Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative

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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2 Responses

  1. Ben,

    Thank you for raising these important questions. I agree that to the extent the bar exam tests ability to issue spot, engage in legal analysis, and write a coherent essay, it could test those skills using a much smaller range of doctrine. Why not substitute questions that ask about interviewing, negotiation, counseling, fact gathering, etc for some doctrinal area questions?

    Over a decade ago, I suggested that the NCBE look at incorporating computer testing using video clips. The clips could show a vignette and either essay or multiple choice questions based upon the vignette could assess students’ understanding of fact investigation, interviewing, counseling, negotiation, etc. This is just one small way the exam could improve.

    The problem is that the NCBE has a monopoly on testing and it has no incentive to invest in changes barring public pressure, and particularly pressure from state supreme courts. Thus far, the pressure has not existed. I am not sure what will create that pressure for change.

    • Thank you for the commentary and perspective. I suppose the two biggest factors at the level of the individual jurisdictions are (1) that states are adopting the UBE, thereby ceding even more power to the NCBE, and (2) that remaining states seeking to enhance the competencies of their new practitioners are not going the bar exam route but rather enacting increased legal education requirements-e.g., the pending proposal in California to require 15 credits of skills courses in law school to be admitted to the bar. The trend I describe in (2) is a good thing, I think. The trend in (1) is largely a bad one, as I have written earlier this year in my article on JD Journal. – Ben

      From: Best Practices for Legal Education <comment-reply@wordpress.com> Reply-To: <comment+edvotd969j1_fevyljvkrw5_w1@comment.wordpress.com> Date: Sat, 10 Oct 2015 10:56:27 +0000 To: Ben Bratman <beb9@pitt.edu> Subject: [Best Practices for Legal Education] Comment: “Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative”

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