Law School Academic Support Blog

Unmasked

It's in the moments of fiery crises that heroism is revealed.  

I think of our students, heroes everyone of them, finding within the resiliency and creativity to successfully adapt to online learning.  I think of the academic support community and law school faculty and staff, springing into action, resolutely empowering novel ways to encourage vibrant learning despite the difficulties.  I think of the many workers - across all walks of life - giving of themselves, in the front lines all of them.  

It's in these hard spots of life, the difficulties and trials, in which our true beings are revealed, unmasked so to speak.  

But there's more unmasking to be done.  And quickly too.  That's because many of our students have just finished their law school studies and are ready to graduate.  Ready to move onto the next step.  Ready to serve and contribute to the world.  

Yet many states are postponing bar exams with no certainty that latter dates will be any better - health-wise - for holding in-person bar exams.  

However that's not the situation that's just been decided by the Indiana Supreme Court.  Indiana is moving forward this July 2020 with a one-day online bar exam. And it looks like Nevada might be joining the movement to an online exam too. And one state, Utah, has taken an even bolder approach in implementing an emergency diploma privilege.  https://www.law.com/2020/05/08/in-a-first-indiana-will-hold-one-day-online-bar-exam-in-july/?slreturn=20200414232636; https://www.nvbar.org/nevada-supreme-court-seeks-comments-by-may-14-re-modification-to-july-bar-exam/

Nevertheless, back in April in a white paper, the National Conference of Bar Examiners (NCBE) brushed aside the possibility of online exams or diploma privilege, arguing that online exams were unworkable and that the diploma privilege was not beneficial to the public good. http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F239.  

When I applied to law school (and for the bar exam), there were no online applications.  It just couldn't be done.  But oh how times change, if only we are willing, courageous, and creative.  Now, I doubt one can apply for law school save through an online application.  The same goes, I suspect, for most bar exam applications.  It's all online now.  Except for the bar exam itself.

The only thing that limits us to the present is us.  

It's not too late for New York, or California, or any other jurisdiction to implement a one-day online bar exam this July.  

But that takes removing the masks that so often keep us living in the present, forever failing to see the future.  And, to be honest, living in the present, when the present of the past no longer exists due to COVID-19, is not really living in the present.  It's living behind the mask of the past.  

The next step is for you - state supreme courts and jurists.  We would like join with you, and local and state bar associations and practitioners, to move forward thus summer, whether that's with an online bar exam or with diploma privilege.  The choice is yours. (Scott Johns).

Bar Exams CAN Be Administered Online

In response to the mounting uncertainty about the administration of the July 2020 bar exam, Indiana has moved its exam online.

By order of the Indiana Supreme Court published May 7, 2020, Indiana will offer a one-day online exam in late July. According to law.com “that makes Indiana the first jurisdiction to commit to an online July exam, and the first to say it is creating its own version of the licensing test.” Indiana was one of the last states to adopt the Multistate Bar Exam, and had, for years, given a purely “state-made” exam. Today, the Indiana exam includes multistate content and state specific essays, so the bar examiners likely have an arsenal of potential test content. Other states, like California and Massachusetts, have made nods towards an online exam, but have not publicly defined what their exam would look like or when it would be administered. Both California and Massachusetts have postponed their July exam until September.

Indiana may soon have company. The Chief Justice of the Nevada Supreme Court filed a petition recommending a temporary modification of its July 2020 bar exam to an online format. The petition is based on a recommendation from the Nevada Board of Law Examiners (BLE). The Nevada BLE proposed to administer a two-day, fully online, exam consisting of eight essays and one Nevada performance test. The Nevada proposal excludes multiple-choice questions. If accepted, Nevada will join California and Pennsylvania in administering its own performance test. The Nevada proposal is open for public comment. Anyone wishing to support (or oppose) the proposal should email the Clerk of the Nevada Supreme Court. Like Indiana, Nevada uses both multistate content and administers a state law essay exam. 

The COVID-19 pandemic has added new layers of stress to the already hectic workloads of the academic support community. ASPers are affected by the pandemic in ways that our doctrinal colleagues are not. Traditionally, we are the ones from whom students seek counsel and clarity about the bar exam and how to prepare for it. Our ability to respond to those questions has been upended by proposed delays and the looming threat that a face-to-face exam cannot be administered in either July or September. All we know now is that we really don't know what will happen or how our students should best prepare. Added to the worry about whether there can be a bar exam at all, is how our students will fare on the exam and what our pass rates will look like.

