Lawyer2Lawyer Spotlight: The NextGen Bar Exam

Episode Notes

Transcript

Dennis C. Prieto:

My advice to law students, first of all would be pay attention in legal research and writing. Because the skills you acquire in that class, they’re not just going to inform your performance on bar exam questions, they’ll also improve your performance in doctrinal and whatever clinical work you do, and that will help as well. It’s the acquisition of skills that we are really encouraging students to develop so they can show us on the exam.

Speaker 2:

Welcome to the award-winning podcast, Lawyer 2 Laywer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named May It Please the Court and have two books out titled How To Get Sued and The Sled, my blog. May it please. The Court is back up and running in the New year, so check it out and also be on the lookout for my new book. It’s called Bad Decisions, 10 Famous Trials that Changed History. Well, the First Bar examine was administered in oral form in Delaware Colony in 1783, and then more than a hundred years later in 1885, Massachusetts became the first state to employ a written version of theBar exam. We’ve come a long way since then, and over time, theBar examination process has become more standardized, but there’s no one test. One example of a standardized test is the Uniform Bar Examination was created, well, maybe a long time ago, but was authorized in 2011, first administered that year by Missouri and North Dakota.

It’s been since adopted by some 37 United States jurisdictions out of a possible 56, the American Bar Association. Wait a minute, 56. How did that happen? Anyway, the American Bar Association endorsed the UBE at its 2016 midyear meeting. However, some of the largest legal markets, including California and Florida and Louisiana have not yet adopted the Uniform Bar exam. So what’s next in all these standardized texts? Well, according to the National Conference of Bar Examiner’s website, the new Next Gen Bar exam is set to debut in July of 2026, and it will test a broad range of foundational lawyering skills utilizing a focused set of clearly identified fundamental legal concepts and principles needed in today’s practice of law. The exam will reflect many of the key changes that law schools are making today, building on the successes of clinical legal education programs, alternative dispute resolution programs and legal writing and analysis programs.

So will the transition from a standardized test like UBE to Next Gen be an easy one, and what can law students and faculty members expect? Well, today on Lawyer 2 Lawyer, we’re going to be discussing the next gen bar exam with one of the committee members who helped write it. We’re going to explore the specific exam. We’re going to talk about how law students and faculty can transition to preparing for the new exam and what students can expect from the exam in 2026. And to help us better understand this issue, we’re joined today by Dennis Pieto, and he’s an associate professor and reference librarian at Rutgers Law School. He is an internationally recognized expert in law student information literacy, and also publishes on bilingual English Spanish legal reference sources that has served on the National Conference of bar examiners gen Content Scope committee and is a member of the Next Gen Tasks and Rubrics Advisory Committee. Welcome to the show, Dennis.

Dennis C. Prieto:

Well, thank you very much, Craig. I’m delighted to be here.

J. Craig Williams:

Dennis is not very often, and I don’t think that we’ve ever interviewed a librarian on our podcast. So let’s get a little bit about your background and what led you to your current role as a reference library.

  Dennis C. Prieto:

Boy, goodness. Well, my career is very strange. All of our careers are all unique and idiosyncratic. I actually started in poetry writing and I went to the University of Iowa and took a master’s degree there, their creative writing program, and found myself teaching all over the world in South Correia in particular, and enjoying life, but wanting to make a little bit more than I was making as a teacher. So I went back to law school and it didn’t take me a long time to realize that practicing law was not really going to be my forte. My skill was research. I was finding the cases that the professors were embedding in the problems in ways that other people weren’t. So I decided to listen to that and instead of practice after I graduated Iowa Law in 2001, enrolled at the graduate school for Library and Information Science as it was known back then at the University of Illinois.

So I’ve had the real fortune of attending two number one ranked programs in this country. Iowa, of course was 23 at the time the law school, but the Writer’s Workshop and then Illinois Library School at the time are highly, highly ranked, and I got to see some of the interesting features of well run academic systems and thought maybe I should become a law librarian. I remember in a law school that a lot of the professors were a little bit disgruntled that they were in Iowa City, not in Chicago. A lot of the students were worried that they weren’t going to be in the top 50% of the class to get the job in Chicago, but the librarians were really happy with what they were doing and were also really, really helpful. And so that launched me towards us getting the dual credential that you need at an ABA accredited school to be a law librarian.

