The bar exam: a Q&A with the examiners

The bar exam begins today.

Forty-one aspiring members of the Vermont bar will be there.  I’ll be there too, as a proctor.  That’s a good thing.  I have a better chance of skiing Paradise from top to bottom without falling than I do of passing the bar exam.  And I say that knowing full well that I don’t know how to ski.

These days, Vermont’s bar exam is much different than many of you remember.  In 2016, Vermont switched to the Uniform Bar Exam (“UBE”).  For an overview of the UBE, check out this post from last summer.

Today, I’m happy to be able to share additional information about the exam, courtesy of Keith Kasper and Andy Strauss.  Keith chairs the Board of Bar Examiners (“BBE”) and is a regular member of the #fiveforfriday Honor Roll in Legal Ethics.  Andy is Vermont’s Licensing Counsel and is responsible for the administration of the bar exam.  They were kind enough to take time out from exam prep to answer questions.

All mistakes are mine.

MK:  In legal ethics, the very first rule requires lawyers to provide clients with competent representation. To some degree, is that what the UBE is intended to do? Help us to identify lawyers who meet (or exceed) a minimal level of competence?  That is, the UBE is more than testing who can remember the most from law school, right?

Keith:  The UBE is a measure to assure that those applicants we certify for licensure are qualified to practice law. Unfortunately, a law school degree is not sufficient. While not part of the UBE, the MPRE (Multistate Professional Responsibility Exam) is utilized by most states to assure that bar applicants have studied not only the substantive aspects of the law but the ethical requirements of being a lawyer. On the other hand, the UBE evaluates the core legal knowledge of the applicants as to the most important aspects of a modern law practice.  It undergoes periodic review and updating to reflect the modern practice of law in this country. One of the most recent changes since you and I took the bar exam is to add federal civil procedure to the Multistate Bar Exam (“MBE”) portion of the UBE, as procedural aspects of the practice of law are also of great importance to the competent practice of law.

MK:  Competence is key!  So, conflicts of interest are a big thing in my world.  I know that some in the state were “conflicted” about the change from the so-called “Vermont-specific essays” to the written portions of the UBE.  Can you share the BBE’s thinking on the change?  Was it a tough decision? And, any thoughts on how it has worked out?

 Keith: It was a tough decision, one that took years to ultimately make. However, I would phrase the decision in terms of competence. The Board ultimately decided that professional test developers would do a better job drafting bar exam questions more consistently year over year than us part-time amateurs were able to do. We did lose the ability to test on Vermont specific items, but we addressed this issue by requiring new lawyers to take 15 hours of CLE in the basics of Vermont practice and procedure. In addition, we replaced the old pre-admission clerkship requirement with a new one year post admission mentorship program to try to push new lawyers out into the legal community to experience as wide an array of Vermont law and practice as pragmatically possible, and to give new lawyers a mentor they can go to at almost any point in their career with questions as to Vermont law and practice. So, while I do miss drafting bar exam questions, (Anybody out there remember a Workers’ Compensation/Tort bar exam question?) I think the bar, bar applicants and the public are better served with these new admission requirements.

MK Note: the CLE & mentorship requirements that Keith mentioned are here.

MK:  I speak and blog often on attorney wellness. Wellness includes stress management.   When I took the bar exam, there was a thunderstorm that knocked out the power.  Talk about stressful!  I know that the Board and Andy work hard to ensure that the testing environment is as conducive to success as possible.  Are there any challenges with making an otherwise stressful event as stress-free as possible?

Andy: One challenge is that we rely on an outside vendor to provide the software for those examinees who want to take the exam by laptop.  It can be stressful when one or two (or more) people are having difficulty getting set up with the software right before the exam.  But the software package is good, and the vendor is responsive on exam day and provides us with an on-site technology person.

MK:  I remember “Barmageddon” in the summer of 2015.  Fortunately, we didn’t run into any serious problems here.  But I worried for some of the examinees as the uploads stalled.

Andy: One thing I’ve noticed is that, although the examinees are involved in a stressful exam situation, they are for the most part polite and friendly on exam day.  Not having people get upset or angry or impatient goes a long way towards a smooth exam administration.

The other thing that is important is for myself and the other staff helping to put on the exam to recognize that the examinees are full of stress and to be as friendly, helpful, patient, and understanding as possible.  I think we do a great job at that.  I also take that approach in all of my interactions with examinees during the application process.

MK: Very interesting point Andy. I love that, at the bar exam, you W.I.N your 3-feet of influence.  I covered 4 or 5 exams and proctored many others. I too was often struck by how nice our examinees are.  Practicing lawyers should take note! Rule 3.5(d)!  Anyhow, as fortunate as we’ve been to enjoy such high-quality examinees, not all states are the same.  I know that folks in your job spend significant time & resources ferreting out cheaters.  What are a few of the craziest cheating stories you’ve heard?

Andy: To be honest, I haven’t really heard any crazy stories!  Sometimes I read about spy-like technology, like camera glasses and speaker earrings, but that’s really about it.

MK:  Dang. I was hoping you’d busted a twin taking it for her sister. But I suppose it’s good that you’ve not had to deal with anyone as audacious as my favorite bar exam fraudster: Mike Ross

So, speaking of technology.  A lot of lawyers might not know that examinees can now use their laptops for the essays.  About how many take advantage of that option? Can I assume the graders love it? Also, do you think we’ll see a day where the multiple-choice segment of the exam is digital or electronic

Andy: Almost all examinees take it on a laptop nowadays.  And I don’t think we’re that far from seeing the MBE (multiple choice) being taken electronically.  The ethics exam that the National Conference of Bar Examiners administers is about to be given electronically, so the MBE will probably follow not long after.