The Society of American Law Teachers (SALT) called for suspension of ABA Standard 316 mandating that law schools maintain a 75% bar passage rate to remain in compliance. We can reasonably anticipate that bar pass rates will be lower in 2020 than in recent prior years. Students are under extreme stress dealing with pandemic related adjustments, fear of contracting the virus, and fear of spreading it to loved ones. Summer bar takers lack of access to law schools, public libraries, and quiet coffee shops for bar study, because they are not open to the public. Some may be battling illness themselves. Moreover, the administration of three separate exams with comparative and wholistic grading will also likely skew the exam outcomes and lead to a higher number of bar failures than would have occurred had all candidates taken the exam in the same administration. The Bar Advocacy Committee supports the SALT position and will present a letter to the Executive Board of the Association of Academic Support Educators (AASE) for signature, delivery, and public posting. 

In the past, New York has been the state to follow, in terms of bar exam policy and development. Not so, anymore, as the limited seating debacle has cast a cloud of embarrassment and incompetence over the empire state. Who knew that we would see such progressive and compassionate bar policy leadership coming from Utah, Indiana, and now, hopefully, Nevada! It just goes to show that good ideas aren’t tied to population or politics—good ideas stem from compassionate effective leadership. And there is still room for more leaders with regard to the July 2020 exam.

(Marsha Griggs)

A Fun Look at Bar Exam History

The Bar Exam is in the front of everyone's mind right now. When will it happen? Should we change the exam? Does the exam actually measure competence as lawyers? Should we be using diploma privilege instead?

All of these are excellent questions, and handled in much more serious papers, usually by our very own Marsha Griggs!

However, I wanted to take a bit of a fun look at the history of the Bar Exam. I have been reading Robert M. Jarvis' An Anecdotal History of the Bar Exam (9 Geo. J. Legal Ethics 359 (1996)) and wanted to share some highlights.

• Massachusetts became the first state to offer a written exam in 1855. Prior to this, states would issue oral exams, often with a Judge in the district that the lawyer wished to be admitted, or with a lawyer already admitted to that bar. Massachusetts began the written portion for those that couldn't take the oral portion, but in 1876 Suffolk County (the county that Boston, MA sits in) began requiring lawyers to pass a written examination in order to be licensed. In 1877 New York introduced a written exam in addition  to the oral exam.

 

• The oral exam seems like it was less stressful and rigorous than what applicants go through today. Huey P Long – former Gov of LA - passed his oral examination easily. When asked by George Terriberry, an admiralty practitioner, what he knew about admiralty, Long replied” Nothing." When further asked about how he would handle an admiralty matter, long answered “I’d associate Mr. Terriberry with me and divide the fee with him.” Long passed. 

 

• Abraham Lincoln was a bar examiner, and judged to be a very lenient one. According to Len Y. Smith, in Abraham Lincoln as a Bar Examiner, B. Examiner, Aug. 1982 (An article I'm currently trying to find), Jonathan Birch of Bloomington relays his experience with Lincoln. Lincoln essentially asked him "how long have you been studying?" with Birch responding "Almost two years."  According to Birch, Lincoln's response was "By this time, it seems to me," he laughed, "you ought to be able to determine whether you have the kind of stuff out of which a good lawyer can be made."  Then Lincoln asked for a definition of a contract, and then sat on the edge of the bed and began to entertain Birch with stories. Then, took him to the clerk, and gave the clerk a note saying "My dear Judge:- The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He's a good deal smarter than he looks to be. Yours, Lincoln." I am certain almost all of my students would pass either of these oral exams. I have also heard that Lincoln once examined an applicant from his bath tub. I love this story, but have yet to be able to find a reliable source, so take that with a grain of salt.

 

• Before you think that all oral examinations were easy, and most were just a mere formality, they were not easy for everyone. Clara Foltz, the first woman admitted to the CA bar, was administered a 3 hour oral exam. In addition, this "mere formality" was usually a way to find out the applicant was likable, or meshed well with the current bar. You can imagine how this created inequity at the bar.

 

• 7 states allow you to “read” the law – California, Maine, New York, Vermont, Virginia, Washington, Wyoming – this means aspiring lawyers study to be a lawyer and take the bar without attending law school. This is what Kim Kardashian is currently aspiring to do. I can tell you, it isn't easy!

 

• It used to be that 32 states allowed for diploma privilege. Currently only WI allows this. It was abolished in CA in 1917, and most recently, Mississippi in 1981,  Montana and South Daktoa in 1983, and West Virginia in 1988.

 

• New Hampshire was the first state to use a permanent board of law examiners. This occurred in 1872

 

• KY and  VA used to have strict dress codes of business attire. While they still have dress codes, they are not as strict as they once were, which required women to wear skirts and nylons.

• In 1985 Laura Beth Lamb, a lawyer with the securities and exchange commission, dressed up like her husband, Morgan Lamb, to take the California Bar Exam for him. She was 7 months pregnant, and diabetic, and passed the bar with the 9^th highest score on the exam. However, when she was found out she was disbarred, so please don’t try this one. (Also, on a sad note, she claimed he forced her to sit for him after he failed the bar, and threatened and abused her.)

