There really needs to be a paradigm shift in the way the National Conference of Bar Examiners and state bar examiners approach potential reform of the exam. It should not be so novel an idea to increase the range of skills tested on the bar exam (or at least enhance the testing of existing skills) instead of increasing the number of subjects tested on the bar exam. Adding Federal Civil Procedure as the seventh subject on the MBE, as the NCBE just did this year, is not helping. An expanded MBE exacerbates the already heavy imbalance in favor of testing for content knowledge over testing for professional skills
Granted, some skills do not lend themselves to being tested on a standardized exam, but some very well could. Has the NCBE done a careful study of the skills coverage of the Multistate Performance Test akin to its review of the subject coverage of the MBE that led to the adding of Civil Procedure? I have seen little evidence that it has.
Consider a few skill sets as examples. The vast majority of newly licensed lawyers responding to a recent job analysis survey indicated that their job requires them to investigate facts and gather facts. A similarly large majority indicated that their job requires them to develop strategy for client matters. The MPT is supposed to test these skill sets, but has it? My review of the last 10 years’ worth of MPT questions suggests that it has not but has rather focused consistently on basic legal and factual analysis to be written in the form of a memo, brief, or client letter. (Not that there’s anything wrong with that; it’s just that there is something wrong with having only that.) Moreover, among the documents that MPT examinees are told that they could be asked to produce are a discovery plan or a witness examination plan, but I have never seen either assigned.
Surely, if the MBE deserved review to determine if it needed another subject, the MPT deserves review to determine how it can expand to test more skills and more often.
In the same vein, there is the question of whether and how to test legal research, which has gotten some attention and has been studied by the NCBE. Even legal writing, though a fundamental part of completing an answer to an MPT or essay question, is not really tested on its own merits.
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