Should the bar exam be designed more like the real world?

“Get rid of the MBE.”

“The MBE is objectively graded. The essays are subjective. The essays should be eliminated.”

“They don’t use multiple choice in the real world.”

With so many shifts already happening in the world, will the bar exam have to be redesigned?

We’re already seeing some states reschedule their bar exams to September, at least for 2020. Is this the impetus needed to finally bring reform to the bar exam in “the new normal”?

It’s a complicated issue.

Here are my personal thoughts on this. No substantive bar strategies or techniques in this post.

First, I agree with most people that there is merit to the idea that an exam should mimic real-world practice.

There are many types of practice in law. Some require the type of things you do in an essay or a performance test. Some require a lot of on-your-feet thinking and memorization. Some require you to investigate, research, and put together the facts.

It would be great if one could take a specific exam geared toward each area of law. For me, I had to take a separate patent bar in order to qualify to do what I’m doing now.

(As you may have guessed, that test still didn’t really test what’s actually involved in practice, just a bunch of information you either come to understand through practice or learn to look up as needed.)

While multiple choice itself doesn’t reflect any practice of law (and probably essays don’t either), I still believe these mechanisms still test broad skills, like…

  • endurance
  • empathy
  • clear and reasoned thinking
  • accuracy with speed
  • concentration
  • task switching
  • juggling a large amount of information
  • handling high-stakes pressure
  • attention to detail

All skills involved in lawyering. So I want to believe that there is some correlation between performance on the MBE (and essays and PTs) and long-term success as a lawyer. The various portions of the bar exam are different ways to test these things.

At the end of the day, the bar exam is a fairly arbitrary measurement of qualification. That said, it probably tends to be an indicator of academic performance, which I want to contrast with practical skills in real practice. Unfortunately, the legal profession is obsessed with pedigree and academics. At the same time, based on what I can tell, there seems to be some correlation among academic aptitude, ability to practice law, and general drive.

If this somehow offends you, first of all, good. Those who are that easily taken off balance should be taken off balance. Second, the point is not that you can’t be a good lawyer if your academics were bad. I graduated bottom 11% of my class but became unfireable at work (a topic previously discussed in my emails).

You can see that there are lots of fundamental viewpoints and loose correlations and bases to balance. The truth is multi-faceted. But it is fair to everyone to have standard processes. People like fairness, right?

Ultimately, I agree that the test “should” be designed like the real world, and it could be redesigned. It’s true that they don’t use MBE in the real world, but some of the things involved in the MBE may be used in the real world. It’s not the best proxy, but it is one proxy.

I get it. I see your frustration. No matter where you’re taking the bar exam, it’s getting more convoluted and is testing more obscure concepts. The coronavirus uncertainty on top of thinking about all that would make anyone panic.

Is there a better way to test?

None of us is equipped to answer that. I defer to the continued assessment of the exam by the respective state bars and test designers. (Maybe a PT-only exam one day? Imagine that.)

What is “better”? I think tests are partly arbitrary by nature (otherwise we’d just go straight to apprenticeships) and competitive by nature. In the case of some populated states especially (California for example), it also seems to be in part a way to control the supply of lawyers. Yet another force that shapes the bar exam.

I accept the reality of the bar exam, much as we’ve accepted the reality of coronavirus. I am not one to try to get too bogged down by what “should” be the case (I tend to be an overthinker which I find to be a distraction from DOING). I’m much more concerned with getting you to start practicing law ASAP by beating whatever needs to be beat.

If appeals from the various factions result in the exam being changed in format (like when sometimes does), or delayed or canceled, etc., I am neither for nor against it. I can empathize with those whose plans have been thrown out the window, but my first thought isn’t “why/how could they do this”; it’s “what are we doing next.”

My empathy is not primarily aligned with wishing things were easier or different (because it won’t be easier or different the way you want), but wishing that those under my care develop the ability to address whatever is there.

It’s not to just get them over the hump—but also to equip them with ways to approach even greater difficulties they’ll face ahead.

Easy for me to say, I know.

If you’re still wondering why I appear dispassionate, you’ll have to understand that I no longer have a personal stake in passing the bar exam, but a stake in helping others pass it. My concern is to observe and respond. If they get rid of the MBE, I will talk about it less. If they introduce some new test, I will study it and figure out how to best get the information and strategies to the most people.

This is not to be confused with weak reservation and letting the powers that be have their way with us, but rather shifting the sails to go with the winds. We can’t stop an earthquake from happening, or appeal to the earth to stop having earthquakes, but we can prepare, make a plan, respond appropriately, and seek the best outcome.

So yes, the bar exam should be and could be designed closer to the real world, but I don’t concern myself with the complexities involved in deciding on a potentially better solution for all.

What about you?

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