Perspectives—“I’ve Looked at the Bar from Both Sides Now…”

This article originally appeared in The Bar Examiner print edition, Winter 2019-2020 (Vol. 88, No. 4), pp 29–32.

By Neil Fulton

Outside of the applicants themselves, bar examiners and law school deans may have the greatest interest in the bar examination. But they can have very different perspectives. These competing perspectives, and the need to transcend them, were driven home to me as I moved from serving on the South Dakota Board of Bar Examiners to serving as dean of the University of South Dakota School of Law. As the song that inspires the title says,1 I’d looked at the bar exam from both sides now, but I really didn’t know it at all.

I had a clear view of my role as a bar examiner: to protect the public. Bar examinees had to clearly demonstrate the minimum competence necessary to handle the property, liberty, and lives of other South Dakotans. There are no “levels” of licensure. The same was true in character and fitness hearings. Applicants who lacked candor and honesty or engaged in significant unprofessional behavior simply were not proper candidates to be lawyers.

And what did I think of law schools? Honestly, I sometimes questioned what law schools were doing as I read poorly reasoned, poorly written, or outright incorrect essays and saw sharp drops in MBE scores from 2014 to 2018. The exam is important; why can’t schools figure it out? Bar examiners learn about the methodology and validity of the exam and follow research on effective bar preparation. Law schools should do the same.

Fast-forward to my first days as a law school dean. When I looked at the bar exam, I saw a test with high stakes for students and law schools. But I also saw a fundamental disconnect between legal education and practice, and minimal engagement from educators or practitioners. As a legal educator, I was too ready to limit my engagement with the bar examination to waiting impatiently for pass rates, lamenting them when they were low and trumpeting them when they were high, and excluding preparation for the examination from being a vital part of the continuum from education to practice.

As a dean, I do think a lot about whether our curriculum provides students a balance of knowing key doctrine, understanding how to engage in legal reasoning, being able to communicate orally and in writing, having a host of experiential opportunities, learning ethical practices, and achieving some degree of specialization in a preferred area of law. We are asked to do a lot in three years. What do restricted-time, closed-book, and multiple-choice tests tell us about all that? Why should we have faith in this as a benchmark of “minimum competence”? From my office, the legal education and bar examining environments can feel like different universes.2

So, my two roles produced two perspectives. It would be easy for law schools and bar examiners to toss their hands up and say, “We just see things differently.” After having been in both roles, however, I think the better approach is for law schools and bar examiners to say, “We’re in this together,” and look for ways to work together to improve the bar examination and the preparation of applicants. I think there are a few key ideas for doing that.

1) Ditch the disconnect.

The most fundamental lesson I’ve taken from being a bar examiner turned dean is to build connections. Law schools and bar examiners need to communicate and understand one another.

One of my first steps as dean was to arrange an annual meeting with South Dakota’s bar examiners during our state bar convention. It provides a chance to ask bar examiners to help me understand issues and trends they are seeing in exams and applications. It gives the bar examiners a chance to ask me about developments at the law school and how we are preparing our students. It lets all of us discuss developments at NCBE and possible feedback to provide. Regular communication has helped our students see that the board of bar examiners is not an inaccessible entity only to be feared and not understood. Other jurisdictions that conduct similar meetings between their law schools and bar examiners will understand the value of such regular communication.

We do not look at every issue the same way. But we know better what issues are out there and how the “other side” sees them. Knowing this has helped us both be better resources for applicants. In just one year it has helped our law school develop FAQs for bar applicants, provide student sessions on the application process, coordinate counseling resources for students who may have character and fitness issues, and structure formative assessments to allow for regular evaluation of students throughout a course in ways that better prepare them for the Multistate Bar Examination. It all starts with our connection.

2) Talk about testing.

The bar exam is not going anywhere soon. So we all need to understand how it works, how it aligns with practice demands, and how law schools can help prepare students to succeed on it. We also all need to be invested in the current discussions on how the bar exam may change to better evaluate lawyer competence in a changing legal environment.

The three-year in-depth study of the bar exam being conducted by NCBE’s Testing Task Force concludes at the end of 2020. Information gathered from the study’s focus groups and nationwide practice analysis will help guide the bar exam of the future to ensure that it continues to test for competent entry-level legal practice in a changing profession.3 Legal educators need to engage themselves in that process to understand and contribute to it.