But at the end of library school, I was studying with Lisa Jansky Hitch Cliff, and she was a big proponent of testing information literacy, and she was letting me know and letting all of us know that these tests were coming first through A CRL and that understanding on a large scale how well students were able to use and make productive use of information systems was going to be a big question in academia in the future. And so I got to Rutgers, I started doing all kinds of other work, the legal dictionaries, and I was able to present at a couple conferences. And then the NCB just took volunteers saying, anybody who’s interested in helping with the next gen bar exam let us know. They wanted input from practitioners as well as from academics. And so I signed up and got recruited into first the content scope committee helping to define that legal research should be on theBar exam.

First of all, that took a little bit of convincing, which is a shame because law is such a super information rich career. It’s such the practice of law is so dependent upon information that it was clear to me that there were going to be problems if we don’t start tracking this. So I put together a group of law librarians. We articulated the principles and standards for law and information literacy for the American Association of law librarians. And a lot of this has really just taken off from there with people understanding that now that we have a list essentially of what we want our graduates to be able to do, we can work towards bringing content, informational, instructional content, I should say, to that audience filling a need.

J. Craig Williams:

Right. Well, that’s a really interesting background. I’ll admit that. I also went to the University of Iowa, graduated a little bit

Dennis C. Prieto:

Go Hawkeyes!

J. Craig Williams:

A little bit earlier than you 1987, and also had the opportunity to Gogo to the Iowa Writer School as a consequence of going to the law school and learn how to

Dennis C. Prieto:

Write. Oh, fantastic.

J. Craig Williams:

Yeah, bit better. So I didn’t write poetry, but certainly learned to write a little bit of fiction. Your background is really interesting, but let me give you first a little bit of bragging rights about Iowa sixth ranked public school. So public law school. So it’s not that far down the line, but it was a great education when I went and I’m really proud of it. So Dennis, let’s get into theBar exams. We started out with 50 different bar exams that drove everybody crazy. Let’s talk first about the industry and what happened with the uniform bar exam. How did that come into existence?

Dennis C. Prieto:

I’m just dealing with the leftovers of that, and again, it was an attempt to, as you noted, try to wrestle the problem of 50 different bar exams and what the next gen is really, quite frankly, I can see it as a simple updating.

J. Craig Williams:

It’s a big shift, Dennis, it’s a big shift from the UBE and even in the law schools, the big shift is that it’s also adding in practical skills.

Dennis C. Prieto:

Well, that’s really, that’s what makes it a better measure. I’m going to say first of all, but a lot of what makes it a big shift, a necessity for the big shift is that the world of practice has changed since the UBE was first introduced. And a lot of that, again, has to do with access to information, and a lot of that also has to do with accommodating the information that we have access to. If you had mentioned something like a chat GPT style simple program to the folks who were thinking about the UBE, they would’ve thought that you were stepping out of a science fiction novel, and this is where we live now. It’s a completely different world, and updating high stakes certification exams is pretty normal and pretty regular. It happens, happens a lot in a lot of other professions and medical professions in accounting.

They keep a real close eye on their certification exams and they update them regularly. The UBE had been, I don’t know that we can say that they’ve really been updated. It’d been kind of poked and prodded. It’d been added a little bit here, taken a little bit there. Some stuff has been put back in and I mean, it’s not a wholesale new approach, which really is a little bit, a little bit, to be honest, our fault, the NCBE probably should have been doing more to update than it did, but this is how these things happen.

J. Craig Williams:

Now you’re talking about the NCBE, that means the National Conference of Bar Examiners, right?

Dennis C. Prieto:

That’s right, yeah. They’re the ones who ran the UBE who run the multi-state now and who run the next gen bar exam too.

J. Craig Williams:

Who is the National Conference of Bar Examiners? Who’s on that board?

Dennis C. Prieto:

Well, the board I’m less familiar with than the people that I’ve been working there. Beth Kennedy has been doing a really fantastic job in shepherding this entire project. Bringing it to light of the NCBE, as you know, has been a pretty stalwart fixture on the legal certification scene since the 1950s.

J. Craig Williams:

Right? There’s a lot of judges in it and there’s a lot of lawyers and law professors. What’s been the reaction of the law professors to the next Gen bar exam?

Dennis C. Prieto:

All of the people that I’ve been talking to, well, first of all, there’s nobody who really likes the multi-state right now. Everybody has an issue with it, so that makes people a little more amenable to the notion of redoing the exam. Everybody also agrees that including skills is long overdue. When you think about how a lawyer interacts with the client, the client doesn’t know a pleading from any other writ. The client only knows how well was I handled. And so having a test that’s going to measure test takers abilities to resolve relationship issues and manage client issues, that’s a new thing for certification in the law. And I think it’s only an improvement

J. Craig Williams:

Is part of this new exam open book.

