Saturday, August 09, 2008

This Way to the Bar Exam

Google Maps driving directions to the bar exam from my father-in-law's house.

"The bar exam is a complete waste of time and resources," a fellow student said to me while we both were studying for last week's terminal law exam. "It's a drag on the economy." A law graduate's time was better spent, he said, on something – anything – other than a test that required each graduate to review the basic framework of so many areas of the law. (In California, an applicant can be tested on 17 subjects. In New York, it's 21.)

Critics of the bar exam see it as little more than a protectionist measure. By forcing new lawyers to jump through a challenging set of hoops, the state bar accomplishes two goals. First, it limits the number of new lawyers, thereby hampering competition and raising prices. Second, the bar uses the exam (and other legal entrance requirements) to deflect criticism without actually improving the profession. Want to make lawyers more ethical? Well, one way to try to do so is to raise the lowest acceptable score on the MPRE (the Multistate Professional Responsibility Exam, a pre-bar exam test for law students), as California did this January. Because, of course, unethical students couldn't learn legal ethics for the purposes of a multiple choice exam. Of course they couldn't.

I've taken a lot of standardized tests in my day: LSATs, SATs, ACTs, an AP exam or two. The bar exam was the first such test I've taken where the body giving the test makes it abundantly clear that they are NOT on your side. The bar exam is inflicted on would-be lawyers by current lawyers, with all the care of a fraternity paddling.

You hear stories of the guy who forgot to turn off his cell phone and was bounced out of the test. The chief proctor remains you again and again that various minor misdeeds – for example, getting up to go to the bathroom during the last 5 minutes of any of the six 3-hour sessions – will result in the administration an Orwellian sounding Rule 12 Violation. The test is capricious, spiteful, and arbitrary, and it's a damn shame that it has such a profound negative economic effect on so many people who graduate law school only to struggle to pass the bar.

Yet, the bar is a necessary evil on two fronts.

1) It's good to force every lawyer to look deeply into a varied set of subjects. Out of the subjects that could have been tested last week, I knew practically nothing about criminal procedure, wills, trusts, community property, or partnerships prior to studying for the exam. Beyond these unknown areas, most of the other subject areas were topics that I'd studied during the first year of law school, only to never think about again.

I'm joining a law firm this fall that has a narrow and specialized practice, focusing exclusively on securities work and other corporate matters for start-up companies and venture capitalists. Of the 17 areas I studied like mad for the bar exam, only three (contracts, corporate law, and partnerships) will be applicable in the job that I'm about to begin.

Yet who knows what the future holds for my (or any one else's) legal career? Much as I think I'll enjoy this new job, I may someday find myself doing divorces, handling real estate transactions, helping someone plan their estate, or arguing a constitutional claim. Who knows?

What's for sure is that my friends will know that I'm a lawyer and, in a pinch, they're not going to care what kind of law I practice. They'll want me to provide them 30 seconds of counsel regarding their divorce, their home purchase, their arrest. And even though the best advice I could give them would be to usher them toward someone who is experienced in their particular problem area, it'll be helpful for me to have at least a baseline understanding of what they're facing.

Does the bar need to make the exam so onerous to accomplish the goal of making sure each lawyer has a sufficiently broad understanding of the law? No — they could make the second year curriculum as rigid as the first year, insuring that each student took the bar exam courses, even at the cost of studying areas of the law they find interesting. But a softer test with more required courses is not going to happen because of the next point.

2) Law schools – at least my law school – are rather lax about quality control. I went to law school with some of the most intelligent, hard-working people I've ever met. I also went to law school with some of the most unrepentant slackers I'll ever hope to meet.

As I noted a few months back, if you make it to the final semester of 3L at my school, you're practically guaranteed to graduate. Even prior to passing this graduation event horizon, the degree to which people skate by, er... customize law school to their own needs is really amazing.

To pick one area where people are permitted to graduate while phoning it in, let's look at lecture attendance. Sure, the ABA paternalistically requires perfect attendance from law school students. Yet, (in my experience) such a rule is only enforced by hollow threats and mock professorial scorn. The Socratic method means calling on students each class, and there were a set of names that I got used to hearing in law school that just weren't connected to people. Listening to the optimistic and naive professor calling their names reminds me of the words of the great philosopher Mitch Hedberg:
When you go to a restaurant on the weekends and it's busy, they start a waiting list. They start calling out names, they say "Dufrane, party of two. Dufrane, party of two." And if no one answers they'll say their name again. "Dufrane, party of two, Dufrane, party of two." But then if no one answers they'll just go right on to the next name. "Bush, party of three."

Yeah, but what happened to the Dufranes? No one seems to give a shit. Who can eat at a time like this — people are missing. You fuckers are selfish... the Dufranes are in someone's trunk right now, with duct tape over their mouths. And they're hungry! That's a double whammy.

We need help. Bush, search party of three! You can eat when you find the Dufranes.
Granted, having attended almost all the assigned classes during law school, I can see why people don't come. On occasion, class took on the feel of oral argument before the Supreme Court: It was an exercise that is just for show, because the result is determined on the basis of other factors. Just as the justices make up their minds on the briefs, if you've already made you mind up regarding a case's holding after reading it, class just might confuse you.

Naturally, the basic problem with the I-don't-need-to-go-to-class attitude is that you are never the problem, it's always the other guy. They might need to go to class to really master the material, but you're past that. You get it. It's not your problem.

It's the reliance on donations – donations that come from graduates, not drop-outs – that provides the systematic impetus for pushing people through law school who are incapable or uninterested in pulling themselves through. Yet, the bar exam doesn't have any such conflict. It's not going to cut you any slack, applicant.

The bar exam is a train wreck, and the test could be administered far more equitably. If the goal of the exam is to insure lawyers have at least a basic level of knowledge in the tested areas, I'd prefer that they test ALL the areas every year, instead of only rotating through essay topics, thereby testing a fraction of what you've studied and forcing you into the dangerous game of guessing the content of this year's test.

I disagree with my fellow classmate who saw the exam as little more than a waste of time. Despite the frailties of the test itself , the sixty day frantic review that precedes it produces social value by creating more generalists and offering law school slackers a chance at redemption.

"The bar exam only tests one thing," a future co-worker of mine said earlier this summer. "It tests whether you can set aside your regular life in the service of a big project." That's about right.

1 comment:

Ralph Haygood said...

Thanks for the thoughtful post. I don't spend much time with lawyers, so I now have a much better idea what the bar exam is like than I had before.

I do, however, know quite a bit about setting aside your regular life in the service of a big project, among other reasons because I'm about to launch a web company, probably mid-September. I'm intrigued to read you're going to work on corporate law for start-ups and VCs. I'd highly welcome posts about that as you get into it.