Why Bar Examiners Should Eliminate Essay Questions and Focus on Performance Tests

The NCBE has announced that in four to five years, there will be a different bar exam.  In the interim, why not make changes to the existing exam so that it better reflects the skills needed in law practice?  One easily implementable change: eliminate the essay questions and use the time allotted to those questions for the performance test questions.

This idea was raised by  Professor Deborah Merritt in her talk at the BYU Annual Law and Leadership conference. The idea stems from her groundbreaking study on the skills new lawyers actually need to competently represent clients.  Professor Merritt and researchers at IAALS analyzed data from 50 focus groups conducted in twelve states with a diverse group of new lawyers and their supervisors across a range of practice areas. 

The study data confirmed what we intuitively knew: that the bar exam MPT performance test most resembles what new lawyers do in practice. 

On the other hand, bar exam essay questions require examinees to memorize significant amounts of information beyond what they must already memorize for the multiple choice questions [MBE].  Many of the subjects memorized for the current essay questions will be eliminated from the NCBE’s proposed new exam.

The essay questions also do not allow examinees to research or review the applicable legal rules before answering, and they have little relationship to how new lawyers approach problems in practice.  On the other hand, the performance test questions do relate to the skills new lawyers use.

As Sara Berman notes in her book, Bar Exam MPT Preparation & Experiential Learning for Law Students mastering how to take the performance tests is an opportunity to practice skills necessary for law practice.  This book offers a logical and easy to follow process for studying for, and taking, the performance tests. 

Given the existing bar exam format, Berman appropriately devotes a significant portion of the book to strategies that help examinees understand how to write an effective answer in the time allotted.  Her excellent advice and strategies are particularly useful given the tight time frame examinees have to answer these questions and she provides a lot of sample questions for practicing skills, including reading all the materials and drafting a document in ninety minutes. 

Berman’s strategies for managing the MPT time constraints make sense because, as Professor William Henderson’s study confirmed, test taking speed on tests such as the bar exam is an independent variable when it comes to assessing test performance.  Thus, it is important to teach students to quickly answer test questions.  However, is that the message we should be sending?  Should we be encouraging speed over careful reading and ensuring accuracy?  

If the NCBE eliminated the essay questions and allotted that time to the MPTS, or even if it simply gave states the option to adopt this change, it could study its impact.  Currently, we don’t know whether three hours versus ninety minutes to answer an MPT question makes a difference, and if so, for whom. Does the difference affect those who come close to, but do not achieve, the arbitrarily set passing cut scores?   These questions are particularly important given the significant impact cut scores play on the profession’s racial and ethnic diversity. 

This minor change, which could have a major impact, is just one of the many innovative ideas presented by Professor Merritt at the BYU conference on law licensing reform.  Her remarks, as well as the remarks of other conference speakers, are available if you scroll to the bottom of this website.

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