From My Perspective: Essays on the NextGen Bar Exam and Legal Education

This article originally appeared in The Bar Examiner print edition, Summer 2023 (Vol. 92, No. 2), pp. 24-31.

By Dennis C. Prieto, Susan Landrum, Timothy J. McFarlin, and Wanda M. Temm

NextGen Unites Skills with Doctrine for Today’s Legal Profession

By Dennis C. Prieto

The NextGen bar exam has been announced, and all sectors of the legal profession have responded with utmost interest. By acknowledging that the successful practice of law requires both skill and knowledge, and by testing practical skills as part of its assessment, the NextGen bar exam will help address one of the current divisions in legal academia: the emphasis on doctrine over the importance of lawyering skills. Doctrine, to be sure, is an essential aspect of legal learning and practice; indeed, the NextGen bar exam explicitly announces its doctrinal core: its collection of eight Foundational Concepts and Principles, those on which the new exam will most test each candidate’s competency. But one must acknowledge that to successfully attend to client needs, each doctrinal subject relies upon skillful practice to maximize the investigation, client counseling, writing, or research-indicated outcomes most likely to achieve positive outcomes for clients.

Those of us in legal academia have witnessed this doctrine/skill split manifest through the tensions attendant among doctrinal and clinical faculties that often compete for institutional support. It is a division that has led to few, if any, positive outcomes, because it rarely exists among folks who practice law. Ask around any US county courthouse, and names will come up of those locally renowned for a certain skill, be they courtroom achievements, transactional accomplishments, or other such things. Though law may be announced or even taught within the constructs of doctrinally appropriate sorts of notice, announcement, or decision, law is worked locally, in a particular context. All of this requires familiarity with many different types of skills, from the ­threshold-level skill (to the newly licensed lawyer) of writing a letter to inform a client of a given matter, to the expertise that allows a negotiator to successfully read multiple faces, as well as formal materials, in a meeting in order to understand the range of options available, and at what total costs.

I have been teaching at the college and university level since 1992. From my perspective, an evaluation that mimics aspects of practice is better than one that simply asks about measurable facts inherent in a given study or doctrine. It measures more by assessing both skill and doctrine. And by telling us more, it is a more useful tool, especially for those who write and study about student performance on professional certification. From my professional experience serving on the NextGen Content Scope Committee (and currently, on the NextGen Tasks and Rubrics Advisory Committee), I am confident that the NextGen bar exam will be able to measure those aspects of competency that we will expect newly licensed lawyers to meet and exceed.

Improving measurement for an evaluation determining one’s fitness to practice law will ultimately benefit society as a whole. And the legal profession needs to know what this tool will show us. With recent headlines observing sanctions imposed upon attorneys reliant upon ChatGPT or other AI tools to write briefs,1 it seems to me that more than a few clients might be relieved to know that the attorney they hired actually knows how to do research. And this is but one of many skills that the NextGen bar exam will test.

A formal measurement of skills before entering any profession is a long-standing requirement. The NextGen bar exam evolves this requirement to bring it in line with today’s legal profession. It is an endeavor that I am proud to contribute to. As a long-time teacher of legal research, I am certainly honored to see my chosen field rise to a tested topic on the bar exam. As one who has found great value in research, I am glad future practitioners will need to bring at least a fundamental set of research skills and abilities to their practice, because the study of research is itself the study of how our approach to gathering knowledge changes depending on how, and with what tools, we pursue it. As technology continues to inform research platforms, the time we spend studying research is time spent studying how we understand the world we live in, and how we can observe it changing before our eyes. Those are potent lessons indeed.

NextGen Offers Opportunities for Teaching and Curricular Innovations

By Susan Landrum

Although change can be challenging, the changes coming with the NextGen bar exam offer opportunities for curricular and pedagogical innovation in our efforts to prepare law students to be competent attorneys. Here are a few initial thoughts about how I will approach teaching based on what I have learned from the NextGen Content Scope Outlines, as well as how law schools may develop curricular responses.

Centering the Teaching of Law through a Client-Centered Lens

The Foundational Skills section in the Content Scope Outlines emphasizes the importance of approaching law through a client-centered lens, and there are opportunities for improving how we teach students that approach in doctrinal classes. In the early weeks of law school, we teach students how to read and brief cases. We teach them a case’s various parts, and classroom conversations focus on asking students questions about the cases they have read. Although it is important to teach students how to be prepared for class, one unintended consequence of the Socratic method is that many students focus more on what they need to do to survive class rather than on how to use what they learn to solve new legal problems. But such a narrow focus on the immediate—not being humiliated if called on in class—shifts students’ attention away from the bigger picture, which is that they are not learning law in the abstract; they are learning it because law can be used to address their clients’ needs. The former mindset is actually the opposite of thinking like a lawyer.