• In July 1985 hundreds of bar exams from the New York State bar disappeared without an explanation.

• Prior to the 1980s, it was more common for states to use geographical exclusions to limit bar admissions, but a series of cases in 1980 struck down suck exclusions.

I hope this gives you a bit of a fun break from the craziness that is the current bar exam!

(Melissa Hale)

Imbroglio

Imbroglio: A complicated situation; a sequence of events so absurd, complicated, and uncommon as to be unbelievable.

Merriam-Webster might as well add a footnote to the July 2020 bar exam administration as an example of the term “imbroglio.” No other term can accurately describe the debacle that surrounds the upcoming bar exam. Blog, essays, and the exasperated cries of bar candidates—summed up in one word. One word with an applicability of meaning that has become self-evident.

A complicated situation – Our nation has become embattled by a contagion that shows no sign of relenting. Across the country, stay at home orders are in place to mitigate the spread of the deadly coronavirus. In states with large numbers of bar takers, there is no safe way to administer the bar exam in the traditional format. Yet, bar examiners and the American Bar Association insist on a bar exam as screening tool for entry into the practice of law.[1]

A sequence of events so absurd – Some states postponed the July exam. Some states canceled it altogether. Some states propose to offer a bar exam in early September; others in late September; others have postponed the exam “indefinitely.” No matter what the states propose, the National Conference of Bar Examiners (“NCBE”) will let us know on May 5, 2020 whether there will be any multistate or uniform exams released in July. States that have adopted the Uniform Bar Exam  (“UBE”) are powerless to administer any exam in July if the NCBE won’t provide the questions, because UBE states don’t write their own bar exams anymore.

Complicated – Epidemiologists tell us that the virus comes in waves. Even with proposed and announced dates for the bar exam, COVID-19 may make it impossible or unwise to administer it in the late summer or early fall. But bar takers cannot afford to wait until there is certainty to begin studying. Many will begin bar study this month, for an exam that may or may not take place. They will study in places that are not libraries or law schools, because those places are closed.

Uncommon – COVID-19 presents an unprecedented situation that will impact the flow of new attorneys into the profession at a time when there will be an increased need for legal services. Extraordinary times call for extraordinary measures, like emergency diploma privilege. Utah adopted a sensible emergency diploma privilege, but the ABA and the NCBE discourage other states from following suit.

Unbelievable – Just when we thought things could not possibly get any worse, the New York Board of Law Examiners announced that it may not have enough room to allow bar applicants from out of state law schools to sit for the exam that it hopes to administer on September 30 – October 1. In that same announcement, and with hold-my-beer momentum, the New York bar officials strongly encouraged candidates “to consider sitting for the UBE in other jurisdictions.” That this advice was given without regard for the COVID precautions of other states, and at a time when very few other states were still accepting applications, defies comprehension.

I won’t ask, “what could happen next?”

(^©Marsha Griggs)  

 

[1] ABA STANDING COMMITEEE ON BAR ACTIVITIES AND SERVICES LAW STUDENT DIVISION RESOLUTION [sic] (04/07/020) “the Resolution does not . . . modify or limit the historic and longstanding policy of the ABA supporting the use of a bar examination as an important criterion for admission to the bar.”

So you failed the bar....

What's next? 

1. Take a minute, it’s ok to be upset.

First and foremost, this does not define you. Trust me, we have all heard stories of prominent lawyers, judges, and politicians that have failed the bar, sometimes multiple times. I could make you a list of all of the successful lawyers that were unsuccessful on the bar exam their first time.  But I won’t, because failing the bar does not define them. If you try to make a list, you won’t find “failed the bar” on Wikipedia pages, or official biographies, or resumes. It’s not because it’s some secret shame, but because no one cares. In 5-10 years, no one will care how many times it took you to pass the bar. In fact, they won’t care in 6 months or a year. It seems like a defining moment right now, but it isn’t. Your defining moments come from the way you treat clients, the way you treat colleagues, and what you choose to do with your license once you have it.

So, take a few days to be upset, it’s ok. But then dust yourself off, and start looking towards the next bar. Also, remember that failure is not the opposite of success, it’s a part of success. Every successful lawyer has failed – on the bar, at trial, in a negotiation, not getting a job. Every failed politician has lost a race. Every failed Olympian has lost a game or a match. That failure is a normal way to achieves success in the future. However, for that to be true, you have to learn from failure.

2. Meet with Someone.

Reach out to your school's academic support or bar professionals.  We want to meet with you, and we won’t judge. We will provide a sympathetic shoulder, and we will talk out a plan. Trust me when I say that we WANT to hear from you.

3. Request your essays back, if you can.

Many states allow you to request, or view, your essays.  

