Best Practices for Legal Education

Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law, The Ohio State University.

A few weeks ago, Logan Cornett and I published a major study of the work that new lawyers do—as well as the knowledge and skills they need for that work. John Lande has already offered two thoughtful posts about the study (thanks, John!). We think the research offers important information for legal educators, bar examiners, and workplace supervisors: we need to align education, licensing, and supervision to improve the service that new lawyers provide clients.

Will it be possible to achieve that alignment? In particular, can we make the bar exam a more valid assessment of the knowledge and skills that new attorneys need? I hope so. Neither states nor the National Conference of Bar Examiners (NCBE) have ever validated the current exams; that means we have no evidence that the skills and knowledge assessed on the exams match the ones that new lawyers use in practice. NCBE’s current attempt to validate the exam—through survey evidence—does not capture sufficient detail about the ways that new lawyers use their knowledge and skills in the workplace. Our study, based on 50 focus groups held in locations across the country, provides those more detailed insights. Combining our findings with those from NCBE’s study and other research could yield a valid licensing process.

An invalid exam would be embarrassing enough for a profession that prides itself on logic and reason, but our current bar exams have another flaw: they pass white candidates significantly more often than candidates of color. An exam that has never been validated, yet discriminates against candidates of color, is unthinkable in the modern age—and yet, we have tolerated these exams for decades.

It’s time to change, but will we have the courage to do so? Our profession has a deep attachment to closed-book exams, multiple choice questions, and time-pressured tests. The research that Logan Cornett and I did convincingly shows that none of these assessment methods are appropriate for the legal profession. Entry-level lawyers work from sources, not memory; they gather information to solve open-ended problems rather than choosing one canned answer from four; and, although they often practice under time pressure, the time constraints on the bar exam are dangerously unrealistic.

We need to challenge all three of these obstacles to a valid licensing process. Our report suggests many ways to accomplish that end. Here’s just one modest proposal that would significantly improve the validity of the bar exam:

• Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
• Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
• Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
• Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.

Our research suggests that the final doctrinal component of this exam should be open-book; new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem. But if bar examiners insist on a closed-book exam component, they could make this portion of the exam closed-book. Memorizing the rules related to a single subject—especially if the subject reflects an area in which the lawyer hopes to practice—more closely parallels the work that new lawyers do than memorizing the rules that govern ten or more fields.

A bar exam with the four components listed above could be administered according to our current schedule. I.e., candidates could take the MPRE on one occasion and the other three components over two days in late July or February. Alternatively, the proposed exam could be divided into five different components (the MPRE, each of two performance tests, the research test, and the doctrinal test) and states could allow candidates to take the components at different times and in any order. Breaking the exam into components would relieve some stress and give candidates more flexibility. It might also allow candidates to determine, while still in law school, that they lack skills needed for law practice—and either choose a different career or remedy those deficiencies through more coursework.

Our report offers other options for licensing, including a rigorously structured diploma privilege. We also recommend that states complement any written exam by requiring candidates to complete law school clinics and courses in client counseling and negotiation. Those experiences assure instruction, practice, and feedback on skills that are difficult to test through a written exam.

It’s time to get serious about aligning legal education and licensing with the work that new lawyers do. Only then will we fulfill our mission of protecting the public.

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