I have been thinking a lot about how we can transform students’ class preparation into a client-­centered approach. The starting point is thinking about how lawyers read. Lawyers generally do not read a case without a specific purpose. Instead, they read cases and statutes through the lens of a problem that needs to be solved. Law schools also teach first-year students to take this type of approach, usually in legal writing classes. In legal writing, the professor gives the students a hypothetical client, and the students’ research, reading, and writing takes place with analyzing and solving that client’s problem front of mind. Legal writing courses do this because they are designed to teach lawyering skills, and those skills cannot be taught in the abstract. What if we take a similar approach to other courses in the first-year curriculum?

A client-centered approach to a doctrinal course could start with the premise that the student is a lawyer who has a client, and the client has a legal problem. When students are assigned reading to prepare for class, they would also receive basic client-centric hypotheticals to guide their reading. For example, a typical syllabus generally lists a series of topics with corresponding assigned reading in the casebook. A client-centered syllabus would not just include the general topic and assigned page numbers but would also include hypotheticals to guide students’ reading and jump-start class discussion. Those hypotheticals would ask students to identify key rules, public policies, and other legal principles that could be used to address the client’s problem. Students could also be asked to identify the relevant facts in the assigned case and consider how those facts might compare to their hypothetical client’s facts. Taking this approach would still require students to identify the same parts of the case that they do for a traditional case brief, but using hypotheticals to guide class preparation would help students filter and prioritize information from the reading assignment that is helpful for solving new legal problems.

Integrating Foundational Lawyering Skills into the Doctrinal Classroom and Exam Preparation

Using a client-centered approach to teach doctrinal courses provides a chance to integrate the teaching of foundational lawyering skills into the classroom experience. I envision using the task lists from the Foundational Skills section of the NextGen Content Scope Outlines to develop hypotheticals that give students opportunities to develop lawyering skills. These in-class hypotheticals could flow naturally from the client-centered hypotheticals provided with the pre-class reading assignment. The tasks associated with Foundational Skills Group A, Issue Spotting and Analysis and Investigation and Evaluation, would be a good fit for hypotheticals for 1L doctrinal courses. The tasks in Foundational Skills Group B, Client Counseling and Advising, Negotiation and Dispute Resolution, and Client Relationship and Management, may require some specific skills instruction before introducing them into first-year classes, but they still offer inspiration for structuring classroom and exam hypotheticals for 1Ls and upper-level students.

It is important to be transparent with students about why we construct hypotheticals in a particular way. At the beginning of the semester, I will introduce students to the types of skills lawyers use to solve legal problems related to the subject that I am teaching, and I will likely provide the task lists from the Foundational Skills section of the Content Scope Outlines with the syllabus (with some additional context). I will encourage students to think about how those skills and tasks align with their preparation for class, as well as their synthesis of course materials and their study strategies for exams.

Curricular Opportunities with the NextGen Bar Exam

The NextGen bar exam’s increased focus on fundamental lawyering skills and integrated approach to testing will create new opportunities for law schools willing to embrace curricular change. Here are a few preliminary thoughts on what law schools might consider as they address the future of the bar exam and how best to prepare students to be competent lawyers.

The Model Rules of Professional Responsibility can be tested as part of the testing of NextGen’s Foundational Skills. Should law schools rethink where Professional Responsibility is taught in the curriculum, perhaps placing it in the first year to provide a foundation for integrating it into hypotheticals in other courses?

Integrated question sets create openings for collaboration with those teaching other subjects. For example, I can imagine 1L professors working together to create an assessment testing multiple doctrinal subjects and weaving in Foundational Skills. Or perhaps schools could add an extra credit for a doctrinal course to create more opportunities for connecting Foundational Skills to the subject taught in the course.

Finally, the NextGen Content Scope Outlines provide an opportunity to break down the distinction between “bar-tested” subjects and those the exam does not test. If we look at bar preparation through the lens of Foundational Skills, virtually every course has the potential to prepare students for NextGen if that course offers students the opportunities to develop the Foundational Skills listed in the Content Scope Outlines.

A More Realistic Bar Exam Will Benefit Legal Education

By Timothy J. McFarlin

I often say to my students, “Beyond just teaching this subject (be it Property, Contracts, etc.), I’m here to help you become a great lawyer, a great law student, and pass the bar exam the first time. There’s a lot of overlap among these goals, but there are also many differences.” Although some differences are natural, many are artificial, at least in today’s practice of law. Here, I’d like to discuss how the NextGen bar exam will narrow those differences, helping create a better law school experience as well as lawyers who are better equipped, from day one, to serve the public.

In a nutshell: the NextGen content and form will more realistically reflect the knowledge and skills we expect from newly licensed lawyers. This, in turn, will help shape what teachers like me do in our courses, which will better align course content with what students will do as lawyers.