Dennis C. Prieto:

Well, so the library is going to be very similar to the UBE style library and the exams. You’re going to get a set of information. I’ve been trying to push people to hand out way more information, and it’s all going to be on your laptop. Now, that’s one of the easy things about the new exam is that you bring your own laptop and they will run the test on it for you, so you don’t really have to do anything in terms of professional investments that you’ve already made.

J. Craig Williams:

Now, is this multiple choice or is it essay? How does theBar exam work? Both.

Dennis C. Prieto:

It’s both. It’s both. There’s multiple choice questions and then there are essay questions. And you’re given a set of information sometimes with each essay question, sometimes to cover several essay questions, and I don’t think you’re allowed to bring anything into the exam other than your watch and yourself.

J. Craig Williams:

So what goes into redoing the exam? How do you guys pick apart the old exam? What problems did you see and how did you fix ’em?

Dennis C. Prieto:

So there were a number of problems that we had to deal with, one of which actually was simply the length. People in the NCBE thought that the length of the exam was simply too long, that by the time you’re done with it, the results you’re getting are not indicative of anything because you’ve just spent the last two days writing these exams. So there’s an exhaustion question right there. Is it fair for students? A lot of what we were really looking at was basic fairness for all students too. Is this something that is going to put an imposition on a student or is this something that everybody’s going to be able to access to? That’s another one of the reasons for making it accessible on each test taker’s laptop so that they can already have the basic access features set up and available to them. And that was another thing too.

We knew that exams are going to have to be given in different modes to accommodate a issues. I mean, all of the pieces kind of came together at the necessary time to really spur NCBE into launching a revision for the exam. And my gut tells me that what happens is that as they started launching the initial revisions to the exam way back in the early two thousands, I think was when that dates back to, they realized that it was a huge endeavor than they might’ve signed up for and began expanding the project. And what they’ve done is they have consulted literally hundreds of psychometricians. There’s a whole field where you simply translate concepts into test questions and answers, and there’s a way to measure that. It’s called psychometrics. And I got exposed to some of those folks at Illinois when I was doing my library degree there.

And part of what’s taken the project so long is to fully analyze and assess all of the problems with the old test, which was a three day test, and then trying to cut it down into a two day test, yet still add these layers of measuring skills. And what we’re doing is we’re looking at skills as the articulators for the foundational concepts and principles. So it’s not just that we’re teaching skills, we’re also teaching doctrines, civil cipro contracts, torts and whatnot. But you have to use your skills to show on the exam that you understand the doctrine.

J. Craig Williams:

Right. Well, Dennis, I need to interrupt you for a moment at this time. We’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Laywer. I’m joined by Dennis p Preto. He’s an associate professor in reference librarian Rutgers Law School. We’ve been discussing the next gen bar exam. Now Dennis, this isn’t coming out until 2026, right?

Dennis C. Prieto:

Right. Well, again, this has already been 10, 15 years of development. So yeah, 2026 I think is a outcome, is a reasonable date given the decades that have already gone into this work. And there’s already schools of states, excuse me, that have agreed to adopt the next gen exam too, most lately, Arizona as well as Kentucky, Nebraska, Iowa, Connecticut, Maryland, Missouri. I mean, they’re signing up for something that’s not happening until 2026 later, largely because these states have a history of working with the NCPE for the multi-state for the UBE, and they have faith in the project, which everybody who’s been lucky enough to be a part of the past and shares.

J. Craig Williams:

You mentioned in the articles that you’ve written about it, there’s been some committee member articles about the next gen bar exam. You mentioned that there was issue with legal academia about the difference between teaching doctrine and teaching skills, and there’s been some significant disagreement there. Can you explain what’s going on?

Dennis C. Prieto:

Well, what happens is, and wherever this happens, and this happens largely in places like academia where the outcomes are not super financially critical, but therefore mean a lot to the people who are involved. And I just saw the ends of this at my school, and we’ve kind of moved on from this as well. But what you have is you have professors fighting over resources, clinical professors saying, we need this much to keep the doors open at the clinic, right? Doctrinal professors saying, I need this much to continue with my research. And anytime you get people fighting over resources, well, that’s kind of what happens. And I think it’s happened in a different, slightly different flavor at most public law schools, right? Again, because the competition for resources is often keen, and unfortunately, there have been administrations in the past that feel the best way to get the best work out of your faculty is to make them compete for resources. So again, it has not been an issue at Rutgers for a long time, and we’ve done a lot actually there in terms of making career activities much more accessible to people as well.