Once you have your essays, I want you to do a couple things. Review your answers: now that you are removed from the day of writing, what do you notice? Then, if possible, compare them to the sample answers. See if you can pick out patterns. Don’t just focus on the conclusions, or the issues spotted. Did the sample answers use more facts? Or have a more in depth analysis? Be honest with yourself. Also, if you have a varied set of scores (one essay is a 1, while another is a 5) compare the 2. What is the difference? Don’t just shrug it off as you know one subject better. Pay attention to the writing in both.

In addition, here is a CALI lesson (you should still have access) on assessing your own work. It may seem geared towards law students, but it can help you assess your essays: https://www.cali.org/lesson/18101

4. Analyze your score

How close or far away are you from passing? Did you do better on a certain subject? Is your written score considerably better than your MBE score? This is an excellent place to start. Some things to keep in mind:

• If your essay score is higher than your MBE, it may be tempting to place most of your energy into MBE practice, and forget about essays. This will only result in your score “swapping.” So, while it is good to note that you might need more work on the MBE, don’t forget that you aren’t carrying the score wit you so you still need to practice essays. The reverse is true if you did better on MBE than the essays.
• Perhaps you did really well on the torts MBE, but your lowest score was civil procedure. Again, do not just focus on civil procedure, and forget other subjects. Your scores will just swap places, and not improve overall.
• You might be only 2 points away from passing. Great! However, your score is still starting from scratch. Meaning, in one sense, you only need 2 more points, but that’s not how the bar works, obviously. You have to still work to get the points you already got AGAIN, and it is likely you forgot things, and are out of practice.

5. Think about external things while you were studying

Did something unrelated to the bar impact your studying? Perhaps a health issue, physical or mental? Perhaps a family emergency, or ongoing family issues?

Have you suffered from anxiety in general or related to exams? If you do, are you being treated for the anxiety?

These things can and will impact your studying. Not matter how much time and effort you put in, if you are not physically and mentally healthy, you won’t process the information correctly.

Not to mention, if there is something in your life that is distracting you, that will also impact how you process information.

6. Accommodations

If you were entitled to accommodations in law school, did you use them on the bar exam? If not, make sure you apply for them this time around. If you were denied accommodations, still try again. They likely need more recent testing, or paperwork.

7. Think about study habits

The most important thing you can do is practice. Many bar students get caught up in trying to memorize every sing law, or master every subject. While this is admirable, and takes quite a bit of time and effort. However, mastering the bar is a SKILL. You need to practice. When I work with repeat takers, I often find that they knew the law, and they studied hard, but didn’t practice enough essays or enough timed MBE.

This matters for a few reasons. One is timing. You can know all the law in the world, but if you can’t write an essay in 30 minutes, you will struggle to get the scores you need. Similarly, doing 100 MBE questions in 3 hours is not easy, even if you DO know the law. You need to practice the timing, and practice for the stamina.

Secondly, the skill being tested on the bar is applying the law to the unique set of facts. Yes, you need to know the law to do this, but knowing the law is not enough. You need to practice the application.

This means that writing essays, fully out, not just passively reading sample answers or issue spotting, is key. It has to be a priority in studying.

In fact, all of your studying should be active. Don’t focus on rewriting, or reviewing, outline after outline. Again, yes, you need to know the law, but you are also more likely to remember the law if you apply it – in MBE questions, writing essays, and so forth.

8. Change it up!

Different study habits work for different people. If you studied at home and found that you were easily distracted, find a space at the library or nearby coffee shop to study. If you did go the library/school/coffee shop every day, maybe try studying at home.

Finally, I am here for you. I am a resource, and look forward to helping you!

Available Resources:

• CALI Lessons on improving multiple choice:

https://www.cali.org/lesson/18100

https://www.cali.org/lesson/18024

• CALI Lessons on improving memory: https://www.cali.org/lesson/18157
• CALI Lesson on issue spotting: https://www.cali.org/lesson/18169
• CALI Lesson on improving analysis: https://www.cali.org/lesson/18171
• Adaptibar: https://www.adaptibar.com/ (See Prof. Hale for possible discounts, or no cost options)
• Strategies and Tactics for the MBE: https://www.amazon.com/Strategies-Tactics-MBE-Bar-Review/dp/1543805728/ref=sr_1_1?gclid=CjwKCAiA-vLyBRBWEiwAzOkGVArOgksVIJF-Ay7c5WMFApM2Dic8N2-DFZSxm95A23E0b-sHif7OthoCQmQQAvD_BwE&hvadid=241627170717&hvdev=c&hvlocphy=9021760&hvnetw=g&hvqmt=e&hvrand=7692014818673609309&hvtargid=aud-840076997981%3Akwd-555060935&hydadcr=22595_10356262&keywords=strategies+and+tactics+for+the+mbe&qid=1583177627&sr=8-1

 

Once again, remember that this doesn't define you. This is one step in the process, and that's it. 

Good Luck!

