Teaching to Prepare Students for Practice and the NextGen UBE

This article will also appear in the Fall 2026 issue of The Bar Examiner.By Michael Hunter Schwartz

Imagine you are a law professor teaching a bar-tested, doctrinal course. Your learning outcomes include students (1) learning key doctrinal concepts in the field; (2) developing lawyering skills characteristic of lawyers who practice in that field to a degree commensurate with the course’s place in the law school’s curriculum; and (3) enhancing the skills, including issue spotting and legal analysis, tested on the bar exam. With the imminent implementation of the NextGen UBE, those goals will not change. What will change, however, is what you need to do to achieve the last outcome. Wonderfully, the adjustments you make to achieve this third goal are likely to enhance your success in achieving the second. This essay offers five concrete suggestions for adapting your teaching and assessment practices in the NextGen era.

A few foundational points warrant consideration at the outset. Learning doctrinal concepts must be understood to refer to something more than mere rote memorization; it refers to being able to use those concepts to perform legal analysis. The NextGen UBE has been designed to take things one step further; it will assess doctrinal and lawyering skills in simulations that, as much as possible, approximate what practicing lawyers do.

Below are my five suggestions for effectively teaching students lawyering skills in doctrinal classes and preparing students for the NextGen UBE. While my focus is on achieving outcomes (2) and (3), it is worth noting that, if you modify your teaching in the ways I suggest, there is reason to believe your students will better learn the doctrine you teach (outcome 1) as well. Studies of adult learners have found that students learn best when their instruction occurs in the context of tasks students will perform when they are in the real world.1 In other words, by teaching the doctrine in the context of its law practice implications, your students are likely to better learn that doctrine.

1. Begin each new doctrinal area with a client problem the students can fully analyze by the end of the unit.

As we know, lawyers delve into doctrinal intricacies in the context of client problems. The NextGen UBE does the same. Consequently, in designing your doctrinal course, consider introducing each doctrinal subtopic (e.g., homicide in criminal law, subject matter jurisdiction in civil procedure, child custody in family law2) with a problem the students can address by the end of studying that subtopic.

Beginning a unit with a problem is a powerful enhancement. First, the technique capitalizes on the pre-testing effect, the phenomenon that students who attempt to answer questions about a topic before they study the material eventually understand the topic better and remember what they have learned longer, even if their initial guesses were wrong. Second, such problems contextualize concepts by demonstrating their real-world implications. This context increases the likelihood that students will be drawn into the learning process. Third, such problems ensure students receive formative assessment of NextGen-tested and law practice skills. Fourth, by trusting students to act in the role of attorney, you communicate your belief that they are capable of doing so, thus building their confidence. Finally, such problems minimize the leap students have to make between abstract conceptualization and thoughtful application.

The good news is that there are law school casebooks structured in this way, and it is easier to create such problems than you may imagine. For example, students studying contract interpretation can be given a set of facts and a contract that includes an ambiguity that is at issue given the facts. The students can be asked to write a client letter explaining the ambiguity and how a court would be likely to resolve it.

Students studying negligence could be given a complaint alleging negligence and be asked to draft an answer. The complaint and answer exercise produces multiple benefits. The exercise shows the forms of legal documents and the importance of well-pleaded expression. The exercise also requires students to consider the legal elements of each claim and identify which alleged facts connect to each cause of action. That task reinforces a broad grasp of negligence, the skill of breaking down rules, and the necessity of careful factual analysis.

As a third example, students learning free speech law could be provided a memo analyzing a client’s free speech issue and be asked to identify five flaws in the memo in light of what they have learned throughout the course. This example can be an effective tool in another way: You could draft the memo using AI and tell students you have done so. This approach will allow them to practice being critical consumers of AI work products.

As a fourth example, students studying piercing the corporate veil could be given a memo summarizing a client interview and data from a state’s business registry regarding ownership. The students can be asked to craft a fact investigation plan designed to uncover evidence that bears on the effort to pierce the corporate veil.

Finally, students could be asked to imagine themselves as lawyers representing a tenant client. The tenant client reports a broken HVAC system and, because the client has heard that the landlord moves slowly regarding such matters, the client wants to pay for repairs themselves and deduct the payments from their rent payment. The students could be asked to identify the risks to the client of adopting this strategy.

2. Create problems that provide a continuing, complex problem from which you will draw hypotheticals.

There are ways to create even greater authenticity in law practice problems you ask your students to analyze. For example, you can begin a family law course by presenting students with a case file for a complex divorce that includes a suspect prenuptial agreement, extensive separate and joint property holdings, and multiple and complex child custody issues. You can even add facts as the course progresses that change some of the issues initially presented such as a postseparation pregnancy.

My Contracts text3 includes a lengthy contract into which I have deliberately integrated ambiguities and omissions. From there, it is easy to create a problem in which a dispute arises over an alleged promise not included in the writing; a proposal to modify the contract to add a new duty; a conflict over the meaning of an ambiguous term; a dispute regarding the existence, occurrence, and excuse of the nonoccurrence of an alleged express condition; a conflict over whether a nonparty to the contract is an intended third party beneficiary; and many other scenarios.

In Civil Procedure, students can be given a case file for a relatively new matter. Over time, they can be given additional materials and tasks by their professor such as preparing for an oral argument regarding personal jurisdiction, receiving a cross-claim that arguably does not meet the standards of Federal Rule of Civil Procedure 13(g), responding to a motion for a change of venue, challenging a demand for documents that seeks arguably privileged documents, and so on. Toward the end of the course, students could be informed about the result of a trial regarding the matter in the case file and provided with a new set of facts that give rise to issues of issue and claim preclusion.

