The bar exam as we know it is under fire. From ditching multiple choice to making the test open book, here's the changes legal experts are calling for.

  • The bar exam has long been a rite of passage for would-be lawyers.
  • But those in the legal industry are questioning how accurate the bar exam really is in determining a lawyer's abilities to serve the public.
  • Seven legal experts discuss various alternatives for admitting new lawyers into the profession, ranging from modifying the existing bar exam to replacing the test with training programs at law schools or firms.
  • Two options for reforming the bar exam include scrapping or reducing the multiple-choice portion of the exam, or breaking up the exam into several, lower-stakes tests.
  • Boosting clinics at law schools or implementing postgraduate training contracts at law firms would emphasize practical experience over rote testing, though some experts question the feasibility of these models at scale.
  • Visit Business Insider's homepage for more stories.

With the worst of the bar examinations — from last-minute cancellations to technical glitches on test day — over for most states for now, some in the legal industry are calling for changes to how new lawyers are admitted to the profession.

The bar exam has long been a strenuous rite of passage for would-be lawyers, who spend weeks studying and taking cram courses to sit for a multi-day exam that ultimately determines whether they can start practicing law.

Legal experts, however, are questioning the validity of this current, high-stakes iteration of the exam in determining a lawyer's abilities.

"The purpose of the bar exam is to protect the public, by ensuring that entry-level lawyers have minimum competency," explained Jennifer Mnookin, dean of the UCLA School of Law.

While the exam does test candidates for their legal analysis and writing skills, it also "tests testing," said Kate Reder Sheikh, managing director at recruitment firm Major, Lindsey & Africa. As a result, she said "excellent lawyers" who aren't the best test-takers may be "kept out."

The escalating critique of the bar has led to reform in some states amid the upheaval caused by the pandemic this summer. California permanently lowered its passing score in July, and Oregon and Washington adopted a one-time diploma privilege, allowing this year's candidates to practice law without taking the bar exam. The change, however, was limited to just a few jurisdictions, with most of them opting to proceed with an online test.

Read more: From delayed starts and blurry text, law grads in New York and California faced a slew of technical glitches on the online bar exam

"What this summer has shown is that most states are pretty reluctant to think about dramatic changes," said UCLA's Mnookin, referring to their adherence to the bar exam despite pushback from much of the legal community.

"But I do think that what's happened with the pandemic and the response will put significant — and welcome — pressure on both state bars and the National Conference of Bar Examiners (NCBE) to think hard about whether the exam in its current form is appropriate," continued Mnookin. "I do think we're likely to see further reform and change."

But what could this change look like? Business Insider spoke with seven legal experts, ranging from recruiters to a judge on the NCBE board, on possible alternatives for admitting lawyers to the bar.

Keep the bar exam, but scrap the multiple-choice portion, narrow the focus of topics covered, and make it open-book

A less radical option is to keep the bar exam, but modify it in a way that would make it a more accurate test of one's abilities as a lawyer. For example, Stan Chess, the former president of Barbri, the bar exam prep company, said that he would drop the multiple-choice portion of the exam entirely.

"It's testing your ability to answer questions in a particular manner that has nothing to do with your ability to practice law," he explained. "The practice of law is not multiple choice."

Stan Chess, the former president of he bar exam prep company Barbri.Stan Chess

The two other parts of the bar exam — the essay and performance tests — are much stronger measures of what a lawyer actually does: analyzing an issue, formulating a solution, and communicating that solution with clients, said Chess.

Judge Cynthia Martin of the Missouri Court of Appeals, who is the chair of the NCBE's Testing Task Force and is studying the bar exam to suggest reforms to its executive board, told Business Insider that while she thinks "it's nearly impossible to fathom" dropping the test's multiple-choice section entirely, it is more likely that the bar could see a shift toward replacing some multiple-choice questions with more short-answer and essay types. 

And, instead of testing candidates on virtually every topic of the law, Judge Martin said that narrowing the scope of topics tested within certain core foundational areas of law — such as evidence, contracts, and civil procedure — would make the exam a more valid measure of a new lawyer's abilities.