(Melissa Hale)

Will the Bar Exam Go the Way of the 8-Track Tape?

For the times they are a-changin’. -Bob Dylan

The times certainly have changed. Almost overnight, every facet of daily life has transitioned to online delivery. Telehealth and telemedicine are becoming the primary source for doctor-patient interaction during the pandemic. Law school classes are online. College classes are online. K-12 primary education is online. Church and religious services have moved to online formats. My grocery and organic farm-to-table products —gone online. Court hearings, also online. I can buy a car, entirely online. I can have legal documents notarized online.

But I cannot take the bar exam online. At least not yet.

The COVID pandemic has tested our resolve and our ability to utilize available technology. Almost every aspect of the legal profession, from court proceedings and probate administration, to law enforcement and legal education, has mobilized for remote administration. Bar examiners at the state and national levels should hang their heads in shame for not harnessing the available technology to deliver the existing exam remotely. It is an embarrassment of epic proportions that those at the helm of legal licensure are so behind the times that the pipeline for entry to the legal profession could be closed until further notice.

Relentlessly tethered to tradition, those insistent that 2020 law grads take an exam that may not be offered until early 2021 have either dropped the ball or are hiding it. It is fundamentally unfair to require an exam for licensure and at the same time withhold that exam from licensure candidates. The cries for diploma privilege and supervised practice options have sounded around the world. To which bar examiners and high courts have responded with either feigned indifference or a proposed solution that is no more than a band-aid for a gaping wound.

To become attorneys, bar candidates should not have to risk their health or the health of their vulnerable loved ones to the spread of the coronavirus. Even today, there are still more unanswered questions than answers. The majority of U.S. jurisdictions have made no announcement as to whether they will offer an exam in July or not. A number of states have canceled the July exam, but still have not announced definitive information about the date or form of the replacement exam. Candidates across the country remain in the dark as the bar exam becomes an archaic qualifier for competence. If the bar examiners hold fast to the pencil and scantron method of testing, we can expect to see it go the way of the pay phone, the answering machine, and the 8-track tape.

Two states, California and Massachusetts, have alluded to an online exam, but with little detail. It remains unknown what role the National Conference of Bar Examiners (NCBE), who produces the multistate exams used in all states except Louisiana, will play in the online exam. If the NCBE can provide an online exam for two states, why not do so for all UBE jurisdictions? And why make candidates in other states suffer the risk of exposure to COVID or career delays by withholding the online exam?  

If the NCBE has not developed an online exam, we must ask “why not” and "where has it been for the last two decades?" And we must not accept “test security concerns” as a viable response. Test security is no less of a concern to law school faculty, and to those who administer admissions exams. Yet all law school exams and the LSAT will be offered online in May 2020. The MPRE (another NCBE exam) and other professional licensing exams are already online.

Whether the bar exam effectively assesses one’s competency to practice law is a reoccurring question that will continue to resurface.  At a time when virtually every state, except maybe Utah and Wisconsin, is under fire for indecisiveness and poor communication regarding the fate of would-be July 2020 bar takers, bar examiners are justifiably under scrutiny. As is the bar exam. The future of the exam is in the examiners’ hands. We’ve only to watch and see if they’ll respond like Blockbuster or Netflix.

(Marsha Griggs^{© 2020})

Is the Bar Exam Necessary?

Nearly every lawyer has a bar exam story.  For some, it was sleepless nights studying.  Others experienced trauma during the preparation period.  I walked under the wrong bird on my way into the exam.  Ask any lawyer, and they will tell a story.  Is the collective experience enough for continued administering the current bar?  The current crisis necessitates asking whether the current bar exam is an appropriate assessment tool.  Brian Tannebaum published this week that the answer is no.  He said the bar should be cancelled forever. (hat tip to James McGrath)

The bar exam debate reached the boiling point this year due to COVID-19.  The 2015 addition of Civil Procedure to the MBE and subsequent crash in national MBE scores raised red flags about the test.  In front of over 100 experts in learning and student achievement, a NCBE representative (current president) ignored and ungracefully punted when questioned about cognitive load theory.  The continued decline in scores caused numerous questions about the MBE.  Now, the COVID-19 crisis could prevent safely administering the bar exam, and state bars must answer the question whether bar exams are necessary for licensure.

The NCBE obviously says the bar exam is critical to licensure.  In a white paper some would describe as insensitive during the current crisis, the NCBE promoted the virtues of the bar exam.  The exam protects the public by ensuring a level of competence by everyone licensed.  You can read their white paper here. 

I am skeptical of the white paper arguments though.  Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public.  They espouse the MBE's greatness through reliability and validity.  Their argument is an objective MBE is fair, and thus the best assessment.  The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law. 

