Law Schools

The Bar Exam, The Cut Score, And Feminine Hygiene

These are not MBE choices.

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As readers of ATL know by now, or should know if they’re reading ATL, the California Supreme Court has decreed some changes to the California Bar Exam for 2020. Originally set for the end of this month, the Court first deferred the exam to September and now to October. Instead of examinees hacking and coughing around each other, especially now considering the pandemic, the two-day exam will be online.

That’s not the only order the court made. The court also ordered the state bar to expedite creation of a provisional licensure program under supervision to 2020 law school graduates — effective until they can take and pass a California bar exam and expiring no later than June 1, 2022.

But wait, there’s more. The court permanently lowered the “cut score” from 1440 to 1390. There’s so much to discuss that my head is about to explode.

Let’s take the change in the exam date first. It was a foregone conclusion that the bar exam date would be changed; the issue was when? Would it be September as originally thought? Now it’s October, and that date seems fixed. It’ll be online, a first for California and other states who have thoughtfully moved the bar exam date and methodology to accommodate the pandemic.

Moving on to the provisional licensure program under supervision, many questions surround the creation and implementation of such a program. Hopefully, the state bar saw this coming, and creation and implementation of such a program will not gobble up most of the available time, which ends in less than two years.

How will the bar recruit volunteers? Thousands are registered for the bar exam. How many lawyers will agree to supervise? Will there need to be an incentive for lawyers to be willing to undertake that supervision? Will malpractice carriers be willing to add provisional licensees as additional insureds? Or will carriers tell lawyers, “you are on your own, counsel.” I can’t imagine, given our lack of appetite for risk, that many lawyers will undertake supervision without some assurance that by going out on a limb, it will not be sawed off either by the malpractice carrier or zealous bar disciplinary counsel.

And last but not certainly least, the reduction of the infamous “cut score,” from 1440 to 1390, a difference of 50 points. Law school professors, deans, and students should be pleased. But will cutting the cut score really make a difference in the passing rate?

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Examinees have always done well on the MBE. It’s the essay portion that snares them. Whether it will continue to so so is anyone’s guess. One hopes that the reduction in the passing score requirement will lead to the admission of more, but I am not so sure.

Over the years, I have critiqued essays for students at various law schools, and the results have been almost uniformly dreadful. As more and more of legal practice is submitted “on the papers,” with oral argument rarely the difference between winning and losing, the ability to write cogently and fluently takes on even greater importance.

Some law students today simply don’t know how to write coherent sentences. Their sentences are run-on, meandering, and don’t get to the point, even if the writer finds it.

Let me be clear. I do not fault law students for this situation. I fault the law schools and the instructors, the latter who are more interested in publishing, in their own scholarship, than in helping students succeed. It’s akin to “we take your money, and you take your chances,” which is not the way it should be. Critiquing exams can be deadly dull and a huge time suck, but if the goal is to get students to pass the essay portion, then law schools and faculty need to step up their game and help students get what they need. If the written bar exam goes away some day, so be it. However, until that day, we’re stuck with what is.

It’s one thing to review past exams and issue spot until you can’t stand to look at one more. It’s another thing to sit at your laptop, see issues and then write, write, write. That is what should make the difference between pass and fail. I have no idea how the bar grades essays, but I would imagine that if most of what they read is dreck, then it won’t matter what the cut score is.

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Here’s an example of how discrimination rules the bar exam world, as if it didn’t already rule the practice world, but that’s a topic for another time. No joke. Outrageous, isn’t it?

At least for those states that are providing an online bar exam this summer/fall, women shouldn’t have to deal with the humiliation. What about those who must sit for a Covid-ridden in-person exam? Will there be body searches to make sure there’s nothing that should not be there? Could the Rule Against Perpetuities be written on a tampon? You tell me. Please tell me how taking feminine hygiene products into the testing room encourages cheating.

This is just one more example of how the bias against women lawyers will never change in my lifetime, which is nearer to the end than to the beginning. More than 40 years ago, I had hope. Now, not so much.

Jill Switzer has been an active member of the State Bar of California for over 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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