Saturday, November 16, 2013

State Bars Should Add Drafting to the Bar Exam

Below, one of my co-bloggers has a post concerning the New York City Bar Association’s Task Force on New Lawyers in a Changing Profession Report.  Among the changes suggested by the Task Force is "Reviewing the Bar Exam.  A City Bar working group to report within a year on potential changes to the way New York State tests the qualifications of those seeking to be licensed to practice law in the state."  In this post, I would like to focus on the Task Force's recommendation concerning the bar exam.

The Report states, "The requirement that lawyers pass a state-specific bar examination testing a broad range of state and federal law also has operated as an impediment to innovation in legal education and the career development of new lawyers."  The Report continues. "In particular, critics argue that they [bar exams] are antiquated and fail to test the relevant skills needed to be a lawyer in the twenty-first century. First, the exams ask questions that can easily be answered through legal research. Second, the exams test an applicant’s memory about information that will quickly be forgotten after the exam. Third, most lawyers specialize in their practices, rendering the majority of the information learned for a bar exam irrelevant. (Criminal lawyers have little use for the intricacies of state commercial paper law; corporate deal makers do not need to know state-specific civil procedure.) Finally, and perhaps most importantly in an age requiring graduates to be practice ready, bar exams test few lawyering skills."

As I posted last month, "for the most part, the bar exam does not test what lawyers do in practice." "One of the topics we discussed at the ETL conference was whether states need to change the bar exam.  Most of us thought that states need to radically change the bar exam.  I would say that states need to reinvent the bar exam."  I added, "The bar exam also has a significant influence on what law schools teach.  Like it or not, much of what law schools do is prepare students to pass the bar.  Consequently, law schools are forced to teach in a way that may not be the best way to prepare lawyers for practice."

I believe that part of reinventing the bar exam is to add drafting problems.  Lawyers draft pleadings and documents.  Accordingly, the bar exam should test applicants' drafting skills.  Applicants should be required to draft a complaint, and they should be required to draft a contract, will,  lease, or other document. 

(Scott Fruehwald)

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