For a paper I want to publish, I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company.  Approximately 20 agreed to take the exam.  The practice experience ranged from 1 year to over 15 years.  Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135).  A litigator passed the Evidence section, but no one else passed the subject they practiced the most.  ADAs and PDs failed the Crim Law section.  Transaction attorneys failed Contracts.  As attorneys' experience increased, MBE scores decreased.  I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test.  The results were the same for everyone.

The argument the bar exam protects the public assumes the exams tests what a lawyer does for the public.  Unfortunately, the MBE fails to test minimum competency to practice law, which is the threshold for licensure in virtually every state.  It tests competency to answer MBE questions which allude to legal concepts within the questions.  I know the criticisms of my research.  It isn't statistically significant and the test isn't a real MBE.  Finding lawyers to voluntarily take a bar exam isn't an easy task.  However, I fully believe the result would occur on a larger scale.  I encourage bar examiners, Supreme Courts, and anyone advocating for the MBE (including lawyers at the NCBE) to take a simulated MBE.  I encourage the NCBE to make a real version of the MBE available for the test and independent score verification.  If a large majority of participants pass, then the MBE tests minimum competence to practice law.  However, if they don't, then maybe the wisdom from learning experts about cognitive load, spaced repetition/the forgetting curve, and other learning science can be used to create a test that truly assesses the minimum competence to practice law.     

COVID-19 is accelerating an ongoing feud over the bar exam, especially the MBE.  This debate will continue, so I encourage everyone to evaluate the information related to the bar.  We can use this time to either modify or solidify the current licensure process.  Previous generations' experience should not be our guiding principle for an exam.  Even if I am wrong, now is the time for boards, Supreme Courts, and the NCBE to evaluate the way we license attorneys.  Confidence in what we are doing actually protects the public should be paramount.

(Steven Foster)

Unanswered Questions

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.

(Marsha Griggs)

The (Emergency) Return of Diploma Privilege

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.[1] When the American Bar Association denounced diploma privilege, states began to move toward examination as the gateway to licensure.[2] 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[3] 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 today's 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?

(Marsha Griggs)

 

[1] Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wis. L. Rev. 645, 646 (2000).

[2] 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).

[3] 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.

An Open Syllogism to Bar Exam Regulators

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:

Issue:

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.

Major Premise:

Like situations can be treated alike.

Minor Premise:

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.

Conclusion:

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!

(Scott Johns)

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.

The Bar Examiners Don't Seem to Be Listening

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.

(Marsha Griggs)

Excerpted from An Epic Fail,  Volume 64 Howard Law Journal _____ (2020)(forthcoming).

It's Time to Consider Licensure Alternatives for the Class of 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."

(Marsha Griggs)

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.”

MPRE Law or MPRE Culture

Every once in awhile I have a "aha" moment.  I stumbled into this one, and I'm not the same because of it.  

As background, a student reached after having failed the MPRE on multiple tries despite having watched commercial bar review lectures, creating personal study tools, and working lots and lots of practice questions.  

I was so impressed with the student's preparatory efforts.  The student had created spectacular blackletter study tools.  The student knew the law backwards and forwards and could retrieve rules in a flash.  And yet, the student missed question after question despite lots of practice in working through and analyzing problems.

That's when it came to me.  

My student had learned the law - cold - but was still missing questions because the student had not learned the culture of how the law was tested.  Based on my student's prior experiences as an attorney, I asked how my student had learned to solve legal problems as an attorney.  My student explained that the key was in learning the culture of how the law applied to client problems.  

Likewise, I suggested that perhaps the key to success on the MPRE lies in learning the legal culture of the MPRE. With this thought in mind, my student focused preparation efforts anew on learning MPRE culture rather than MPRE law.  And guess what?   The student passed the MPRE with flying colors!  

Based on this admittedly anecdotal experience, my sense is that many students do not pass the MPRE because they focus on learning the wrong thing.  They try to learn the law without learning the socio-legal context of how the law applies - the culture of the law.  

With this thought in mind, I now suggest to students that they work through practice problems as armchair legal sociologists to learn the culture of what is being tested. In short, in my opinion, the MPRE doesn't really test the law as much as it tests the legal culture of the law.  (Scott Johns).

 

The Importance of Growth and Grit

This week we, as in the legal community, are in the midst of the February Bar Exam. For many taking the Feb exam, this can mean that they weren't successful in July. This isn't always the case, there are plenty reasons to take the bar exam in Feb for the first time. However, working with repeaters has made me reflect quite a bit on growth mindset and the importance of grit. 

Grit is defined, by the Merriam-Webster dictionary, as "firmness of mind or spirit, unyielding courage in the face of hardship." Growth mindset is a frame of mind, a belief system we adopt to process incoming information. People with a growth mindset look at challenges and change as a motivator to increase effort and leaning. Most experts agree that grit and growth mindset are the most important factors in success. 

