Bar Exams

To Cut Or Not To Cut (The Bar Exam Passing Score)

Does the mission of public protection conflict with lowering the passing rate for the bar exam?

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That is the question. (Sorry, Hamlet.) Every lawyer has a horror story about his/her bar exam. No one gets through the bar exam unscathed psychologically. 

There’s been a huge debate raging here in California about what the “cut score” for bar passage here should be. Right now, it’s the second highest in the country; Delaware is first. Given the lower bar passage rates and with my alma mater, Whittier Law School, throwing the towel and closing, the issue is whether to lower the passing score, if at all, and if so, what should that magic number be?

The California Supreme Court has decided that it’s time for it to decide what the passing score should be, and not the Committee of Bar Examiners. Since Staci’s post asked for comments, I thought “never waste an opportunity.” So here goes.

If you consider the bar exam not only a rite of passage, but of endurance, then the brand spanking new two day California bar exam on display later this month is for wimps. One day is given over to the multi-state, and now there’s only one day of essays. We dinosaurs suffered (that’s the politest term I can use) through a three day exam, including one day of multi-state. Bar takers here in California have done well on the multi-state. It’s the essays that have been the downfall of many bar examinees. I’m not surprised. Deans, law professors, and others complain about the low score on essays, but golly gee, if you can’t write cogently, spot the issues, know the law, and apply it to the facts, then what chance do you have to be an effective, persuasive lawyer? How much practice essay writing do the law schools do? 

Some years back, friends of mine had an online writing program here in California to help students improve their writing, both for the first year “baby bar,” and then for the bar exam. I critiqued student essays for several years. Knowledge of IRAC (what’s that, you ask?) was practically, pathetically non-existent. Very few of the students could write a decent essay question. In other words, most of the essays were junk.

Why?

1. The students couldn’t/didn’t follow the call of the question. Either they didn’t understand it or didn’t think it was important. Why not? I couldn’t tell you, but they would go off on tangents that had nothing to do with the question at hand.

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2. Issue-spotting. Res ipsa loquitur. If you can’t spot issues, then you’re toast. How do you learn to spot issues? By writing, writing, writing essay questions until you’re sick to death of them, and then writing some more. The only way to understand issue spotting is to do it, over and over and over again. Hopefully, bar review courses do that. They did in my day.

3. Students spilled their guts about their knowledge of the law in the particular area, but again, they couldn’t/didn’t analyze what the question sought in terms of the applicable rule of law. Knowledge of the law in a vacuum is not helpful. The student clearly wanted to impress the reader, but the barfing of general legal principles did no good. A court couldn’t be less impressed with the breadth of your knowledge. Specifics matter.

4. Another problem: students had trouble applying the law to the facts and analyzing them. The facts are there for a reason; use them. 

5. In these days of texting and emailing, writing has become a lost art, especially the ability to express logically and critically what’s at issue. Grammar sucked in these essays. Such simple things (that we learned in high school, if not earlier) as the lack of subject-verb agreement, incomplete, run-on  sentences, as well as punctuation errors and typos littered the essays. No one thought that proof-reading mattered. Perhaps as the bench gets younger and younger, there will be less care for these dinosaur niceties, but I can’t believe that a court isn’t going to give more credence to a well-written, cogent brief that addresses the issues concisely and clearly than to one that rambles, looks sloppy, and never applies the law to the facts.

We all know that in the last few years, law school enrollments have dropped. Some law schools have responded by reducing class sizes. Some say that there’s a correlation between declining enrollment and declining student quality. I don’t even want to hazard a guess.

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Law school deans and others, including legislators, think that lowering the passing score would be a good idea.  

Some argue that the high bar passing score is an effort to limit the incoming supply of lawyers. True or not true? I don’t know.

I do know (and other California admitted lawyers will agree) that having the second highest bar passing score in the country has not necessarily resulted in fewer schlocky lawyers. So, would reducing the passing score increase that number? Would lowering the score funnel more lawyers into serving the underserved middle class? Would there ever be some kind of law school debt forgiveness to encourage lawyers to practice in underserved communities? Would the public receive the same or better quality of representation or (gasp) worse? Am I assuming facts not in evidence?

I have absolutely no idea what the California bar exam cut score should be. I leave that decision to the California Supreme Court and others. I do know that the highest priority of the State Bar of California is “public protection.” So, does that mission of public protection conflict with lowering the passing rate for the bar exam? You tell me.

Now, a word, actually a bunch of words, of unsolicited advice to those taking the bar this month: do NOT under any circumstances, including, but not limited to, pain of death, discuss your answers with any other test-takers. I don’t care how much smarter you think they are or, for that matter, how much smarter you think you are. DON’T DO IT.

STFU and wait for the results. You’d be surprised how many fellow examinees who thought they had it right got it wrong and didn’t pass. Good luck. Keep calm and carry on. 

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