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Bar Tests Need ‘Lawyering Skills’ Focus, Examiner Group Says

Jan. 4, 2021, 10:43 PM

States should overhaul bar exams to focus on problem solving rather than knowledge of niche practices, a bar examiner group said in a report.

“Greater emphasis should be placed on assessment of lawyering skills,” the National Conference of Bar Examiners said. Such an approach would “better reflect real-world practice and the types of activities newly-licensed lawyers perform.”

Skills assessed would include things such as legal research and writing, according to the report. The goal of the exams—to ensure minimum legal knowledge and competency—wouldn’t change, the group said.

The report arrives as a growing number of nonprofit groups, professors, and recent law school grads have been agitating to find new ways to license lawyers, especially during a pandemic, including the suggestion that the test be scrapped entirely.

The bar exam group, which serves admission authorities, courts, and law educators and students, spent three years on the report and consulted with 400 people.

The changed exams would still test “core, foundational concepts that lawyers need to know,” said Cindy Martin, chief judge of the Missouri Court of Appeals, Western District, and chair of the bar examiner group’s testing task force. That includes knowledge of rudimentary legal concepts like civil procedure and criminal law, but not of practices like family law or estates and trusts, she said.

“There would be a lot more connection point associated with the demonstration of skill, i.e., the application of law to facts, in this exam,” Martin said.

The report also recommends that states fold the multistate bar, essay and performance examinations into a single test. State bar authorities would make the final decision on any changes.

“We’re really hopeful they’ll be as excited and as enthusiastic as we are,” said Kellie Early, the bar examiner group’s chief strategy officer.

Remote vs. In-Person

After states shifted to on-line bar exams because of the coronarvirus pandemic, the report recommends that they return to administering exams in-person going forward.

“Remote proctoring was an emergency response to an unbelievable, unprecedented situation,” Martin said.

The October online exams in many large states were marred by test-taker allegations of technical problems. In California, a third of exam takers were initially flagged by remote proctoring software for possible cheating, before almost 90% of that group was exonerated.

Going forward, test takers should use their own laptops to receive and answer questions instead of using paper, the bar exam group recommended. But human proctors would oversee the tests, not AI-enabled remote proctoring.

Diploma privilege, in which four states and Washington, D.C. temporarily allowed law school grads to become licensed without taking an exam, should remain a jurisdictional decision, Martin said.

“The great majority of jurisdictions” believe in the value and importance of incorporating a licensure exam as a part of their credentialing model, she said.

The NCBE isn’t the only group recently to conduct an in-depth study about how the bar should move forward.

The Institute for the Advancement of the American Legal System, known as IAALS, released a 110-page report in October that urged states to consider client service as they work on reforming their tests, among other recommendations.

Deborah Jones Merritt, a professor with The Ohio State University Moritz College of Law who partnered with IAALS on the study, said at the time that a necessary building block for bar exam reform included making sure prospective lawyers could effectively interact with clients.

“I think the exam fails clients more than it fails the legal industry,” she said.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com;
John Hughes in Washington at jhughes@bloombergindustry.com

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