J. Craig Williams:

So theBar examiners are basically telling those schools that are teaching only doctrinal classes, the standard torts and contracts and Civ Pro, the first year set of classes and so on that get with the program and start teaching skills because theBar exam’s going to leave ’em beyond. Right.

Dennis C. Prieto:

Well, in as much as theBar examiners care about any of the other schools, I suppose that’s correct. They’re really focused on the exam and they’re really focused on making sure that the exam is measuring what it’s going to be measuring. And this is because the country wants lawyers who have legal skills and we’ve never been testing skills before.

J. Craig Williams:

Tell us about one of those skills that’s going to be tested on theBar exam. Am I going to have to take a statute and apply it to a problem and figure out an issue?

Dennis C. Prieto:

Well, that would be the idea, would it not? That is the practice of law and the aspiration of the next gen exam is to be as to mimic practice as much as possible. So again, for an essay question, you might get a hypo, you’ll probably get statutory language, regulatory language cases. There may be some news stories thrown in there that may or may not reveal facts that are significant to spotting issues in the hypo, right? That’s part of research. I mean, research. So here’s part of the thing, at least from my perspective, research is not simply looking up on a screen. That’s what we think research is because that’s the activity that we end up doing in research. But while we’re doing that, effective researchers are thinking critically about the information that’s presented to them, are wondering what’s not being presented, and are already figuring out how to lessen that second quantity, how to make what’s not being presented smaller and smaller. But we want to do with the next gen bar exam is we want to take a little measure of that and see, well, in terms of the legal research question, how many of our test takers are able to effectively find first and then arrange the information in a way that makes sense in an essay exam?

J. Craig Williams:

Well, Dennis, I’ve got the quintessential law student in question for you coming up, but it’s time to take another quick break to hear a word from our sponsors. We’ll be right back. Welcome back to Lawyer 2 Laywer. I’m back with Dennis Preto. He’s the associate professor of reference librarian at Rutgers Law School, and Dennis has promised, here’s that question, what do law students need to do to get ready to take this new bar exam? Here we are talking to the guy who wrote it. So give us the clues.

Dennis C. Prieto:

Well, I didn’t write it unfortunately. I was just one of many people and project like this is a huge endeavor. But my advice to law students, first of all would be pay attention in legal research and writing, because that’s class that your performance and legal research and writing, or rather, the skills you acquire in that class, they’re not just going to inform your performance on bar exam questions, but they’ll help. They’ll also improve your performance in doctrinal and whatever clinical work you do, and that will help as well. It’s the acquisition of skills that we are really encouraging students to develop so they can show us on the exam what they know, because that’s the point of the exam. Show me what you know. So I would first say legal research and writing. Second of all, I would definitely say that you just try to get clinical experience if you can. Having actual pre-certification legal experience will show people what the practice of law is like, at least in their own clinics. And again, the next gen bar exam seeks to mimic practice. So the more often you get yourself into practice situations, the more often you find yourself doing work for practice, that’s where you’re going to acquire your skills.

J. Craig Williams:

Dennis, I can’t agree with you more. When I was at Iowa, I took legal clinic classes from Professor Barbara Schwartz and under her tutelage, I did 15 trials before a judge. I did a jury trial, I did an appellate brief to the Iowa Supreme Court. The legal clinic experience I got at school back in the late eighties was, or mid eighties rather, was unbelievable and really affected my law career. I can’t emphasize your advice enough, even as a practicing lawyer all these years.

Dennis C. Prieto:

Well, you’ll be happy to know that Barbara Storch was still there in the late nineties, and I learned all about immigration law. Well half from her, half from Bill Hing in my internship in California, but she was fantastic.

J. Craig Williams:

Well, it’s time to ask a couple of doubles advocate questions here. And it’s an old lawyer myself. I’ve been in practice almost 40 years, and I’m admitted in four states and took two bar exams. So I’ve sat for six days of bar exams and three in Iowa and three in California, and I really don’t want to hear that you’re giving away my certificates to somebody who’s only taken two days worth of theBar exam. What do you say to that?

Dennis C. Prieto:

Well, I would say, what did that third day of the exam get you?

J. Craig Williams:

The certificate.

Dennis C. Prieto:

The certificate. But I mean, if it hadn’t been there, would you have missed it?

