Studying Better Ways to Test Bar Applicants for Minimum Competence: Another Reason to Care about the California Bar Exam (Besides the Cut Score Debate)

In addition to her post on Law School Café about alleged correlations between bar exam scores and lawyer discipline (discussed on this blog here), Professor Deborah Merritt recently offered another bar exam-related post. This one provides intriguing historical perspective on the current need to expand the range of skill sets tested on the bar exam. Following up on points made by Professor Derek Muller, Professor Merritt discusses a 1980 study by the California Committee of Bar Examiners, cosponsored by the National Conference of Bar Examiners (NCBE), on adding a clinical component to the bar exam. Several hundred applicants who had taken the July 1980 California Bar Exam volunteered to complete an additional clinical evaluation requiring them, among other things, to interview a client and examine witnesses. Professional actors played the role of clients, akin to the standard patient role that actors perform for clinical evaluations in medicine. The applicants were scored based on an elaborate protocol.

Delving into the statistical results of the study, including comparisons between outcomes on the conventional bar exam and outcomes on the clinical evaluation, Professor Merritt illuminates how crucial it is nearly 40 years later for bar examiners to study and implement alternative assessments of skills not currently evaluated by the bar exam. She points out that, while the study’s results were by no means definitive, they at least suggest “the disturbing conclusion that a significant percentage of conventional bar passers (about two of every five) lack basic practice skills that are essential in representing clients.”

I find this discussion particularly apt in 2017, the 20th anniversary of the first administration of the Multistate Performance Test (MPT), the written skills test now a part of the bar exam in 40 states and D.C.  What started the path toward written performance testing and the MPT? A study conducted by the California Committee of Bar Examiners (cosponsored by the NCBE), possibly the same one referenced by Professor Merritt.  On the occasion of the MPT’s 10-year anniversary in 2007, the Bar Examiner, a magazine published by the NCBE, briefly described the California-based origins of the performance test and indicated that the MPT was ultimately based largely on “the California model.” (The piece, in the November 2007 edition of the Bar Examiner, is apparently not retrievable online.)

Written performance testing was the last meaningful innovation in bar exam testing. In thinking about who might lead an effort toward the next one that introduces greater clinical evaluation, including possibly of oral skills, I think not of a top-down effort from the resolutely conservative NCBE. It is focused on getting as many jurisdictions as possible to adopt its Uniform Bar Exam (26 and counting as of today). Rather, I think of a bottom-up effort by individual states—perhaps with California in the lead—serving as laboratories for testing methods that could ultimately spread to other jurisdictions, thereby persuading or forcing the NCBE to join.

The history of written performance testing is illustrative of my point. Long before the NCBE went forward with the MPT in 1997, not just California but also Alaska and Colorado devised performance tests of their own and administered them on the bar exam. Indeed, those three states were administering performance tests in the early 1980s, playing an important initial role in advancing the cause of a needed bar exam reform. Here, for example, is a follow-up study of the 1983 California Bar Exam, discussing its two performance tests.

The biggest barrier to innovation at the state level is the NCBE’s influence, which increases with each state that adopts the UBE and thereby constrains itself to offer the conventional bar exam that the NCBE requires it to. Indeed, both Alaska and Colorado, two of the original performance test states from the 1980s, have adopted the UBE, meaning neither of those states will be doing any more bar exam innovation. That leaves California (and any of the other 23 states that have yet to join the UBE, none of which matches the influential profile of California).

Why the California study or studies did not lead to some form of clinical evaluation beyond written performance tests is unclear, though two obstacles that come to mind are expense and testing reliability. Indeed, the 1980 study that Professor Merritt references summarized one of its findings as follows: “[T]he relatively low reliability, administrative difficulties, and high costs associated with most (but not necessarily all) standardized oral tasks probably precludes even considering them as possible components of a general bar examination. Written tests of clinical skills, on the other hand, are relatively easy to construct, administer, and score. Further, unlike oral tasks, the score on written tasks are moderately correlated with one another.”

It seems worthwhile to revisit those conclusions, given the passage of time and possible advances in testing methods, and given that the medical profession requires clinical evaluation of its applicants.  Today, 24 years after the MacCrate Report, 20 years after the advent of the MPT, and 10 years after the Carnegie Foundation Report, the legal profession needs a better bar exam.  I join Professor Merritt’s call for a national task force on the bar exam, sponsored by AALS, the Conference of Chief Justices, the ABA Section of Legal Education and Admissions to the Bar, and maybe even the NCBE.  As Professor Merritt writes, such a task force could “study current approaches to the bar exam, develop a more realistic definition of minimum competence, and explore best practices for measuring that competence.”

But I also come back to the states, and to California specifically. There is a vigorous debate going on about whether California should lower its bar exam cut score. That’s an important discussion to have. But I might suggest another discussion to have about the California Bar Exam: Shouldn’t California resist the UBE and instead conduct a new study of alternative methods for assessing today’s relevant lawyering skills that are not encompassed by the UBE?

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