch immediately guesses what this is all about:
The bar exam. The bar exam. The bar exam. History had been made. An associate of the great Bendini firm had finally flunked the bar exam. . . . He wanted to speak, to explain that he deserved just one more chance, that the exam would be given again in six months and he would ace it, that he would not embarrass them again. A thick pain hit below the belt.
“Yes, sir,” he said humbly, in defeat.
Lambert moved in for the kill. “We aren’t supposed to know these things, but the folks in Nashville told us that you made the highest score on the bar exam. Congratulations, Counselor.”
The room exploded with laughter and cheers.
Surprise! Not what Mitch was expecting. Unfortunately, Mitch’s satisfaction is nearly as short-lived as was Harker’s, for less than two pages later, in John Grisham’s The Firm, Mitch McDeere meets an FBI agent who explains that the Bendini firm is mostly a front for the criminal activities of the Chicago Mob, and that attorneys who try to leave the firm always end up dead.
Dracula and The Firm were both sensationally popular novels, which suggests that there is something highly resonant about the notion of passing the ultimate test of professional ability, only to be led directly into a world of evil and mortal danger. I suspect some people enjoy the irony – He’s supposed to be so smart, but he wasn’t smart enough to avoid the King of the Undead or the Capo di Tutti Capi – and other people appreciate the moral question – Does mere intellectual knowledge even matter when a person is faced with a threat to his life and soul?
But law graduates might see yet another layer to these tales: After all this hard work to pass the bar, over three crushing years in law school and ten blistering weeks of bar preparation, is my “success” just going to take the form of an indenture to forces that seek only to exhaust my vitality to feed their own appetites? True, most attorneys do not end up working for vampires or gangsters, but even a wholesome job for a decent employer can feel like purgatory to someone whose interests and aptitudes lie elsewhere. When our students are no longer our students, when they have taken and passed the bar and are out there gainfully employed, is that the end of their stories?
There might be a brief frisson in thinking so. Isn’t that why people read suspense stories? But if there are two last messages we can leave our students with, they are that passing the bar is both an ending and a beginning, and that the skills they’ve learned in meeting that particular challenge will be skills they can use in meeting future challenges as well. If they can pass the bar exam, they can overcome anything – a misfit job, a toxic employer, even a threat to their lives and souls.
And Jonathan Harker and Mitch McDeere are evidence of this, because they each survive their ordeals. In both Dracula and The Firm, the heroes triumph by relying on three core competences – the same three competencies we emphasize in preparing our own students to pass the bar and to perform well in practice: knowledge of the law, application of sound personal judgment, and reliance on a network of support. Harker escapes from Dracula's castle by finding an unconventional route to freedom and judging that the risks of flight are smaller than those of remaining in place. Once he makes it back to England, he uses his legal skills to locate Dracula's hidden lairs, documented in a tangle of deeds and conveyances, and then he teams up with a band of friends to track down and eliminate the fiend and his minions. McDeere has the good sense to realize that neither the firm nor the FBI has his safety or best interests at heart, and, turning to a small group of family members of those previously hurt by the mob's activities, devises his own plan to use the legal tools he has learned to escape from the gangsters while passing along the evidence needed to bring down the Bendini firm. Sure, this is all fiction and fantasy, but fiction is often popular because it provides another way of telling a truth.
To everyone who finds out in the next few weeks that they have passed the bar examination: Congratulations, and may the rest of your life be just as successful. Know that you have the ability to make it so.
Monday, September 30, 2019
Titles are granted, positions are given, but it’s respect that earns you credibility. - Lolly Daskal
This is the second in a series of weekly blog posts addressing the basics of effective teaching. Last week, I addressed the importance of knowing your audience, whether from the podium of a classroom or on a larger stage. It is equally important to establish your credibility in the classroom in a manner that fosters learning and builds student rapport.
A teacher is viewed as the subject matter expert in the classroom, whether the audience is a class of third-graders, or third-year law students battling Secured Transactions. But, deference to one’s subject matter expertise can be extinguished with the speed of a hand raise. How we answer questions, or if we answer them at all, matters. Authority is not credibility. While authority may be bestowed or presumed, credibility is earned - one interaction after another. True expertise is evidenced by our ability to field and answer questions, and it can be wholly undermined by our failure or refusal to do the same.