In Evidence, many evidentiary problems can be built around a single matter, and there is at least one evidence text that provides such a format.4 Most easily, students may engage in brief oral arguments relating to a variety of motions in limine. If you can obtain a video of a real or simulated trial, this approach would allow your students to see how some issues arise in real time. Pause the video for discussion, then play it to see how the parties argued the objection and how the judge ruled.  

3. Ask hypotheticals that put students in role rather than abstract hypotheticals.

Many law professors also ask shorter hypotheticals as part of their regular teaching practice. Those hypotheticals can readily be modified to both strengthen students’ understanding of the doctrine and prepare students for practice and the NextGen UBE. This modification is likely to help students learn the doctrine better. Many students struggle to see the real-world implications of the doctrine they learn. By asking the same kinds of questions while making more explicit the link between the doctrine and its practice implications, the link will be more transparent, and the students are likely to engage more deeply and learn the material more fully.

For example, in Torts, a hypothetical client could text the student lawyers from the scene of a car accident asking for legal advice by text. Of course, the (student) lawyer’s initial response must be to explain that the attorney cannot provide legal analysis by text (a nice mini-detour to the lawyer’s duty of competency). After that detour, students can be paired and have one student (in the role of attorney) explain to the other student (in the role of hypothetical client) how the attorney would investigate the matter to prepare for settlement or trial.

In Property, students can be asked to evaluate, for a supervising law firm partner, the strengths and weaknesses of an inverse condemnation claim for a taking of property.

In Criminal Procedure, students can be asked to evaluate a proposed plea deal given a set of sentencing guidelines if the client’s only credible way to avoid criminal liability is an allegedly unreasonable search. This exercise would require the students to not only craft arguments but also evaluate the arguments’ strength and the risks of losing a challenge to the search.

Finally, in Constitutional Law, students can be placed in the role of attorney for a senator (who is not an attorney) and asked to explain to the senator, in layperson’s terms, whether a proposed statute can be justified under the commerce clause.

4. Modify your past assessments to be similar to NextGen UBE questions and create new ones.

Updating material for the NextGen era does not require you to discard your past exam questions. Questions may be modified to be NextGen-style questions. Even small tweaks to the call of your question can help your students see more clearly what they are expected to do with the material you have taught them, which in turn will also be useful for licensure and practice.

More easily, you can modify your past essay exam questions to be NextGen-style performance questions by requiring students to draft an objective memo, a brief, or a client letter explaining the strengths and weaknesses of the client’s case. Instead of ending your question with “Discuss” or “Discuss [client name]’s First Amendment claim,” you can end your question with: “You are an attorney representing [client name]. Write a letter to your layperson client evaluating the strengths and weaknesses of their claims.”

Likewise, if you have administered multiple-choice questions in the past, you can modify them to ask about key facts, claims, elements, outcomes, areas for future investigation, or subjects for research.

Even the NextGen UBE’s most significant innovation, Integrated Problem Sets, can be emulated. For example, as exemplified by a sample integrated problem set on the NextGen website,5 you could modify a past landlord-tenant problem into a series of questions asking students (1) a multiple-choice question that requires the students to apply doctrine they have learned; (2) a short-answer question that asks them to identify key facts; (3) a short-answer strategy question about actions the landlord could take; (4) a fact-analysis multiple-answer question asking students to identify facts that would strengthen the tenant’s claim; and (5) a strategy question asking students to identify drawbacks to a proposed settlement.

5. Implement shorter and more varied NextGen-style assessments.

A bit of assessment theory and best practices undergirds this recommendation. First, an optimal assessment is both reliable (would achieve the same results if administered again) and valid (assesses, accurately, the skills needed and taught). Thus, for example, a bar or law school exam that consisted entirely of multiple-choice questions would be very reliable, but, because lawyers do not answer such questions in practice, would be less valid. Of course, a bar exam that consisted entirely of performance-style questions would be more valid, but, because there are multiple ways to perform lawyering skills well, and because the grading would have to be done on a case-by-case basis by busy practicing attorneys, such an exam would be less reliable.

Second, administering multiple assessments increases the accuracy of conclusions about learning by providing more data. The greater variety of assessment types increases opportunities for a broader group of students to demonstrate mastery. Traditional law school and bar essays both inhibit the ability to administer multiple assessments and are so ubiquitous that there is no space for variety. These factors are difficult to justify given the several studies that have demonstrated that the skills assessed in law school and on bar exams are a small subset of the skills successful lawyers use in practice.  

Thus, the NextGen UBE offers an important side benefit by helping law faculty envision ways to improve the quality and accuracy of their assessments. NextGen UBE assessment innovations, including short-answer questions that ask students to evaluate a proposed settlement of a matter or plea agreement, multiple-answer questions that ask students to identify a specified number of flaws in a draft pleading or contract, and questions that require students to plan factual investigations relating to proving a doctrinal requirement, are promising opportunities for law faculty to increase the validity of their assessments without sacrificing reliability. In addition, by administering short, even 30-minute, assessments that test a variety of law practice skills, law faculty members’ grades are more likely to be accurate, and tested material is more likely to address a wider spectrum of the skills essential to successful law practice.

As the above discussion reflects, I am optimistic about the possibility that the NextGen UBE will be an impetus for improvements to legal education. Our teaching seems likely to get better. I am not, however, looking at the new exam with rose-colored glasses. It may take time for the new types of questions to achieve the high reliability of the current MBE exams. No matter how we change law school or bar exams, and even though most good lawyers would not risk malpractice by relying solely on the law they remember, candidates are likely to have to work from remembered law. Likewise, the time limits on law school and bar exams inherently test speediness to a degree uncharacteristic of even the busiest law practices. But those issues cannot be resolved in the context of bar examinations, and it is nevertheless exciting to be on the precipice of change for the better.