What and How Might a Better Bar Test?: A Brief Look at IAALS’ “Building a Better Bar” Project

With the February bar exam falling last week, it seemed appropriate to spend part of those days reading through the Building a Better Bar project report. In a first-of-its-kind study, the Institute for the Advancement of the American Legal System, in partnership with The Ohio State University Moritz College of Law, conducted 50 focus groups in 12 U.S. states to gather insights into what sort of “minimum competence” lawyers need to practice.

Looking first at prior research surrounding the knowledge, skills and judgment needed to represent clients, two important conclusions were reached. First, in study after study, cognitive skills like communication, research, legal analysis, and critical thinking were ranked as more important than knowledge of doctrinal law. And second, since most prior research had relied upon surveys, it unfortunately provided little detail about precisely how lawyers acquire the competencies they need. (Hint: It’s not through preparing for the exam as it stands!)

Recognizing that the legal profession lacked “a clear, explicit understanding of the minimum competence needed to practice law and how it should be tested,” the project identifies a critical gap and seeks to fill it with “a fair, evidence-based definition of minimum competence” along with recommendations for how the legal licensing process need change.

The report suggests that minimum competence consists of twelve interlocking components, or “building blocks”:

  1. The ability to act professionally and in accordance with the rules of professional conduct
  2. An understanding of legal processes and sources of law
  3. An understanding of threshold concepts in many subjects
  4. The ability to interpret legal materials
  5. The ability to interact effectively with clients
  6. The ability to identify legal issues
  7. The ability to conduct research
  8. The ability to communicate as a lawyer
  9. The ability to see the “big picture” of client matters
  10. The ability to manage a law-related workload responsibly
  11. The ability to cope with the stresses of legal practice
  12. The ability to pursue self-directed learning

One need not read the report in its entirety to acknowledge the value of these skills in practice. In the same way that the AALL Principles & Standards for Legal Research Competency can be used to measure students’ abilities to effectively research the law, so too could these building blocks operate to better prepare new lawyers for practice. And, unlike as is the case now, the bundle of skills tested would prove valuable in each and every practice area.

The inclusion of multiple building blocks testing skills that have yet to be incorporated in the exam seems to me a critical improvement. Aren’t the abilities to interact effectively with clients, conduct research, pursue self-directed learning, etc. necessary to succeed as a new lawyer? Thus, shouldn’t we be specifically testing those abilities (in the best ways possible)?

The report further proposes ten recommendations that stakeholders should consider in their efforts to move toward a better exam:

  1. Written exams are not well suited to assessing all aspects of minimum competence. Where written exams are used, they should be complemented by other forms of assessment.
  2. Multiple choice exams should be used sparingly, if at all.
  3. Eliminate essay questions from written exams and substitute more performance tests.
  4. If jurisdictions retain essay and/or multiple choice questions, those questions should be open book.
  5. Where written exams are used, provide more time for all components.
  6. Candidates for licensure should be required to complete coursework that develops their ability to interact effectively with clients.
  7. Candidates for licensure should be required to complete coursework that develops their ability to negotiate.
  8. Candidates for licensure should be required to complete coursework that focuses on the lawyer’s responsibility to promote and protect the quality of justice.
  9. Candidates for licensure should be required to complete closely supervised clinical and/or externship work.
  10. A standing working group made up of legal educators, judges, practitioners, law students, and clients should be formed to review the twelve building blocks and design an evidence-based licensing system that is valid, reliable, and fair to all candidates.

Based on my own experiences, I absolutely agree that skills like research, writing and analysis are most important as a new lawyer, and I certainly don’t feel the bar exam adequately sought or operated to even remotely capture the extent to which I had developed those skills. In fact, when I took the bar, the multistate performance test, which has always seemed to me the most practical piece of the exam—that piece which “most closely parallels the work [new lawyers] do during the first year of practice”—was worth only ten percent of the exam. TEN! And even with the UBE, while twenty percent is admittedly an improvement, it remains far from reasonable, nor does it touch upon a number of the aforementioned skillsets new lawyers so desperately need.

In further reflecting on my experiences, I couldn’t help but think back to those numerous laws (temporarily) committed to memory, and I can’t say I believe this was a relevant exercise for practice either. While I certainly agree that new lawyers need develop a familiarity with foundational legal principles, like focus group participants, I think extensive, rote memorization can and does “distract new lawyers from developing the competencies they [truly] need.”

You might be wondering: How is the ability to conduct research broken down in the report? It is divided into four tasks, as new lawyers stated they needed to be able to (i) answer specific legal questions posed by clients or supervisors, (ii) check or update their knowledge of legal doctrine, (iii) acquire facts and non-legal information for client matters, and (iv) find information about local rules or practices. The report goes on to suggest that, unlike existing performance tests, additional performance tests could be adapted to measure research abilities. “Rather than providing closed universe files to candidates for every performance test question,” for instance, “jurisdictions could require candidates to conduct their own research on one or more of these exercises.”

Regarding the report’s final recommendations, it makes sense that several of the proposed building blocks cannot be adequately tested on a written exam, and that we should thus consider additional exam components such as coursework and clinical experience. Of course, as teaching librarians, we need also be asking ourselves how we can seek to incorporate multiple building blocks—and not solely the ability to research—in our own classrooms.

As a final note, I point to the report’s inclusion of multiple licensing system examples, including test-, experience-, and diploma-centered systems. I encourage you to explore the report and resources below and to similarly ask whether there is indeed a better way.

References

Deborah Jones Merritt & Logan Cornett, Building a Better Bar: The Twelve Building Blocks of Minimum Competence, Institute for the Advancement of the American Legal System, https://iaals.du.edu/publications/building-better-bar.

Logan Cornett et al., Building a Better Bar: Capturing Minimum Competence, Institute for the Advancement of the American Legal System, https://iaals.du.edu/projects/building-a-better-bar.

Logan Cornett, IAALS Study Reveals the Building Blocks of Minimum Competence, Recommends Changes to Bar Exam and Lawyer Licensing, IAALS Blog (Oct. 29, 2020),  https://iaals.du.edu/blog/iaals-study-reveals-building-blocks-minimum-competence-recommends-changes-bar-exam-and-lawyer.

Logan Cornett & Zachariah DeMeola, Expert Opinion: No Small Measures: We Must Radically Reconsider Lawyer Licensure and the Bar Exam, IAALS Blog (Feb. 24, 2021),  https://iaals.du.edu/blog/expert-opinion-no-small-measures-we-must-radically-reconsider-lawyer-licensure-and-bar-exam.

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