Law Schools

Things That Should Be Changed To Make The Bar Exam More Realistic

Forcing examinees to commit to memory the elements of every test and crime does not seem to mimic the reality of practice.

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I have had a non-conventional career path. The law is not my first profession, having attended law school in my 40s, after decades of professional accountancy. Post J.D., I founded a software company rather than practice law. Now in my 50s, contemplating eventual semi-retirement last summer, I applied to take the Washington State Bar. It seemed like a solid plan on September 1, 2017, but, as I walked into day one this past February in Tacoma, I was on my tenth round of second thoughts. However, now that it’s done, and I have stopped dreaming about easements and common law murder, I have a few things to share under the guise of being in charge of the UBE for just one day. If I were the proverbial queen for a day…

MPT: Thumbs Up

Let’s start on a positive note. I think the Multistate Practice Test (MPT) is a great way to test lawyering skills. My state had two MPTs in the first afternoon. Each MPT is a closed universe where you are provided a task in a memo from a partner and then given all the information needed, whether that is statutes, relevant cases, client interviews, and so on. The 90 minutes allocated is split about equally between reading and writing the requested document. Other than the time pressure, this is like practicing law. I cannot say that I enjoyed the bar version, but the MPTs done in preparation were actually an interesting part of bar studies. I would not change a thing here.

MEE: Meh

Next, the six essays in the Multistate Essay Exam (MEE) reminded me of law school because you are pushing to get as many points as possible after spotting the issues by using IRAC or CIRAC. The challenge here is to memorize the rules and tests enough to be able to write them out and then apply to the facts in the question, which in some ways is a more difficult task than memorizing the law for the MBE multi-choice questions. The MBE covers eight major subjects, while the MEE had those same eight topics as fair game plus seven others: Family Law, Secured Transactions, Wills & Trusts, Agency, Partnership, Corporations, and Choice of Law.

I did not have time to add up how many tests and elements had to be memorized for these 15 subjects, but it must top a thousand. Will the ability for me to instantly recall the alimony types and tests make me a better lawyer? As I am unlikely to practice family law, the answer is no. And even if I were going to practice family law, I would be paid to spot the issues and then research and apply the law to my client’s needs. So, although the essay fact patterns do provide a good issue-spotting test, having to memorize all that law does not make sense for real-life practice.

How about instead we are allowed to bring in an outline limited to certain pages or words. That outline is left behind in the exam room.  The exam then becomes the ability to apply the law to the facts, without having to memorize everything. The exam can be set to reward people for analysis only, not dumping out rules and tests. I am not advocating that you do not have to learn the law, but rather, that you do not have to commit it all to memory to demonstrate an understanding and the ability to apply the law. 

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MBE: Two Thumbs Down

Okay, now I am down to what I consider a complete mismatch of testing with practice. Why does the ability to spot tricks in 200 multiple choice questions, under time pressure, make me a good lawyer? I faced multiple choice on my U.S. CPA reciprocity exam in 2007 and thought the same thing. The MBE is a whole new level of crazy. The idea is to plant red herrings and force us to read really fast but accurately. I am still unclear how that prepares me to practice law or why people who are good at multiple choice make better attorneys.

Unlike the MEE or MPT where you can explain your reasoning, here you can usually get the four answer options down to two and pick the “best” answer or “narrowly tailored” response — I call that the Con Law approach. In other words, try to find the answer that is not too overbroad or general. Then there is the process of elimination approach for those questions that you cannot get down to two — I call that the Evidence approach, as you need to figure out which choices should be excluded. And then there is the Hail Mary, when you just don’t know and must pick and move on but not let that bother you.

One of my struggles was to fight the urge to go back and change answers. With about 1.8 minutes per question, the idea was to pick the best one and move on. Instead of these 200 mini-fact patterns, I would like to see a smaller number of questions. You still would have four choices, but you pick one answer and have a certain number of words to defend why you picked that particular response.  After all, lawyers should be able to explain why a certain legal solution will work or how doing something might be problematic for clients.

Ultimately, a great attorney will have the ability to understand their clients’ issues, consult the relevant substantive law, and understand the procedures if litigation is required. And a stellar lawyer can communicate with clients and opposing parties to solve problems. Obviously, there is a level of knowledge of the law required, but forcing examinees to commit to memory the thousand-plus elements of every test, crime, and so on does not seem to mimic (pun intended) the reality of practice.

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Full disclosure: I have no idea whether or not I passed, and those results will not change the above thoughts. I wrote a similar multi-day CPA exam in Canada in the 1980s (by hand) and felt the same frustration about writing a memo on tax advice off the top of my head, rather than consulting the tax code. A J.D. should mean that you have learned the black letter law and memorized enough. As attorneys, you will not dispense advice without research and consultation. Just food for thought and my SoLI talk on April 30th. #onwards

Mary E. Juetten

Mary E. Juetten lives on the West Coast, holds a J.D., and is both an American and Canadian professional accountant. Mary is passionate about metrics that matter and access to justice. She founded Traklight and Evolve Law and consults as an Access Advocate for LegalShield. You can reach her by email at info@evolvelawnow.com or on Twitter: @maryjuetten.

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