Let's start with Grit. An entire book on grit was written by Angela Duckworth.   (See her website for information on her book, as well as her grit scale - https://angeladuckworth.com/) Angela Duckworth is a professor of psychology at the University of Pennsylvania, and founder and CEO of Character Lab. She started studying why certain people succeed, and others don't. She began at West Point Military Academy, studying why some complete the "Beast Barracks", essentially a boot camp, while others drop out. Given that to get into West Point, there was a certain similarity of background, in term of grades, extracurricular, etc. she set out to see if she could predict who would make it, and who wouldn't. It turns out they couldn't predict this based on grades, or background, but could base it on a grit scale that Prof. Duckworth created. The grittier the West Point cadet, the more likely they would complete the "Beast Barracks". She later expanded on her studies and found that the grittier you were, the more likely you were to complete a graduate degree. She further expanded this to other professions, Olympians, etc, and found that generally, the more grit you had, the more like you were to succeed.

This applies to law school, the bar exam, and the practice of law. Grittier people get back up. They fail, but they learn from that failure and try again. And sometimes try over and over again. However, the key is always learning WHY you failed. This brings me to growth mindset. Dr. Carol Dweck coined the terms "fixed mindset" and "growth mindset." These terms describe the underlying beliefs we have about learning and intelligence. 

Professor Dweck explain why a fixed mindset can negatively impact all aspects of your life, but especially your learning:

"Believing that your qualities are carved in stone creates an urgency to prove yourself over and over. If you have only a certain amount of intelligence, a certain personality, and a certain moral character, well then you'd better prove that you have a healthy dose of them. It simply wouldn't do to look or feel deficient in these most basic characteristics.
I've seen so many people with this one consuming goal of proving themselves in [a learning setting], in their careers, and in their relationships. Every situation calls for a confirmation of their intelligence, personality, or character. Every situation is evaluated: Will I succeed or fail? Will I look smart or dumb? Will I be accepted or rejected? Will I feel like a winner or a loser?
But when you start viewing things as mutable, the situation gives way to the bigger picture.
This growth mindset is based on the belief that your basic qualities are things you can cultivate through your efforts. Although people may differ in every which way in their initial talents and aptitudes, interests, or temperaments, everyone can change and grow through application and experience.
This is important because it can actually change what you strive for and what you see as success. By changing the definition, significance, and impact of failure, you change the deepest meaning of effort."

In short, if you focus on learning for learning's sake, and not the end result, like grades or the bar exam, you will get more out of your effort! As a law student, focus on learning the law, and learning to be the best lawyer you can, will help you be more successful.  (Here is the website on mindset, where you can take a quiz to find out where you are on the mindset scale, and learn more about the years of research done by Prof. Dweck - https://www.mindsetworks.com/science/)

Grit and growth mindset also take practice. Those that are grittier know that they have to put in the time and effort, that no one is just a "natural" - there is always behind the scenes work. Again, this also takes serious self reflection to learn from each failure, and to learn from each success. If you are a law student, assess your exams. Learn to assess your practice hypotheticals. Reflect on how you can improve. If you are studying for the bar, learn to track MBE questions and learn from each practice essay. If you are a practicing lawyer, learn from each and everything you do, whether it ended in a win or a loss. There is always room for improvement, and that is what makes successful people successful. 

I don't think lawyers, as a profession, talk enough about our failures, or ways we can improve. Therefore, the messaging doesn't get passed down to students. But we have to make it the norm to fail, and get back up again. That needs to be part of our culture.

It should also be noted that I'm biased, because as I'm writing this I'm working on an entire CALI lesson on growth mindset and grit for law students, so if you are a student, look for that soon, and if you are a professor, feel free to pass it along to your students. In that lesson, I encourage students to reflect on failures, and what they learned. I encourage you all to share your failures, and how you bounced back, with your students. 

Stay gritty! (Melissa Hale)

We See You

The bar exam is so much more than a test. It is an arduous all-encompassing journey that begins with months of study and practice. Today, the journey comes to an end for the February bar takers. As we send positive thoughts and well-wishes to our students taking the bar exam, we should consciously acknowledge the individuality of the journey for each student, the diversity of experiences, and the sacrifices that were made to reach this point.

Bar takers of all ages and backgrounds have sacrificed, surrendered, lost, ignored, delayed, and missed so much while studying for the bar. Yet, life circumstances would not pause during bar study. Some wed, or welcomed a new child; others dealt with the loss of a pet or family member; some faced separation or divorce; while others moved in, moved away, or moved back home. There are bar takers who made the necessary decision to leave young children in the temporary care of  family or friends, while others had to find ways to incorporate parenting and family time, or perhaps elder care, into the bar study routine.