To illustrate: I’ve had the privilege to serve on the NextGen Content Scope Committee and draft prototype NextGen questions. So I’ve already had the pleasure of incorporating multiple topics and skills from the Content Scope Outlines into a prototype set of questions based on a real-life scenario, one inspired in part by my own experiences as a newly licensed lawyer.

This prototype question set requires test takers to recall and apply key principles of law through a multistage scenario: interviewing a client, filing a lawsuit, and collecting a judgment. It includes multiple-choice and short-answer questions involving issue-­spotting, fact investigation, and client communication. It interweaves several fields of law that test takers must know and use in guiding their client through the scenario.

The set also includes a relevant portion of a statute. Test takers must interpret and apply it using their knowledge of the relevant legal doctrines triggered by the statutory language.

In sum, test takers will use legal know-how to tackle a statute to help a client, like lawyers do.

In my view, this approach substantially improves on the status quo. What is that status quo? It’s often a traditional paragraph-length ­multiple-choice question ending with something like: “In a suit against the person, is the neighbor likely to prevail?” By using fewer questions like this, and by integrating more realistic question sets like the one discussed above, the NextGen exam will better track with how lawyers are tested in real life.

Consider this: how often do lawyers tackle a single paragraph of facts and choose from one of four outcomes based on purely memorized law? Conversely, how often do lawyers pull up a statute, then read, interpret, and apply it based on their foundational knowledge of key legal principles, using it to help them guide a client from an initial interview, through litigation, to collection? 

In the context of a bar exam, pure memorization is rigorous only in the abstract; practicing lawyers rarely utilize it. Truly realistic rigor—the kind that lawyers encounter—involves much more, and much more of that “more” is reflected in the NextGen approach.

So how will all this improve the law school experience? 

First, I think it will make testing more practical. Teachers commonly use sample bar-exam (or bar-exam “style”) questions in class and on exams. We do this for the sensible reason that such questions help test students’ knowledge in a way that prepares them for the type of questions they’ll encounter on the bar. Using the newer NextGen-style questions in law school will help narrow the gap between readiness for the bar exam and readiness for practice.

Second, I expect it will encourage more source-utilization in testing, such as allowing students to read and apply a statute during an exam.  Traditionally, many law school exams are “closed book,” i.e., requiring the memorization of all sources of law, such as rules, cases, and statutes. There can be good reasons for this, particularly if a teacher determines it’s the best way for students to learn the material. As I mentioned above, some differences between education and practice are natural. I just think that “because you have to memorize sources for the bar exam” is an artificial reason, and many of us understandably fall under its sway. That’s why I think the NextGen approach will naturally nudge teachers toward exams that, where possible, will encourage students to use sources as lawyers do—by looking at them.

(It’s important to note, however, that the NextGen exam will not be fully “open book.” It will still require test takers to know a substantial amount of law, as detailed in the Content Scope Outlines. Nor does the current uniform exam entirely lack sources. The Multistate Performance Test, constituting a fourth of the exam’s time and a fifth of its score, includes them. But the NextGen exam will use more sources throughout, resulting in greater realism overall.)

Third, I anticipate that the NextGen approach will help teachers and students draw more connections between courses. The practice of law regularly spans multiple fields. A lawyer defending a tort claim must also consider a client’s potential criminal liability and how settlement communications may be contractually binding. A lawyer drafting a document waiving liability must consider contract and tort law. And so on. The NextGen’s testing of several fields in a single question set will encourage making these connections early and often in law school courses.

Now, is all this rigorous enough from an educational perspective? I believe it is. The more that students work on realistic questions touching multiple fields—and the less time they spend on rote memorization siloed by topic—the better prepared they’ll be for the challenges lawyers face today.

To end where I began: when I talk with students about becoming a great lawyer, great law student, and passing the bar exam the first time, I would love to emphasize that the differences among these goals are few. I think other teachers would, too. The NextGen bar exam—from my experience so far, and as reflected in the Content Scope Outlines—will move us toward that promise.

Legal Education and NextGen: Recommendations for Transitioning to a New Assessment Model

By Wanda M. Temm

One impact of the implementation of the NextGen bar exam that has yet to foster much discussion is its effect on assessment in legal education. Law school exams often model bar exam components, including Multistate Bar Examination (MBE)–style multiple-­choice questions and Multistate Essay Examination (MEE)–style essay questions. Some faculty prefer 60- or 90-minute essay questions, longer than those on the MEE. Some faculty use short-answer questions. Essay and multiple-choice questions will still have a place in NextGen, of course; although the exact structure of these assessment tools is not set, NCBE’s release of sample questions brings some clarity. And we know that one day of 200 multiple-choice questions is not anticipated, but some MBE-style questions will be included. Faculty who rely heavily on MBE-style multiple-choice assessments and lengthy essay questions may need to lessen their emphasis on both. The component that NCBE has indicated will appear on the NextGen exam in almost their current form are Multistate Performance Test (MPT)–type items, although they will be redesigned to take a shorter length of time.

