Law Schools

Does The Bar Exam Need More Than A Facelift?

And no, I have not had one.

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When I was a reporter for an all-news AM radio station in the early 1970s, and there was a story that needed some “man on the street” comments (remember that this was the early 1970s and women were still pretty much seen but not heard), a street reporter would head out to a location where there might be a variety of different people to speak with. This was in the pre-Starbucks days. Reporters would ask citizens for their thoughts on a particular topic, usually something in the headlines to get a sense of how they felt. The results could be surprising.

Talk about surprising. The National Committee of Bar Examiners conducted a poll to see how people felt about an in-person bar exam. Why the NCBX thought that nonlawyers would have opinions on this and why those opinions would matter is a mystery.

Any sense at all that the NCBX is trying to justify its own existence?

Just like any other lawyer, I like being right, but sometimes, I wish not. And that’s the case with the online bar exam given earlier this week. I had hoped that everything would have run smoothly but no such luck. I hate being right in this case.

There were snafus, there were fubars, there were choices made by examinees who ended up dropping out of the exam. After all the angst of the past months, to decide to drop out of the exam is disheartening and dispiriting, not to mention the economic consequences. Two words: it sucks.

For the examinees who had pinned their hopes on successful, albeit delayed, bar passage, dropping out must have been an excruciating decision. Apparently, examinees withdrew for the same reasons that Joe Patrice and I had predicted all along: trouble opening the platform, overwhelmed and unavailable tech support, a complete failure to formulate any contingency plan, and racially discriminatory monitoring. And, shockingly, but it probably shouldn’t be, some examinees withdrew at the suggestion of the bar examiners.

Here’s what really irritates me: the cavalier attitude that seems to permeate the realm of bar examiners. The total lack of empathy, lack of any Plan B, lack of anything that seems to understand the reality of an online bar exam in a pandemic world. I seriously doubt that an in-person bar exam will happen next February or even next summer given the problems with reducing the spread and the uncertainty of a vaccine timetable. What are the bar examiners going to do differently next time?

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As Joe pointed out, the blatant racial discrimination based on failing to distinguish color is shocking. There can be and should be no excuse for not being able to discern differences of color. For a profession so lacking in attorneys of color to not be jumping up and down and yelling that this is unacceptable is unacceptable. How can we even say the profession is working on diversity and inclusion when examinees of color can’t even be seen on camera? Is this “do what we say, not what we do?” What’s wrong with us?

How about these for essay questions? What if an online bar exam were not able to discern examinees of color and as a result, they couldn’t take the exam? What if an online bar exam had tech support issues and examinees couldn’t reach tech support for an extended period, if at all? What if an in-person exam exposed examinees to COVID-19 or some other highly infectious contagious virus that we don’t even know about yet? Discuss all potential theories of liability.

Why should examinees have to “try again,” when this disaster has not been of their making? Anything unfair about making them go through the drill yet again? What guarantees (ha!) can ExamSoft and the bar examiners make that these snafus won’t repeat themselves? They may be able to fix these, but what about other snafus that may crop up?

Does anyone care about the plight of the examinees, especially those who withdrew, through no fault of their own?

Anyone draw any connection between fraternity hazing and the bar exam?  The bar exam is a form of hazing. The bar exam can certainly be hazardous to health. Failure to pass has resulted in death by suicide. If you need help going through this tough time, please seek it. Don’t wait. You are not alone.

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As Joe’s post points out — and this is not the first time he has made this argument — there needs to be a serious re-evaluation of the purpose of the bar exam and whether it truly tests the skills that lawyers need to have. I don’t think any lawyer would give an off-the-cuff opinion without research, and yet, in a very real sense that’s what the exam asks. I also don’t think that the bar exam tests for the necessary “soft skills” that lawyers need to have if they are going to be successful practitioners.

What kind of lawyers do we want among us? Do we want someone who can rattle off the Rule Against Perpetuities or someone who can counsel clients in the most effective, efficient way? Ironically, the bar exam can be a bar to those who could contribute to the profession.

Living as I do in in LA-LA land, aka plastic surgery central, perhaps the bar examiners need to take a good long look at themselves and figure out whether an exam facelift is sufficient, or whether a total makeover is needed. I think it’s the latter.

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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