Spending a quiet new years at home, thinking back on a very eventful 2009 now coming to a close. Quite a few major life changes are in store for 2010, looking forward to it all for sure.
More thoughts on my bar results, maybe it is the analyst in me, or the NT part of my temperament that has to dissect things to the core, but I can’t help myself. A few more observations. First of all, the perception of the test itself as a licensing test assigns a loaded view of competency of the lawyer who takes it when it could not be further from that. As one of the professors that taught my bar prep course put it, “use the materials and methods you learn in this course to pass the bar, but if you use the same materials and methods to practice, you will be DIS-barred.” **nervous laughter from the lecture hall of recently minted JDs** – at which point myself and I’m sure several others thought to themselves “then why the hell do we have to take this test?!!” However anyone who hasn’t gone to law school (and unfortunately, some of those who took the bar and were fortunate enough to pass the first time without any hitches) doesn’t know this part.
Secondly, the subjective nature of the grading is suspect, which even in the guidance issued by the bar cites a holistic method of grading which is in turn curved with other applicants who took the exam. For applying an arbitrary pass/fail mark instead of a sliding scale tied to a reportable score, a holistic and subjective method of grading is definitely suspect.
Thirdly is the insistence to test on the nuances between federal and state laws, and obsolete english common law legal doctrine, much of which may never come up again in the attorney’s lifetime of practice. I can’t even count how many times a professor in the bar exam prep course told us that we needed to know a certain law only for the bar exam and we could count on never having to ever think about it ever again.
All in all it really seems that the exam is more of a conformity test if anything, in saying this I mean a conformity of test taking methods which has little or no relevance to the actual practice of law since the majority of the substantive aspects can be researched at a later time when the issue comes up. I don’t buy this whole “It tests what you learned in law school” because none of my law school exams were anything like this, and further, I know way too many practicing attorneys now that have passed the bar but after talking to them now, I’m pretty sure they would flunk this test if they had to take it again.
Don’t get me wrong, it is an extremely difficult test, probably the hardest test I’ve ever taken in my entire experience in the ivory tower, but what aggravates me is that the reasons why it is hard, and how utterly pointless it is to make it this difficult. It’s not that the concepts in it of themselves are hard to understand intellectually, instead it really tests one’s ability to take tests. In fact now that I’ve been through one round of the exam, I’m convinced that someone who never went to law school could possibly take a class and pass a bar exam, maybe by a thin margin, but still possible for someone who is just good at taking tests. Instead what really makes it difficult is the format, the sheer volume of material that you are expected to regurgitate over 2 days, in addition to the pass/fall, all or nothing format with not references or tie-in to the actual practice of law. In other words, it’s a complete waste of time in terms of substance, on the other hand it serves as a money making tool for the state licensing boards.
The harder question for me at this point is when am I going to do this thing again, and in what jurisdiction? Given the depressing state of the legal job market, and with the responsibilities of providing for a baby on the way, I have just about no economic incentives to take it again. I’m gainfully employed right now with no genuine concerns as far as job security (knock on wood). Further, I’m actually making more than I would probably expect as an entry level attorney, at least from what I’ve seen is out there as far as job openings. Also, the work/life balance at my current job can’t be beat, especially with the prospects of having a baby on the way, I’d like to spend as much time with him as possible, not working 60-80hours a week at the office. Therefore it makes no sense to obligate myself to pay annual dues and pay tuition on continuing legal education credits for a license that I’m not using (well not officially)? And the way that reciprocity of licenses is set up currently, even if I take this test again and pass, I would have to take the Hawaii bar exam anyway, if Hana, the baby and I decide to move back home some day.
I can objectively say that my results firmly reaffirm my earlier impressions about 2 weeks into my bar prep class that this anything but a legal competency test, nor is it even remotely close to a test of one’s ability to practice in the real world.
I base this on the fact that everything we are tested on is an oversimplified version of the massive volume of theories we covered in the 1L and 2L courses, sheer human nature and circumstances would require much more depth of analysis. The format itself puts the test taker to put together a legal analysis and counsel on paper in a 25 min time period on 11 different legal topics purely from memory without any references or time to consult co-counsel or more experienced lawyers in the area. You would most likely be disbarred for ineffective assistance of counsel if you practiced in this way. Secondly, it seems that the test is more of an economic barrier to entry than anything else, after talking to some of my classmates that did pass the bar, they were pretty much honest about the fact that they didn’t feel any more competent or prepared to practice law after passing.
What’s I’ve been feeling a lot of lately is the same disconnected parity of achievement and accurate emotion that made law school difficult, when you do well, you feel like a bit of a badass at first, but then later on realize that it was just a check in another meaningless check box on an endless list of classes, requirements and required tasks, but on the flip side when you got a lower than expected grade, or in this case when you failed to “make the cut” you feel 100 times worse. Only thing is this time you have to do it again.