Also worth noting is the innovative alternative to the bar exam that exists in New Hampshire. The University of New Hampshire’s Daniel Webster Scholar Honors Program allows students to graduate without taking the traditional two-day bar exam. Webster Scholars instead take a variant of the bar exam during their last two years of law school by demonstrating their skills in simulated, clinical, and residency settings and compiling a portfolio of work.4 It may be that more options to test more contemporaneously will develop over time. As legal educators and bar examiners, we all engage in testing; sharing our different testing experiences will help all the assessments we use be better metrics of law student and bar applicant competence.

It is entirely possible to view the law school curriculum and the bar exam in a holistic way by recognizing that both are parts of a larger process. Taking a holistic view encourages legal educators to focus on helping law students develop self-directed learning and metacognitive skills … skills that will help them in law school, on the bar exam, and in practice.

Legal educators need to develop an “under the hood” understanding of the bar exam. They can do this by consulting NCBE resources, working with bar examiners, and reading available research. When they do so, they can better guide students on the areas of law to focus on and the best available resources that will help them pass the bar exam. Our law school has worked with the bar examiners to get model essay answers posted online, develop a process for applicants who did not pass the exam to review their answers, and incorporate sample MBE questions into the formative assessments used by faculty to evaluate student performance throughout a course. All this helps us connect the bar exam to what happens in law school.

3) Take a holistic view.

It is entirely possible to view the law school curriculum and the bar exam in a holistic way by recognizing that both are parts of a larger process. Taking a holistic view encourages legal educators to focus on helping law students develop self-directed learning and metacognitive skills, whereby students take responsibility for assessing their own learning—skills that will help them in law school, on the bar exam, and in practice. One of the key skills we are helping law students learn at USD School of Law is how to learn. That pays dividends in all settings.5

Here are some examples of steps we have taken at USD to help our law students succeed. We have incorporated metacognition into our work with students starting at orientation to empower students to assess their own learning throughout their law school experience. Metacognition is the ability to think about one’s own thought processes. I explain it to students as “thinking about how you think and learning how you learn.” Helping students learn not only the subject matter, but also their personal learning process and how to optimize it, is a skill that has value in law school, in bar prep, and in practice.

We have also incorporated voluntary academic reviews for all 1Ls, targeted mandatory supplemental sessions for students below certain grade thresholds, and a mandatory bar prep class for 3Ls. Faculty members have incorporated formative assessment throughout their courses, split between multiple-choice and essay formats, to combine periodic review with building test-taking skills. Our Director of Academic Excellence uses that feedback to design review sessions covering both doctrine and learning process in areas where students need additional focus. Lastly, we have scheduled sessions for students to hear from bar examiners and recently admitted bar candidates to identify character and fitness issues that commonly arise and how to address them.

In terms of the bar examination, let us, as legal educators and bar examiners, remain involved and open to whatever ideas may evolve to find ways to best track true competence for legal practice. That will require openness to thinking out of the box. For instance, alternative approaches could include grouping MBE questions by practice area so applicants do not jump from topic to topic, putting more emphasis on MPT-type skills tests, providing options for students to test on a subject area nearer in time to taking the class on that subject area (i.e., step testing as in medical licensure), and reassessing whether the restricted-time nature of the exam makes it unduly a “stopwatch test” disconnected from the deep thinking required in practice.6

Legal education and the bar exam will both be better if they are viewed as part of a continuum. For that to be so, we should try to think about the entire picture unbounded by our preexisting approaches from one side of the process or the other—so that students, in turn, can benefit from being supported through a continuous experience.

4) Better isn’t perfect, but it isn’t bad.

The harsh reality is that there will never be a perfect bar exam. Likewise, no school has developed the perfect legal education. Achieving perfect connection to practice may be impossible, there may be disagreement about which subjects to test and how, and there may be skepticism about a cut-score benchmark for minimum competence, especially when cut scores vary across jurisdictions. A continued dialogue and coordinated effort between bar examiners and law schools can, however, make the examination and application process better.

I have experienced the bar exam from two positions and have tried to think openly and creatively about it from both perspectives. The most important lesson of my experience? Working together to make the process better does, in fact, make it better. It is not easy, but coordinated efforts to improve will benefit clients, applicants, law schools, and bar examiners. Along the way, our efforts will run into roadblocks, be rejected, or just not work. That will not make them failures. The only failure is to quit trying to improve.

Bar examiners need to recognize that law schools cannot perfectly prepare applicants for any exam. Legal educators need to know that “teaching to the test” to boost bar exam results would be a foolish approach that would shortchange our students. A balanced approach will leave everyone a bit disappointed but is the best and most sustainable course.

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