Recent experiences have, for me, sounded the call for a return to the basics of quality teaching. To ensure that our students are well-prepared to pass state bar exams, academic support professors try to develop and maintain subject matter expertise in legal licensure exams. Yet, to my great shock and frustration, the well-reasoned questions of scholars soldiering in the trenches of bar prep have been dismissed and derided by those at the helm of bar examination. When questioned about exam scaling and essay equating, I’ve heard psychometric experts say you’ll just have to trust us. Which begs my point: expertise without earned credibility hobbles the vital relationship between those who have information and those with whom the information needs to be shared.
In legal analysis and bar essay writing, we tell students to use the facts. We teach them to not assume that the grader knows the facts. Effective teachers and presenters, likewise, do not assume that the audience has the facts. Under no circumstance will good teachers be dismissive of student questions. Strong teachers are not afraid to be questioned about the factual basis for their research and conclusions. In fact, they welcome a circumstance for intellectual challenge; they are fulfilled by the opportunity to teach, explain, and enlighten.
As law professors we are shepherding the next generation into the legal profession. Just as we would never silence the earnest question of a student in our class, we must speak persistence to power and not allow our own questions to go unanswered. When laws, policies, Restatements, changes to testing protocols, and impediments to educational access are proposed, we must take audience with those empowered to enact change. We must seek clarity and reason, because we cannot effectively teach that which we do not ourselves understand.
Thursday, September 26, 2019
Common wisdom often suggests more is better...at least when it comes to passing the bar exam. But, just like more medicine is not always better for one's body (and even poisonous when taking too much), perhaps undertaking more bar-tested subjects as a law student is not associated with increasing bar passage results, at least for those most at-risk of not passing the bar exam. And, perhaps avoiding experiential learning courses is not necessary for students most at-risk of not passing the bar exam. Indeed, the latest forthcoming empirical research is all about exploring common conceptions about the relationships among experiential learning, taking bar-tested electives, and bar exam outcomes.
To evaluate these questions, we turn to two empiricist law professors - Robert Kuehn at Washington University and David Moss at Wayne State University - who have just released "must-read" research analyzing often-expressed narratives about the impacts of experiential learning and bar-tested elective courses on bar exam outcomes. Robert Kuehn and David Moss, A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. (2019) (forthcoming).
First, the authors evaluate the hypothesis that law students should refrain from taking too many experiential learning courses (such as clinics, field placements/internships, and simulation courses), most likely based on the belief that experiential learning crowds out doctrinal learning.
Second, the researchers evaluate the hypothesis that law students should take more bar-tested subjects rather than fewer to boost ones' promise of bar exam success, particularly for those most at-risk of not passing bar exams.
Their research is robust, using regression analysis to evaluate such variables as LSAT scores, UGPA, first-year LGPA, graduating LGPA, experiential learning courses (clinics, field placements/internships, and simulation courses), and bar-tested elective subjects [regression analysis allows researchers to control or take into account the influence of other variables in order to observe whether experiential learning credits and/or bar-tested course work are associated with improved bar exam outcomes].
As indicated in their republished table below, their research spans an impressive 10 year time span, examining first-time bar exam results, for 3891 law school graduates from Washington University and Wayne State University.
Given the depth and breadth of the professors' research, their findings provide food-for-thought for these two questions, at least based on their law school populations, as to whether law students most-at risk of bar failure based on LGPA should take fewer experiential learning courses and/or more bar-tested elective subjects.
As an initial observation, with respect to LSAT scores, both law schools observed relatively consistent LSAT means throughout the course of the ten-year period despite a general downward trend in bar passage rates beginning in or around 2013 and 2014. Consequently, at least based on their law school populations, bar exam declines appear to be unrelated to LSAT admission decisions since LSAT scores remained relatively flat throughout the ten-year research period.
With respect to experiential learning courses, the authors observe that both law schools have seen astounding increases in the number of experiential credits hours that their students are taking over the ten year period, which is not surprising given the American Bar Association's 2014 requirement mandating increased experiential learning requirements in order for law schools to satisfy more recent accreditation standards.
Nevertheless, despite the occasional claim suggesting that law students are taking too many experiential courses, which might compromise bar exam results, the researchers found that there was no statistical association between increases in experiential learning credits hours and bar exam performance (to include those students most at-risk of bar exam failure). Thus, the authors suggest that law schools should not counsel students to avoid experiential learning opportunities.