Here, unlike the cheating tools I mentioned, technology is definitely good.  I’m sure the graders are happy not to be trying to decipher handwriting as often as they used to, and I wouldn’t mind not having to sharpen 200 pencils before every exam.

MK:  The bar exam: the last bastion of the #2 pencil!

Next, I asked the same question of both Andy & Keith but had them answer separately and only to me.

For Keith:  You are an experienced practitioner. You’ve served on many VBA and Court projects and committees designed to improve the profession.  What’s something that the exam doesn’t test – in fact that may be impossible to test – that’s critical to a successful career as a lawyer?

Keith: On the national level one area that has been discussed would be client interview skills. My understanding is that they test patient evaluation skills for new doctors for the Doctor licensing exams. I think the issue is that we have so many more lawyers taking the bar exam then doctor’s taking their licensing exam that a nationwide evaluation of one on one people skills is just not practical to add to the bar exam.  However, people skills and listening to your client are vital to many areas of legal practice. (When one of my firm founding partners, John Fitzpatrick, took the bar exam back in 1958, there was an oral component to the bar exam in VT.) I personally have suggested to the National Conference of Bar Examiners adding administrative law to the mix of areas to be tested given how many lawyers deal with administrative law issues. One thing that has changed on the bar exam since you and I took it is adding a performance exam portion to the testing protocol. Essentially the applicant is given a file folder of factual materials and copies of all the law they need to know to complete the project (from the fictional state of Franklin). The applicant needs to complete the project (drafting a memo, for example) and determine what information is relevant and what is not to address the issue and apply the relevant law correctly to the project and understand what law is relevant to the issue. This test a different skill set from taking a multiple-choice test and writing a law school type essay answer which had previously been the focus of the bar exam. Again, the bar exam continues to evolve over time. The MPRE is being given on tablets this year with the thought that ultimately the National Conference would move to providing specially dedicated computers for applicants to take the bar exam. A long way from the old days of handwritten essay exams in blue books. Given my horrendous handwriting it is a miracle I passed!

For Andy: You have a varied background: private practice, criminal prosecutor, in-house counsel to a government agency. In your experience, what’s something that the bar exam doesn’t test – indeed, might be impossible to test – that is critical to success as a lawyer?

Andy:  I think the bar exam is good at testing legal analysis skills: discerning key facts, applying the law to those facts.  These skills are essential to success as a lawyer.  But unless you are an appellate lawyer, much if not most of your time will be spent doing other things.  As a prior litigator, I see the two most important “other things” as (1) communicating with clients, attorneys, and judges, and (2) gathering facts (i.e. depositions, client interviews, document review, etc.).  The MPT (the performance section of the exam) only grazes the surface of these.  So, if we are using the bar exam to ensure minimal professional competence, we need to figure out a way to test these areas.

That said, my personal experience from law school leads me to think that people are not getting much training in these areas during their legal education.  So, ensuring that new attorneys can communicate effectively and successfully gather facts likely requires a much larger change in how we train and evaluate new lawyers.

MK: Each of you has mentioned technology.  Has anyone ever suggested the bar exam should be open book? I mean, really, these days, our mobile devices allow us to look up answers on demand. So, it’s not like a lawyer will ever have to do something by memory.

Keith:  The open book issue has been raised in the past, but not recently. Not sure what the answer to that question is from a testing metrics perspective. I think the bigger problem with mobile devices is cheating: Is this your work or not? The National Conference usually has an eye-opening seminar every year on the new devices and methods of cheating. These days, we do not allow you to even bring your own watch or pencils into the testing room. A few years ago, someone’s wife took the bar exam for him in California after he had had multiple failures. I think they both got disbarred.

MK:  You are right!  The Los Angeles Times has the story here.  I admit, I had to look it up. I didn’t know it by memory.  Maybe she’s the one who inspired the creators of Mike Ross!

Several years ago, I was an associate examiner.  One of the essay questions was on professional responsibility.  Believe it or not, I was assigned to grade answers to that question.  True story: one person wrote something like: “I don’t know. I’d call Mike Kennedy.”    That must be worth something, right??

Keith:  That is definitely worth at least one point! It is impossible to know all the law. Knowing who to ask if you don’t know the answer is almost as good as knowing the answer itself.

 MK:  Great point, Keith. And one that goes to the value of the new mentorship program.  Okay, final question for each of you, a question related to attorney wellness.

Andy – you race Dragon Boats.  Not only “race,” you were in the world championships! I assume there won’t be drummers in the exam tomorrow.  Are there similarities in preparing for a dragon boat race and, say, the bar exam or an important hearing?

Andy: Now that’s an interesting question!  Here’s one thought:  Going into big performance challenges, such as a competition or a bar exam or a trial, there can be a rush of nervousness and even fear of failure.  I think that at those points, it is extremely important to consciously recognize how hard you have worked to prepare for the event and consciously put your trust in that training.  The nervousness may still be there, but your focus will be elsewhere.

And no, no drummers at the exam.  Just the silent ticking of the countdown clock!

MK:  Ha! If only Poe had written about the bar examKeith – you’re a huge fan of The Grateful Dead.  A few weeks from now, you’ll be grading bar exams.  Which Dead show will be playing on your sound system?

Keith: Philadelphia 1987 (Place and year I graduated from law school.) Favorite song from that 3-night stand of concerts, and my theme song for when I was studying for the VT bar exam later that year: “I Need a Miracle Every Day!”

 MK:  Don’t we all!  Here’s the video.  Great stuff guys!  Thank you for taking the time, and thanks for all you do for Vermont’s legal profession!