Bar Exams

What Kind Of Lawyering Skills Are Testable On The Bar Exam?

Can a bar examination even test practical lawyering skills that will make both the academy and practitioners happy?

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A number of state bar associations or their courts are either lowering their bar examination pass scores or are considering doing it. And more are likely to follow. When debating the appropriateness of lowering the pass score, one argument from law school deans is that the current bar exam format does not adequately test how lawyers actually work.

There is some truth to this. For example, I (and just about every non-Biglaw attorney) can think of only one real life situation where I have between 30 minutes to an hour to digest a fact pattern and answer questions off the top of my head without reaching for a book: giving random people free consultations. So if you pass the bar exam, congratulations. You are competent enough to give consultations on Avvo Legal Services for $39.

On a similar note, practitioners are demanding that law students are taught practice-focused skills. Most still won’t hire them once they graduate, but at least they’ll know how to draft a motion for summary judgment.

So can a bar examination test practical lawyering skills that will make both the academy and practitioners happy?

There are many articles on lawyering skills, but one of the most comprehensive is the MacCrate Report, published by the ABA Section of Legal Education and Admissions to the Bar in 1992. The report listed 10 fundamental skills that every lawyer should have. They are:

  • Problem solving;
  • Legal analysis and reasoning;
  • Legal research;
  • Factual investigation;
  • Communication;
  • Counseling;
  • Negotiation;
  • Litigation and alternative dispute resolution procedures;
  • Organization and management of legal work; and
  • Recognizing and resolving ethical dilemmas.

The report complained that because of the emphasis law schools place on helping their students pass the bar exam, they are motivated to structure their curriculum to prepare for the exam at the expense of teaching the above fundamental lawyering skills. Furthermore, the bar exam rewards rote memorization more than legal analysis.

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To address these problems, a few states have included performance tests as part of their bar examinations. As most of us may remember, the performance test required the test taker to read a fact pattern. They were also required to read statutes and case law on a very niche area of law which most probably had never heard of before, and apply them to the fact pattern with an analytical explanation. The purpose of the performance test was to evaluate a test taker’s legal analysis skill, problem solving skill, and other skills used by lawyers in everyday practice.

At the time the MacCrate Report was published, three states — Alaska, California, and Colorado — required the passage of a performance test. Today, almost every state includes a performance test as part of their bar examinations, with many using the National Conference of Bar Examiners’s Multistate Performance Examination.

But even with this, I understand that some fundamental lawyering skills could be difficult and impractical to test. For example, how can negotiation skills be tested? The test taker can write a negotiation plan that addresses all contingencies. But in the real world, negotiation is a continuous back-and-forth process between multiple parties with multiple levels of saltiness.

And of course, there are certain things that are impossible to test — such as whether an attorney will practice honorably.

One thing future bar exams can improve on is testing legal research skills, especially since most of it is done online these days. During the performance test, test takers should be allowed to access Lexis or Westlaw or any research database of their choice, but in a heavily restricted manner in order to prevent cheating and to ensure that the research does not go too far off topic.

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Some have suggested that the bar exam should be specialized, since most lawyers today are specializing. For example, an immigration lawyer can take a specialized bar exam and practice only immigration law. That sounds appealing because it might make test-taking easier. But I don’t think it will make sense in the long run because the law is constantly evolving. For example, the hot legal discussions these days involve blockchains and cryptocurrencies. Not too long ago, it was cybersecurity. I am worried that specializing will make it harder for lawyers to explore an emerging area of law. Also, I want to be able to move to a more profitable or enjoyable practice on a whim without having to take another exam.

So even though the bar exam forces people to memorize laws most will forget the following night after two shots of tequila, the performance exam tests some of the skills that practicing lawyers use. There is always room for improvement, but the bar exam can only test so much in two days. Twenty-five years have passed since the MacCrate report was first published. So the legal community should again get together to determine what are the fundamental lawyering skills of 2017 and figure out a way to test them.

Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached by email at [email protected] and via Twitter: @ShanonAchimalbe.

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