Saturday, October 21, 2023
A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative
As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration. One of my favorite aspects of full time appellate practice was just that: time. I treasured having more time--albeit never enough time--than I had in trial practice. I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court. Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research. Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients. In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized? Neither have I.
In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar. The Bar is considering whether to adopt a pilot for this PBE alternative. You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here: https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf. In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure.
The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test. Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision. These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients. As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.” Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).
How would this work? Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.” Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.” https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.
Of course, not everyone favors the PBE proposal. Some opponents raise thoughtful and important issues of bias and discrimination. A small pilot can help us address these concerns. Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities. See https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion. As former Trustee Mendoza explains:
The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly. Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.
The most vocal opposition seems to be from people connected to profitable bar preparation courses. Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising. See id. While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.
The State Bar is asking for public comment on the PBE Pilot. The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys. If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”: https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.
If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button. The Bar has also provided a box for typed or uploaded comments. The deadline to comment is Wednesday, October 25, 2023. I clicked “AGREE” and completed my comment in less than two minutes. I urge you to weigh in on this important question too.