The other fatal flaw of the exam in my opinion is the overall pass/fail nature of the test. Failing the bar exam is a pretty crushing blow to one’s confidence and sense of ability, especially when just a few months ago you’ve gotten your diploma and been congratulated by all of your family and friends. The exam is really unnecessary given all the flaming hoops and hurdles that you go through to apply to law school, get accepted, make it past the first year, and ultimately graduate. To me it makes no sense why an applicant should be denied the opportunity to practice if they got a low score in a single topic area while getting passing scores in 11/12 of the other areas, especially if that low score was in an area that the applicant never expects to practice in. I hear that the CPA exam is more like this, once you reach a certain score on a section of the exam, you can go back and focus on the areas that you were deficient on, instead of having to take the whole thing over again. Oh, and if you decide to move jobs that take you to another part of the country, chances are you have to take another bar exam for that state due to the lack of reciprocity. So it never ends.
In my opinion short of setting up a nationally recognized test, or abolishing the test all together, what would make even more sense is to at least make it a reportable score like the LSAT or GRE from which you take to your employer who then decides if your score is high enough for them to hire you. I could see if you are looking to work in ABC law, then a demonstrated proficiency in ABC law would be of most interest to a prospective employer. It could also serve as a means of employers weeding out certain candidates, thus saving some of the hassles in reading applications, interviewing and hiring for both applicants and employers. Perhaps even more useful, it would give the recently rejected job applicant something to strive for, a higher score maybe to make their resume stand out more. But of course like Hana likes to point out when it comes to a lot of things in life, especially most of my adventures in the legal profession, that would make way too much common sense.
Got a more detailed breakdown from my bar results a while back, hadn’t gotten around to looking at them in more depth for the obvious reason that I don’t know when I’ll be taking this test again. There is also that lingering doubt from not passing it on the first try that maybe I just plain suck at law, and those 4 years of night school were an utter waste of time and money. However after doing some real analysis on the written samples I know now like everything else related to the law, first impressions are almost never the end of the story.
Some background on the test. It comes in three components, two standardized national components, and one state-specific to make it a 3 part test over a two day period. This set up varies by state, but with more and more states adopting the standardized MBE, MPT and Mutli state Essay versions, it makes me wonder if a national bar exam is a possibility.For me the test consisted of ten 25 minute essays on state specific law on the first day, and a standardized multi-state practice test (MPT) at the end of the first day, and 200 standardized multiple choice questions covering 6 core legal topics as part of the multi-state bar exam (MBE). For my test, the essays are slightly weighted higher, making it the most important portion of the test. No minimums scores in any section of the test are required to pass, but statistically speaking, if you bomb the essays, you most likely bomb the test.
Essays and the MPT are given a score of 0-6, with the MPT counting twice, making it a total of 12 possible essay scores. The MBE is scored by taking the raw score (number of correct out of 200) and standardizing it with scores from all bar takers nationally to get a scaled score. Each state then uses that scaled score to incorporate in their own calculations and cut-offs. From my bar prep class, the magic number to shoot for is a 4 average on all 10 essays and the MPT, as a 48 total score makes it almost impossible to fail even with a very low score on the MBE, less than 100 scaled. On the MBE, my course recommended that we shoot for a raw score of over 110, about 55% in order to get a scaled score of 130, depending on how the curve for that particular test ended up.
For the essay section I got one 6, five 4s, one 3, and three 2s. My MPT was a 4, therefore out of 12 possible, I got one 6, seven 4s, one 3, and three 2s for a written score of 43 with an average of 3.58, below the targeted average of 4, but within striking distance. My MBE scaled score of 114 was on the lower end, but due the nature of the weighting of this section, just by itself, it wasn’t the end of the world either. How my scores lined up by topic is also worth mentioning. My high score 6 was on property, the 2 scores were in Family Law, Civil Procedure, and Contracts. my borderline score of 3 was in Criminal Law, the other 7 were solid 4s, (Torts, Evidence, UCC 3/4/9, Business Organizations, Professional Responsibility, and the MPT). Constitutional Law was not tested. On the MBE, the breakdown was roughly 1/2 for Criminal Law, and 2/3 for Constitutional Law and Torts.1/3 for Contracts, Property and Evidence.
Going into the test based on practice exams and just overall knowledge from law school I knew that I my strongest topic is Constitutional Law, and my weakest is Contracts. So the 2 in contracts I expected. One of the other 2 score was in civil procedure, which outside of broad concepts, it is very state specific and could hinge on the extract provided on the day of the exam. The last 2 scores was Family Law, a topic that I didn’t take in law school, but had pretty extensive real-life experience with in the legal clinic and prior to law school. It kind of reaffirms my thinking that the test is disconnected from real life practice.
First glaring observation this breakdown is the luck of the draw was not on my side as far as topics tested. Had there been a Con Law question, I’m fairly confident that it would’ve averaged out a weaker Contracts question. And likewise, had Contracts not been on the exam at all, I would’ve ducked one lower score.
Another eye-opening observation is the disconnect in parity from my scores on the 6 MBE topics and and the same 6 essay topics. If the test was accurate to ability and knowledge, then you would expect some parity. Of the 5 topics (Con Law was not tested), 3 of them, Criminal Law, Contracts and Torts were consistent to my essay scores. 2 of them however, Property and Evidence were way off, in that my MBE was significantly lower than the essay score in the same topic. One might think that given the relative weight of the essays to the MBE, that a higher essay might be grounds for curving a lower MBE in the same topic up a bit given a discrepancy, but that doesn’t happen.