Law Schools

Final Jeopardy Answer: 'Everything.' Final Jeopardy Question: 'What’s Wrong With This Year’s Bar Exam?'

And don't even ask if the price is right.

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(Image via Getty)

Writing about bar exams, especially the in-person exams last week, is akin to the proverbial train wreck; you don’t want to look, but you can’t help yourself. It’s like the scab you keep picking at.

At least one examinee who was asymptomatic sat for the bar last week, and now has been diagnosed with COVID-19. She can’t be the only one in the entire country who sat for an in-person exam and has been so diagnosed. There will be others. Speedy test results? Contact tracing anyone?

Several states have already agreed to diploma privilege in these pandemic times. Isn’t it appropriate, at least for this year, to ditch all in-person bar exams? Should it be a situation of “your license or your life?”

That is a choice that no one should have to make, and I think most people would agree, especially considering the surges being reported all over the country. A last-minute resolution submitted to the ABA House of Delegates urges states to ditch all in-person bar exams during the pendency of the pandemic.

Then there’s the issue of technical glitches and goofs, snafus (you know what “snafu” stands for, right?) big enough to create chaos in already stressful situations made even worse by the times we’re living in. When I took the bar exam way back in dinosaur days, our first morning session was interrupted by power outages, big and small, during that entire session. It was a horrible experience. To this day, I remember thinking that I hadn’t spent three years in law school, bar review, and the attendant costs, only to be sidelined by power outages. So, I pulled out my manual typewriter (what’s that, ask Millennials) and started literally pounding the keys. I understand how beyond irritated this year’s crop of examinees must be. I’m with you.

Let’s count some of the snafus: password glitches dogged the Michigan exam. Indiana had postponed the exam until this week due to online testing issues but that’s not going to work and so the Indiana bar will be now open book and run over email.

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Isn’t “open book” how we practice? Makes you wonder why, as others have and will continue to wonder, we even need a bar exam. No lawyer, at least no lawyer who wants to avoid a malpractice claim, will fail to look stuff up, rather than just spouting chapter and verse. How many times have you been able to give a definitive answer to any question without looking up the applicable code section(s) and reading the controlling cases? I thought so. If that’s true, then why, especially this year, make bar examinees go through the hazing rite that is the bar exam?

I know. Public protection! That’s the mantra that every bar uses to justify whatever it wants to do.

The words “public protection” are enshrined in California’s State Bar Act.  However, a recent ABA disciplinary study said inferentially that the contention that the bar exam protects the public is hooey. Comparing a diploma privilege state (Wisconsin) with a bar exam state (Louisiana), Wisconsin does not have any more complaints percentage wise than Louisiana.

As Joe Patrice pointed out, the bar exam doesn’t test for a “lawyer’s greed or the lawyer’s long-term work ethic.” Even the Professional Responsibility Exam doesn’t suss out how those will play out over the long term. Only being in the trenches, working for clients, will show what a lawyer is made of over time. Just because you can glibly recite rules doesn’t mean that you know how to apply them on behalf of the client and advise the client appropriately.

But it hasn’t been just bar exams with glitches. Sympathies to the test takers who now must retake the LSAT because their scores were lost, disappeared, went pffffft. Now, let’s see, the examinees didn’t do anything wrong, and yet they must retake the test because of a screwup by LSAC? Are there sanctions for these kinds of screwups? Should there be? And if so, what should those sanctions be? Refunding the exam fees is not much of an apology.

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Here’s what I don’t get: the people responsible for testing, the administrators, the IT peeps, and everyone else responsible for snafuless experiences, all purportedly smart people, can’t get it right. Why is that?

Why is it so hard to get testing right? It’s not like this is the first rodeo for bar examiners. Yes, it is an unusual year with extenuating circumstances, courtesy of the pandemic, but surely someone somewhere could have anticipated that the exams could not go forward as usual. Maybe they bought into the claim that this country was managing the pandemic well, that it would just go away, and so there would be no need to plan.

Many companies have disaster plans, preparedness, and recovery. Would the pandemic and the havoc it has wrought, including the upset of the normal bar exam schedule and ability to have in-person exams, constitute a potential disaster that needed some strategic thinking and planning? Is this another example of why there should be a nationwide bar exam, rather than state fiefdoms?

This year is the perfect storm for bar examinees. It didn’t have to be this way. There will be other catastrophes, but hopefully not another pandemic for another 100 years. Perhaps by then the bar exam will be just a forgotten relic of bar admission.

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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