With respect to bar-tested elective subjects, the authors observed that both law schools have found that more recent bar takers are taking fewer bar-tested subjects than in the past. Perhaps unsurprisingly, the researchers found a modest correlation between taking bar-tested subjects and bar exam outcomes but only for those students with LGPA's that placed them most at-risk of bar exam failure.
However, critically, the authors observed that that was an apparent sweet spot in the number of bar-tested subjects taken by at-risk students such that there was no statistical benefit in at-risk students taking more than the approximate average number of bar-tested subjects at each school (just four electives out of fourteen bar-tested subjects for Washington University students and just seven electives out of nineteen bar-tested subjects for Wayne State students).
In other words, in my reading of their research based on their populations of bar exam takers, law schools might counsel at-risk students to take a handful or so of bar-tested subjects but also advise them that they need not take the entire panoply of bar-tested elective subjects (as more than the average has no empirical benefit of improving bar exam outcomes). And, we should not at all fear encouraging at-risk students from actively participating in experiential learning courses, whether in the form of clinics, internships, and/or simulation courses.
In short, there's much room for curricular exploration by at-risk students without compromising their bar exam outcomes...and that's good news worth thinking about as we meet with our students about their curriculum choices.
Tuesday, September 24, 2019
Last year, one of my international students brought to me a response she had written to a mid-tern exam question. She was wholly perplexed, because the professor had given her a low score on this particular response, and yet, even in looking at the notes the professor had written on her paper, she could not fathom where she had gone wrong. Bizarrely, the more the two of us discussed her essay, the more confused I became about why she had written what she had written. Finally, and wholly by accident, I stumbled across the source of the trouble. At one point the exam question referred to someone being "served", and my student had not recognized this usage as being connected with "service of process". The latter term she understood, but she read the off-hand and abbreviated statement that "X was served" as some form of hospitality, not legal action. ("Have some tea!") This was partly because English was her second language, and undoubtedly also partly because she did not grow up watching movie and TV shows in which frumpy anonymous operatives walk up to the protagonists, slap envelopes against their chests, and say, "You've been served!" For much of our discussion, it had not even occurred to me that this could be a source of confusion, and of course there was no way the student could have known it herself.
I thought about this episode last week, when I was attending a conference hosted by the NCBE, in which some of the presenters were discussing the ongoing evolution of the development of MBE and MEE questions. Part of that evolution includes the elimination, or at least minimization, of the use of terms whose meaning was not tied to the practice of law and might not be recognized by all of the examinees. An example given involved a torts question involving a car that had been damaged in a collision. In the original question, the defendant was identified as "Union Pacific", and it was apparent that the rest of the question was written with the assumption that examinees would recognize Union Pacific as a company that operated railroads, and that therefore the collision under consideration was between a car and a locomotive. The newer, improved version of the question simply referred to the defendant as "a railroad company", thus providing the information needed for proper analysis to all examinees.
Discussion at that point livened up a bit, as presenters and participants brainstormed about other terminology that question writers should considered changing in order to make their questions more accessible. These tended to fall into a few categories:
- References to people, businesses, locations -- generally, things that could be identified with proper nouns -- that might be recognized by some people (but not all people) as possessing some characteristic relevant to the legal analysis. For example, a question that named Gregory Hines as a plaintiff in a case in which his feet were injured might reflect the expectation that examinees would recognize Hines was famously a dancer, and that therefore a foot injury might generate greater damages to him than to an average person. A question that mentions "Reno" might rest on the assumption that everyone knows Reno is in Nevada and gambling is legal there.
- References to technology, fads, or news items from two or more decades ago that most of us who were alive and adult at that time would instantly recognize, but the significance of which might be totally lost on people currently in their 20s. A question that depends on the operation of an answering machine or the effect of a slap bracelet may only be accessible to a portion of the testing population.
- Specialized terms for everyday objects that nevertheless are not commonly used in conversation. A question that depends on knowing the difference between a banister and a balustrade, or between a lintel and a gable, is probably going to lose a portion of the examinees.
It can be hard, when writing exam questions or practice questions, to resist the temptation to make a clever reference or to give examinees the chance for a moment of recognition. But our tests are not supposed to be tests of any vocabulary but legal vocabulary. If an examinee misses the opportunity to demonstrate that he knows the appropriate rule, and can apply it skillful to relevant facts, because he did not have access to the full meaning of the fact pattern so that he could recognize the issue that leads to that rule, then the examinee has been unfairly denied a chance to shine.