How Changes to the California Bar Examination Have Impacted Law School Education

Starting with the July 2018 administration of the California Bar Examination, the format of the  exam changed in several ways.  Those changes have impacted what California law schools have required of their students to complete their legal education.  The primary change was to reduce the duration of the examination from three days, as had been the case since 1980, to two days.  Although this decision was generally greeted with enthusiasm by bar applicants, it may be working to their detriment and to the detriment of the practice of law in California.

In the three-day examination, the written portion consisted of  six one-hour essays and two three-hour practical skills-based Performance Tests (PT’s”). The remaining six hours of the exam was devoted to 200 multiple choice questions (the Multi-State Bar Examination or “MBE”).  In the new two-day examination format, the written portion consists of five one-hour essay questions and only one 90-minute PT. The remaining six hours of the exam consists of the same 200 question MBE.   The three-day exam was weighted 65% for the written portion, and 35% for the MBE.  The two-day exam is weighted 50% for the written portion, and 50% for the MBE.

Under the three-day format, the two PT’s, which assessed legal research, writing, and practical skills, were weighted 26% of the total score.  Given the large emphasis on the PT’s, and the generally well recognized decline in writing and analytical skills of students attending  law schools, many California law schools required students to take at least one class focusing on the further development of  practical skills training and written legal analysis.  Such a class was typically offered in the last year of law school.  The focus of the class was to prepare graduating students for responding to the PT portion of the bar examination, and to develop their skills to enter the legal profession and  to  competently perform the legal work that would be expected of them as new lawyers.  Professors would teach their students how to prepare legal documents which new lawyers would typically be expected to perform, such as objective memoranda, points and authorities, demand letters, counseling letters, and briefs in anticipation of trial or an ADR proceeding. Typically, one of the PT’s would have been an objective assignment, and the other would be persuasive.

In the current two-day format, the PT portion of the examination was reduced to 14% from 26% of the total score. While the types of assignments are similar, they are much less demanding, given their 90-minute length.   As a result of the two-day examination placing far less emphasis on the  PT’s and the practical skills testing and assessment associated therewith, and placing more emphasis on the MBE questions, law schools in California have begun to place less emphasis on the legal writing courses in their curriculum.   Often, those schools will now provide writing courses as electives rather than required courses.  They also utilize more multiple-choice questions in examinations, rather than the essays that were the primary way that law professors tested their students.  While this approach might be helpful to applicants in dealing with the MBE, it doesn’t further the goals of fostering better communication skills, legal writing and analysis. The writing courses served a dual purpose, they taught law students how to think and write like lawyers, and as a bonus helped them prepare for the bar examination. Emphasis on multiple choice questions is not particularly helpful in developing the skills that new lawyers need to practice law. Essay and PT questions, not multiple choice questions,  require one to figure out the right answer, analyze it, support it and come to a reasoned conclusion.   Some of the most common complaints expressed today by experienced lawyers and judges about entering lawyers are the deficiencies in their legal writing and analysis skills.  If the current trend of reducing the amount of legal writing  in law schools continues, those complaints will most assuredly increase.

California’s approach in reducing the importance of practical skills assessment is also contrary to what is occurring throughout other US states and jurisdictions.  California was the first state to use the PT as part of its bar examination.  The PT arose out of an experimental portion of the July 1980 bar examination.  During that examination, all bar applicants took the same examination for two and a half days of the three-day exam.  On the other half day, the Committee of Bar Examiners gave applicants different types of questions to see if there was a better way to assess the skills of entering California lawyers.  The types of experimental questions included watching videos of court proceedings and answering what evidentiary objections and rulings should be made; conducting oral assessments; and the three-hour PT.  After analyzing the results of those different testing methods, the PT was selected as the best new way to test applicants on the examination, and it was added in 1983.     Soon thereafter the National Conference of Bar Examiners, which develops the MBE, began developing the 90-minute Multi-State Performance Test (“MPT”) and offering that test to different states and jurisdictions.  Today, 48 states and jurisdictions use either the MPT or their own state- developed PT on their bar examinations.  Typically jurisdictions use two different PT’s on their bar examinations.   Only California and Pennsylvania currently use a single PT.

As the results of recent administrations of the California Bar Examination have declined significantly, in particular since the change to the two-day bar examination, several law schools have begun questioning the current format of California’s examination. Law schools are seeing a negative impact in having only one 90-minute PT on the California Bar Examination and are asking whether it would be best to again include two PT’s.  Bar examinations can be motivators to encourage law schools to provide practical skills, legal writing and analysis training for their students to better help prepare them to enter the legal profession.  While the goal of a two-day exam seemed beneficial at the time, the unintended consequences of focusing legal education away from practical skills, legal writing and analysis training, and more toward multiple choice questions, has had in many people’s opinions a negative impact on the overall quality of today’s law school education, and in the preparation of law students to enter the legal profession.

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