Law Schools

How In The World Can We Solve The Problems With The California Bar Exam?

How can we stop so many people from failing the bar exam?

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I wasn’t going to say another peep about the disastrous bar passage rate here in California, figuring that I had ranted enough on this topic, even after the Los Angeles Times published an op-ed from a number of law school deans, bemoaning the low bar passage rates and  high cut score here. However, after reading Staci Zaretsky’s post about that letter, I just couldn’t help myself.

These deans concede that between 2010 and 2017, law schools admitted students with lesser LSAT scores and lower GPAs, and they also concede that “there is undoubtedly some correlation between those metrics and performance on the bar exam and in law school.” Duh.              Letters to the editor of the Los Angeles Times responding to the law deans’ lament were unsympathetic. I especially liked the last letter, suggesting iPhone lawyers might ask Siri for the proper objection to an improper question in trial. (“May I have a moment please, Your Honor? Siri, is that hearsay?”)

The deans also say that the bar exam is anachronistic, that it is designed for the pen and paper generation (that would be me, even though I typed the exam) rather than for the smartphone generation. Then doesn’t the bar exam need to change to accommodate the smartphone generation? How would legal educators change the exam? What would they suggest as changes? How would they implement those changes? Let’s hear them. Even the LSAT is moving into this century with the use of digital technology for that exam.

Don’t just persist in arguing that the cut score should be lower when the California Supreme Court refused to do so last year, saying in essence, “not so fast.” The Chief Justice reiterated that position yesterday.

My point is that I am tired of the law deans whining. This seems to me to be a classic case of “blaming the victim,” i.e., the exam, when the blame should lie with the education that law students receive. If incoming students can’t write a cogent sentence, let alone a paragraph, without grammatical mistakes and typos, without understanding and analyzing the issue correctly, then what chance do they have of persuading a court to rule in their client’s favor? Should they even be in law school?

If anyone has the right to whine, it’s those students who failed the bar exam. Three or perhaps four years of law school, massive quantities of debt, and facing the unhappy prospect of having to take the bar exam again. Were they adequately prepared? Did they do the work and the studying necessary?

Unfortunately, for these deans and their law schools, unless and until the bench is filled with millennial smartphone users, then law students must learn to write and the only way to write well is to practice. (I’d throw in the old “How do you get to Carnegie Hall?” joke here.) However, if briefs are supposed to be brief, then Twitter-length briefs might be an improvement instead of slogging through all the repetitious and nonmeritorious dreck. (Do attorneys bill by the word? Not yet.)

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Law school deans holler about the bar cut score and the lack of access to justice, but would lowering the cut score improve access to justice, and would it improve the quality of the access to justice? How would you demonstrate that there’s a correlation between a lower cut score and improvement in the quality of that access?

Here in California, and I would imagine in other states as well, the stated purpose of the State Bar is public protection, regulating attorneys, and promoting access to justice. So, if the cut score is lowered and malpractice claims rise and the number of attorneys who are disciplined rise, how does that mesh with the purpose of public protection?

Many, many years ago, upon admission to any of the University of California campuses, students had to take “Subject A” aka “Bonehead English.” The only way to avoid the class was to have gotten sufficiently high grades in high school English or on an AP English exam.

Since writing does seem to be problematic for some incoming law students, perhaps there should be a similar requirement for entering law students to show the admitting school that the students know how to write. Perhaps the law schools need to take a bigger role in getting incoming students ready for law school and not just assume that they’re ready because they say they’re ready and the college transcripts say they’re ready and the LSAT says they’re purportedly ready. How about a writing boot camp?

The goal is to get students ready to take their places in the profession. That means learning how to think critically both on their feet and on paper. Trial court judges usually base their decisions on the moving and responding papers and give little, if any, time for oral argument. If counsel raises an issue that’s not in the papers, the question usually is “why not?” If it’s in the papers, but it makes little or no sense as written, the court will comment on that as well.

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I don’t know what the answers are for raising the bar passage rate. I think it’s been years since law school deans sat for the bar exam, so why not ask those bar takers who have failed? What do they need to pass? I met a young woman law school graduate who took the July bar and failed. She seemed smart and capable. She passed the MBE, but failed the written. (Is anyone listening?)

Why not use their experiences in failure to help make a better bar exam, one that protects the public, helps improve access to justice, and gets her generation going in practice as we dinosaurs start taking our dirt naps?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for more than 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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