Bar Exams

Assessing California's Bar Exam Cut Score

Should California lower the bar cut score?

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Is law school worth it as a part-timer?

California’s two day bar exam is over (the first two day exam amid teeth-gnashing of all of us who had to take the three day exam) and so while examinees wait for results, the debate continues over whether California should lower its “cut score” of 144, second highest in the nation; only Delaware’s is higher.

Law school deans, legislators and others have weighed in on the desirability of lowering the cut score, which is a decision that the California Supreme Court will make. The State Bar held two days of public hearings earlier this week and is soliciting public comment.

Two options are presently under consideration: keep the current cut score of 1440 or lower it to 1414 as an interim cut score, pending the conclusion of other studies. The July 2016 pass rate would have increased from 43 to 47 percent had 1414 been used. If 1414 is adopted, then it could be applied to the July 2017 exam.

Just the other day, I received an email, along some other State Bar members, asking me to complete a brief survey on where I thought the cut score should be. I’m not going to share my answers with you, but I thought I would share the survey with you.

The survey first asks the member to select the “option that best represents your view about the cut score for the California bar exam.” The four choices are “keep the current cut score of 1440,” “lower the cut score to 1414,” “lower the cut score further below the recommended option of 1414,” and of course, the fourth choice, the ubiquitous “other.”

In a recent column in The Los Angeles Daily Journal, Los Angeles Superior Court Judge William Fahey thinks it’s best to leave well enough alone. Judge Fahey says that in discussions with his bench colleagues, no one has complained about a shortage of lawyers in California. He says that advocates in favor of lowering the cut score have not addressed how lowering the cut score would impact the public and the courts.

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Would lowering the cut score improve the provision of legal services to underserved communities? Most successful bar passers have massive amounts of debt, and unless there’s forgiveness of debt for going into such communities, as there is for physicians, would there be more lawyers to serve the underserved?

Judge Fahey would advocate raising the cut score, based on what he’s seen before him in his almost twenty years on the bench. (Raising the cut score is not one of the options the survey presents.) He says those while most attorneys are professional, prepared, and do a good job of representing their clients’ interests, that’s not true for all lawyers, and he provides a litany of issues that he sees.

Those issues include a lack of understanding of basic procedural requirements or worse, a failure even to read them, the inability to speak and write persuasively and coherently, let alone use proper grammar or complete a sentence. The judge also speaks of attorneys who do not understand basic black letter law, fail to file moving and/or responding pleadings, and even fail to show up for court.

One of the problems that newer lawyers have today is that they don’t have much, if any, courtroom, let alone trial, experience and don’t have ways to get it. Judge Fahey notes that some lawyers don’t have even a basic knowledge of evidentiary rules, don’t know how to lay a foundation for the introduction of evidence, don’t know how to examine or cross examine witnesses, or how to introduce exhibits into evidence.

That kind of knowledge doesn’t necessary come in law school. However, effective January 2018, California state accredited schools will incorporate the teaching of practical skills as part of the required curriculum. Each law school will provide 15 units of practice-based competency training in their JD curriculum.

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I digress. The State Bar survey asks for the attorney’s opinion on what are considered relevant factors to determine the cut score. So, on a scale of 1 to 10, 1 being “not important at all” and 10 being “very important,” how would you rank these factors?

1. “Maintaining the integrity of the profession.”

2. “Protecting the interest of the public from potentially unqualified attorneys.”

3. “Increasing diversity of attorneys from different backgrounds.”

4. “Increasing access to legal services to underserved populations.”

5. “The fact that the cut score in California is the second highest in the nation.”

6. “Declining bar exam pass rates in California.”

7. “The burden of student loan debt for law school graduates unable to find gainful employment after failing the bar exam.”

The survey then asks for some personal information about the responder: year of admission to the California Bar, type of law school graduated from (e.g. ABA, California accredited, unaccredited, etc.), how many times the responder took the bar exam before passing, current employment status, gender identity, and race/ethnicity identity.

So, what do you think? Keep the status quo or lower it? I have heard complaints from other dinosaur lawyers about the quality of representation provided by newer lawyers. Since the practical skills they have are often inadequate, that makes it harder to handle a matter with the unfortunate collateral consequence of that inexperience causing increased client fees.

As we all know (or should know), it’s easier when there’s competent counsel on the other side, who understands that no case is perfect, that fighting over every little picayune detail only makes for intransigence on both sides. When you have experienced and knowledgeable counsel on the other side, who is civil, courteous and reasonable, handling a matter becomes almost pleasurable, rather than the hostile, nasty environment it usually is today.

Stay tuned. The bar Board of Trustees will make its recommendation to the Supreme Court, which should decide sometime this fall if the goal is to decide the cut score in time to affect July bar results. If the State Bar’s mission is public protection as set forth by statute, then what would you decide? If the purpose of the bar exam is to assess minimum competency for law practice, then what should the passing score be? Your thoughts?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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