J. Craig Williams:

No, I wouldn’t have missed that. I certainly not,

Dennis C. Prieto:

Right? It’s the same old question. People are like, well, I had to suffer and walk two miles uphill every day to go to school, and why can’t the kids do the same? And you know what? Maybe it’s good that they don’t have to do the same. Maybe it’s good that we have sidewalks, they still get to school, they still do their work. And I think what’s really important,

J. Craig Williams:

Is it really significant to be testing skills at this point? Because really having gone through three years worth of just almost purely doctrinal classes, it really does affect the way you think.

Dennis C. Prieto:

Well, it really does. And again, I’m always in favor of exercising, developing, and exercising those skills at the earliest moment possible. And for as much time as you can, I would never suggest that a student go through a law school program and not at least do some kind of clinical work.

J. Craig Williams:

I completely agree. What do you think the impact on legal education is going to be? Are we going to see a dramatic increase in practical classes in legal clinics and law schools? No.

Dennis C. Prieto:

Well, I certainly hope so. So I’ve already recommended that to my school, Rutgers and Rutgers as led the way in clinical education for many, many years. It was started there as a result of the Newark uprising. And I think that the more engaged you make the law school with the public, the more opportunity you are presenting your students with chances to make a positive impact. And so, yeah, the clinics, Newark has a real sense of ownership of the law school clinics. They do not just engaging with the society, but also giving the students a chance to work with those folks and getting experience in representation. I mean, I just don’t understand why you would go to law school and not engage in that, and that’s what the exam is aiming to measure. That’s what we want to see. We want to see the skills that people bring to the exam from the entirety of their law school career. We are not really interested in the parole evidence rule per se.

J. Craig Williams:

It doesn’t come up too many times in trial, to be honest with you. I’ve tried a lot of cases and I think I’ve only used the parole evidence rule. Not at all.

Dennis C. Prieto:

I’ll tell you this, Craig, that comment came up so many times during our initial content scope conversations. I mean, I can’t go into the details of those, but there were so many things that we pulled off of UBS that were just like, we don’t do this anymore. And so we’re really trying to make it resemble and reflect current practice.

J. Craig Williams:

Well, I think so. Sounds like it. Well, Dennis, it’s just about time to wrap up our program. So I want to ask you, what questions should I have asked you that I haven’t?

Dennis C. Prieto:

Well, actually, you’ve clearly done your research on this and you’ve asked me particularly, you asked me a few questions that were beyond me, for example. But I guess in terms of the next Gen bar exam, I would just want to emphasize that access and access to users with multiple abilities is really part of the focus as well as connecting test takers with the content of the material. And we really have paid a lot of attention on developing a tool that should be pretty seamless to take as an exam.

J. Craig Williams:

And where would our listeners go, Dennis to find out more about this new Next Gen bar exam? So

Dennis C. Prieto:

I’ve got the webpage right open right here, and you can just go to Google and Google Next Gen Bar exam. This page will come up and it is NextGen bar exam dot ncbe x.org and the NCBE National Council of Bar Examiners, they’re hosting this and you can see exactly what’s been going on, and there’s even sample questions. So if you’d like to know what kind of question you should be preparing for, I see already like 18 different question sets.

J. Craig Williams:

Great. Well, Dennis, thank you very much. It’s been a pleasure having you on the show today.

Dennis C. Prieto:

Well, the pleasure’s been mine, but thank you for asking me and happy New Year.

J. Craig Williams:

Happy New Year. Lemme tell you what I think about this topic. I taught legal writing at Chapman University, and a lot of the law students, especially when I was in law school, kind of looked down at legal writing. And to hear Dennis now say that legal writing is going to become very critical in passing theBar exam, that thrills me to no end. I learned a lot in law school. I learned a lot taking writing classes from Brian Garner after I left law school. He’s the guy who writes the Blacks legal dictionary now and teaches some very precise and wonderful writing classes for lawyers. So I think it’s very important to learn these skills. I learned a lot in law school myself, and I’ve benefited throughout my career from that education in law school. Sure, there’s a requirement to learn all the doctrinal classes, the basics that we have all taken in first year and second year.

But now is the time to get out there and learn some of the skills if you’re a student and get moving on this because you’re going to be tested on it. Anyway, that’s it for Craig’s Ran on today’s topic. Let me know what you think. If you’d like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit [email protected] or you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you watch legal Think Lawyer 2 Lawyer

Speaker 2:

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