For so many, there were financial struggles. Students took out loans to pay for a bar course, to eat, to live. Some quit their jobs for full-time bar study; others lost their jobs because they could not keep up with the hours and the demands of study. Repeat takers managed the stigma and financial distress of a second, or third, bar prep period. No dollar amount can truly capture the real cost of studying for the bar. There is a toll on your body, your back, your hands, and your eyesight.

Bar takers everywhere, we see you. We acknowledge your struggle. We affirm your efforts and we cannot wait to celebrate your success!

(Marsha Griggs)

Who Am I to Pass the Bar?

Bar takers, you have seven study days remaining to prepare, to take one last look at your bare bones outlines, to try to crack the code for recognizing recording statutes, and to improve your speed at performance testing.[1] Adding to the angst of sitting for an exam that will determine entry into your chosen profession, is the foreboding fact that national bar passage rates have declined and not returned to prior years heights.[2] News from bad to scary, logically, can lead to doubt and self-debasing thoughts like who am I to pass if as few as four of every 10 bar takers pass the bar in some states?[3]

The negative thoughts creep in and resound even louder to those who entered law school against the odds. Those with LSAT scores below 150; those who juggled working to provide for a family by day, and the competitive rigors of law study by night; those who managed the anxiety of chronic illness and attendance requirements; those who faced implicit biases that created a presumption of lower competence and precluded their appointment to prestigious posts; those whose humble social or financial backgrounds placed them in a daily battle with imposter syndrome; those whose law schools don't rank elite; and those who’ve found a home in the bottom quartile of the law school class are left to silently question who am I to pass?

Let these words be the fight song for the academic underdog. You entered law school, wind at your front, and made it. You fed your family and persevered. You commuted two hours to and from school and made the 8:00 AM lectures. You tutored yourself. You feared failure, but kept going. You ignored the rankings, and focused on your exams. When things got hard, you got harder. So to those who still question, who are you to pass . . . ?

I ask the better question: who are you not to?

(Marsha Griggs)*

 

[1] The Louisiana Bar Examination is administered February 17 – 21, 2020, eight days before the administration of the Uniform Bar Exam and other state bar exams.

[2] Mark Hansen, Multistate Bar Exam Average Score Falls to 33-Year Low, A.B.A. J. (Mar. 31, 2016). See also Jeffrey Kinsler, Law Schools, Bar Passage, and Under and Over-Performing Expectations, 36 QUINNIPIAC L. REV. 183, 187 (“Between 2009 and 2013, nationwide firsttime bar passage rates remained in the high seventy percentile range with three years at 79%, one year (2013) at 78%, and one year (2012) at 77%. Those nationwide bar passage numbers slid from 78% in 2013 to 74% in 2014, 70% in 2015, and 69% in 2016.”).

[3] Joshua Crave, Bar Exam Pass Rate by State, LAWSCHOOLI (Jan. 29, 2019), https://lawschooli.com/bar-exam-pass-rate-by-state.

*adapted from BarCzar Blog originally published April 2018.

The Other Side of Bar Prep

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.

[1] Marsha Griggs, Building A Better Bar Exam, 7 Tex. A&M L. Rev. 1 (2019).

[2] Id.

[3] 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/

(Marsha Griggs)

The Allure and Allusion of Score Portability

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.[1] 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.”[2] 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.[3] “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.”[4]

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.[5] 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)

 

[1] Marsha Griggs, Building a Better Bar Exam, 7 Tex. A&M L. Rev 1 (2019).

[2] Interview with Ashley Heidemann, President, JD ADVISING LLC (Mar. 25, 2019).

[3] Id.

[4] Id.

[5] Joan W. Howarth, The Case for a Uniform Cut Score, 42 J. LEGAL PROF. 69, 72 (2017).

Holiday Study Breaks and the Bar Exam

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.

1. 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.
2. 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!

(Melissa Hale)

Personalized Learning

I read an article last week about personalized learning in K-12.  The article discusses how one school is attempting to use time management software and digital tasks to allow students to work at their own pace to learn material.  The school monitors students to make sure they stay on a reasonable time table, but if they are on track, students begin learning self-regulation at a much earlier age.  This is a skill many of our law students need.

The article's main topic was that personalized learning is hard i the K-12 context though due to time constraints.  Other schools aren't implementing these strategies because they aren't practical.  School days and academic calendars make self-regulation difficult.  State standardized tests mandate certain outcomes by certain dates.  Time constraints prevent more schools from promoting this self-regulation.

I think the bar exam promotes a similar problem.  Students should be able to learn the material for the bar at their own pace.  If they need more time because they are working, then they should be allowed more time to study.  However, the exam is not setup that way.  The exam is only administered twice a year, and if a student is not on the NCBE timetable, then they risk not passing.  The time constraints of the bar dampen student autonomy.  The lack of autonomy causes additional stresses and difficulties for some students trying to learn the material.

You can read the article here.  It focuses on K-12 education, but we could use the information when considering our students.

(Steven Foster)