"You can't expect a new lawyer to know about every complexity and nuance of each subject area," she said. "You don't want the breadth or the depth of coverage in your exam questions to go beyond what a newly licensed lawyer needs to know."

Another change would be to make the exam open-book, which would better replicate the actual practice of law. "The bar should be testing how you apply the law, not whether you can memorize it," Chess said. And, in response to critics who fear cheating, he proposed that the bar supply a clean book with the necessary laws and precedents to each test-taker.

Read more: New York's bar exam is cancelled. Here's why calls are mounting for the test to be canned completely.

Break the bar exam up into smaller, lower-stakes components

UCLA's Dean Mnookin similarly recommends keeping a licensing exam for lawyers, but breaking it up into several tests — something more akin to the Certified Public Accountant exam, which is composed of four, independent sections that candidates can take in any order.

If a candidate passes only three out of four tests, they can retake just the test they failed, rather than having to wait six months to take the entire exam.

"The current exam is an intensive, two-day, exhausting marathon of a test, where the stakes are too high," said Mnookin. "Critics might argue that there's value in the synthetic, overarching approach the current bar takes. But, on balance, the emotional and financial costs of that probably outweigh the benefits."

Parts of this new, broken-up bar exam could be moved into law school, further shortening the time that new graduates have to wait before they can start work, she added.

A move toward a wholly uniform bar exam across all jurisdictions

There seems to be a consensus among the legal experts surveyed by Business Insider that there is a move towards uniformity across states.

Currently, 38 of the 53 jurisdictions in the US have adopted the uniform bar exam (UBE), which allows test-takers in those jurisdictions to practice in other participating states.

"It would be best for the profession, the graduates, and the public if lawyers are able to seek employment nationally," explained Mnookin. "There's a lot of value in having a portable license."

Judge Martin added that, while local laws may differ from state to state, it "doesn't make sense" for lawyers to have to redemonstrate their abilities if they wanted to move to another jurisdiction after being admitted to the bar.

Chair of the NCBE's Testing Task Force Judge Cynthia Martin.NCBE

"When you get a license to practice law, it's a general license. It's not like a doctor where you ultimately certify as a heart surgeon or an orthopedic," she said. "The exam cannot test everything. It's testing fundamental concepts that really transcend practice areas."

Instead, Martin thinks it would make sense for all states to adopt the UBE, and have additional, low-stakes tests or other credentialing requirements that would cover state-specific laws.

Test new lawyers through experience over exams: adopting a clinical training model similar to medical schools

Several industry experts envision a training model within law schools that's similar to medical schools' residency programs, where students gain practical experience that is more valuable than a two-day, sit-down exam.

"I wouldn't let a doctor who hasn't done a few surgeries under the supervision of a practiced surgeon operate on me," said Mary Lu Bilek, dean of the CUNY School of Law. "It's the same with law."

According to Sheikh from Major, Lindsey & Africa, under the "training contract" system, graduates enter straight into a two-year apprenticeship at a law firm, where they complete six-month rotations in four key practice areas. A benefit to this is that new lawyers aren't just "throwing darts at the wall" when it comes to choosing a specialty, she said.

Sheikh, who recruited in the UK for three years, added that she noticed that fewer lawyers there wanted to change jobs compared to the US, suggesting that the practical experience provided by the training contract system allows graduates to find a practice that's a better fit for them.

When translating this model to the US, Sheikh recommends a shortened version of this: maybe six months or one year after law school.

One downside to the training contract is that trainees would be paid less than the roughly $180,000 starting salary that entry-level lawyers enjoy. Sheikh pointed out, however, that it presents a better alternative to the current situation, where many graduates have been unable to start work due to delays to the bar exam.

Read more: Big Law career guide: How firms are navigating the new normal, which practice areas are faring the best, and how pay is shaping up

Another consideration is the model's sustainability in the US. "It would be very expensive for the kind of volume you're talking about in the US, where you have upwards of 30 to 40,000 new graduates each year," said Judge Martin. She also added that this type of training model may increase inequities within the legal industry, since much of it would boil down to the connections you have, given the limited resources.

There'll likely be pushback from law firms, Sheikh said. "It's a major sea change that would have to be undertaken by managing partners."

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