In addition, the NextGen bar exam will be an integrated exam; that is, foundational skills and doctrine will be assessed together. Moreover, more than one topic will be assessed from the same fact pattern. Currently, a faculty member does not combine a foundational skill assessment and more than one substantive topic into their assessments. That is not to say that law school assessments do not include any foundational skills as part of assessments. Issue Spotting and Analysis, a NextGen Foundational Skill, is an integral part of all legal analysis assessments in law school. But rarely would a fact investigation or arbitration question find its way into a doctrinal course’s final exam.

Currently, law school assessments are based on memorized knowledge of the topic or a combination of memorized knowledge with the assistance of study aids during the exam as a professor allows. The student then must identify issues in a fact pattern in an essay, state the law for each issue, and apply the law to the relevant facts. In a multiple-­choice question, the student also must identify the central issue but then choose the response that most narrowly answers that issue. On the NextGen exam, students will not rely solely on memorized knowledge and may be given a statutory excerpt, a case excerpt, a federal rule of evidence or civil procedure, or a regulation and be expected to analyze the issues based on that particular law only. NCBE has indicated in its NextGen bar exam Content Scope Outlines which subtopics will need to be memorized.

How the facts are presented will also change to better reflect real-life law practice. Students may be given a police report, a complaint, a deposition transcript, or other relevant documents and be expected to identify the legally significant facts to analyze their answer. For example, students might be given a contract, be expected to identify incorrect provisions, and then rewrite them.

Law students matriculating in fall 2023 and part-time students who have already matriculated will be the first to take the NextGen exam in July 2026. As the NextGen exam includes content from all first-year courses, law schools should immediately review their assessment tools and decide whether and how much to emulate NextGen-­style questions. Some faculty and law schools may opt to make no changes based on pedagogical reasons. Others may wish to have their students become familiar with NextGen-style questions in their first-year final exams. Each law school will determine how much emphasis should be placed on using NextGen-style assessments.

How can law schools and law faculty transition to such assessments? The reality is that developing valid and reliable assessment tools takes a tremendous amount of time. Just as a novice faculty member must learn about assessment, current faculty must also take on this challenge. If each 1L faculty member incorporates one NextGen-style assessment into their exams, that would be a significant accomplishment. Here are concrete steps to take given our current knowledge about the NextGen exam.

• Aim to include one foundational skill question from the Issue Spotting and Analysis set of questions on an essay. Ask students to “Identify which [two or three] facts are likely to be relevant to or dispositive of a legal issue” or “Identify the strengths and weaknesses of a client’s position or an opposing party’s position based on the relevant legal rules and standards.”
• Rather than include a lengthy fact summary, break the fact pattern into more than one section and ask short-answer questions for each. In Property, have facts that address delivery of a deed and then include the recording statute, add facts about another claimant to the property, and ask a question about whether that individual is a bona fide purchaser.
• Instead of a summary of the facts, provide a complaint and its answer or a police report or other practical document. For example, provide the litany of an interrogation in Criminal Procedure and ask questions regarding waiving Miranda warning.
• Provide specific law for the student to analyze rather than having them rely on memorized knowledge. This is particularly critical for Criminal Law that will no longer include common law crimes. Start with a statutory excerpt with facts particular to that statute. Then add a different statute and ask questions about additional but related facts. One issue could be on the mens rea and another on an element of the crime.
• In upper-level courses, have law librarians at your school present on advanced research skills for the course’s particular topic and require the students to complete a research exercise to demonstrate and practice their skills.
• Include a drafting assignment in addition to a final exam. Students in Civil Procedure would draft a complaint. Students in Torts could draft a discovery plan. Students in Contracts could draft contract provisions.
• Include a foundational skills component as a module in a course and do an assessment. Include a client counseling exercise in Property on issues relating to purchasing property. Include a plea negotiation exercise in Criminal Law.
• Work with a colleague to develop questions to use on each other’s exams that incorporate both topics. For example, Torts and Civil Procedure faculty could work together on a problem requiring fact investigation. From the same fact pattern, the Torts professor’s question would focus on facts to support the elements of the Tort. The Civil Procedure professor would focus on facts to support the discovery of the action that would toll the statute of limitations or which affirmative defenses to raise. The Civil Procedure professor could include the statute that states the limitation of the action and a case on tolling.

Changing how we assess our students in law school will be a challenge for each of us. We are used to providing our hypotheticals in a summary and having students rely on memorized law. Yet we know that attorneys do not just rely on memorized law. Including NextGen-style questions will frame legal analysis in a way that is more like real-life law practice. The possibilities are endless and limited only by our imaginations.

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