Bar Exam Woes

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Bar Exam Woes

05/25/2017

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

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Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law and with me as always is my compatriot Elie Mystal.

Elie Mystal: Pretty suicidal today, Joe. How are you?

Joe Patrice: I understand that the death of Roger Ailes has hit you pretty hard, but hopefully you will be able to persevere.

So welcome back to the show. We have had a couple of weeks here off and now we are ready to jump in and have a conversation about the next step for a lot of law students who are just graduating this week.

But first, I guess Elie is going to complain for a few minutes and then we will move past that and talk about the law.

Elie Mystal: I mean I started off this morning fully prepared to celebrate the death of Roger Ailes. What an amazing time in this country when a person who is responsible for so much bad finally goes down, but unfortunately, as soon as I opened my computer I saw that Betty Shelby, the cop in Oklahoma who shot Terence Crutcher in the back on a highway, in broad daylight, while being filmed by a helicopter, walked, she was acquitted of manslaughter.

I would like this segment to be somewhat funny and somewhat —

Joe Patrice: No, you don’t. You rarely do.

Elie Mystal: I have nothing — I have nothing to say. I don’t know how this is allowed to keep happening, to use a Trumpism.

Joe Patrice: Well, I mean I think it’s very easy and that’s a thing that I noticed too. I mean there was some — a legal expert sent out a press release about it, and I think the analysis that he gives is right, and that’s actually what’s kind of troubling about it.

His analysis was that when you really think about the nature of the criminal justice system and convictions requiring beyond a reasonable doubt, you put yourself in a position where reasonable doubt becomes a fairly easy standard for these folks to keep meeting, because we have, rightly or wrongly, probably rightly the idea that policing is a dangerous job. There is a position by which they can always utilize the argument that they had a reasonable suspicion that it was dangerous and that’s what justified what they did. The problem is of course, taken to its logical conclusions that ultimately says anyone ever in the position of being a police officer has the ability to shoot on instinct, which is a terrifying level, but it’s the logical conclusion of the way in which we have set everything up.

Elie Mystal: Juries and especially White juries do not apply the reasonable part of the standard to the equation. They have to be reasonably afraid of their life and there is no effort to apply any reasonable man standard.

Joe Patrice: No, nor should they, it’s the opposite of that. The reasonable is that there has to be some reasonable doubt that it wasn’t —

Elie Mystal: No, you are talking about reasonable doubt in terms of conviction.

Joe Patrice: Yes.

Elie Mystal: I am saying that the standard for police officers is supposed to be, they are reasonably afraid for their life for whatever, and I am saying that the juries refuse to apply a reasonableness standard to the cops. It’s okay for the cops to be unreasonably afraid and then shoot people to death.

Joe Patrice: Right. I mean, that’s certainly a take. I just don’t — I don’t necessarily know that’s true. I think that the actual problem is more fundamental than that, that when you create a situation where a job is inherently dangerous by its nature, then you create a situation where reasonable doubt will always flow the direction of justifying violent reaction, which is a more fundamental problem than anything that you are talking about.

I think it’s a more fundamental problem with the way in which we deal with misconduct in jobs that we have determined are inherently dangerous and that there should be some other way in which we look at those to avoid that, because so long as we continue to apply the same rules to that, it will always end up this way, is more where I am pointing out.

Elie Mystal: Well, we are not going to solve it today and I will just try to not get shot tomorrow.

Joe Patrice: Yes, good thing. Good thing to try to do. Always be careful. You have the luxury of not having to come into the office, which is always a scary —

Elie Mystal: Increases my survivability by not having to leave my home.

(00:05:01)

Joe Patrice: Well, all right. Well, let’s continue this discussion in a minute. First, let’s take a quick break to hear from some sponsor stuff and we will be right back.

Christopher Anderson: I bet you didn’t think about running a business when you were in law school, but now that you have your own practice, you are constantly looking for tips on marketing, accounting, practice management, and so much more. I am Christopher Anderson and you can get expert business advice on my podcast, The Un-Billable Hour, found on legaltalknetwork.com, iTunes or wherever you listen to podcasts.

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Joe Patrice: Okay, we are back. Elie presumably has gotten a beer. Well, so we are going to move now to the bar exam. So whatever you want to —

Elie Mystal: Something else that tried to kill me.

Joe Patrice: Yes. So how ever you want to think about this, the worst test ever, the last exam you will ever take, for most of you, whatever euphemism you want to have for it, the bar exam is going to be the last major hurdle in the quest to become a lawyer. And for those of you who have graduated and are practicing lawyers you know it and probably think back on it with some level of fear and trepidation.

Others who listen to us, folks who are in undergrad, pre-law folks, of which we know we have several listeners from our Decision Series a couple weeks ago, or if you are in law school now and just haven’t quite reached the point where you are going to have to worry about this exam, we thought we would talk a little bit about how the bar exam operates, what’s going on with it, kind of what’s up with the bar exam.

So our guest today is James Mullen from Law School HQ, which is a new site. It used to be Bar Exam Stats, which was a great resource of everything quantitative you might want to know about the bar exam. So welcome to the show James.

James Mullen: Thank you very much Joe for having me. I appreciate it.

Joe Patrice: So Law School HQ, you have kind of moved on from just focusing on the bar exam and kind of have a broader vision now.

James Mullen: Yeah, yeah. So about five or six months ago I was taking a look at the website and as much fun as it is studying the bar exam results and the trends and everything that are going on, you start to realize there is a larger picture at play. You have the ABA statistics that talk about the entrance, as well as the job statistics that are going on, and you start realizing there is a larger picture that you want to start capturing.

So we figured that we would expand the website, start to take some of that data that the ABA is so graciously putting up on their website and start analyzing it and really seeing what’s going on.

Joe Patrice: So the bar exam, it’s obviously different from state to state, as each of these entities have their own way of figuring out how they are going to license attorneys, but it might be kind of coming together. There is this UBE thing.

James Mullen: Yeah, yeah, absolutely. My hope is that we ultimately get to a National UBE. I think that New York, which had their first UBE last July, so the second one was this February, I think they did it right. You have adoption of the Uniform Bar Exam, which is a national exam that has three Multistate Essay Exams, a Multistate Performance Test, and they adopt the 200 questions for the Multistate Bar Exam, the MBE portion.

And then what I love about New York is they added a 50 question subset that’s held on a different date that focuses on just New York law. So you are able to have the advantage of taking the national exam, you can try to get into other states, but New York still is able to kind of maintain their area, ensuring that attorneys are going into the state and being able to practice law under New York Law.

Elie Mystal: Even while you agree with the move towards a more universal and national bar exam, do you still support different states kind of barring attorneys differently? Do you still think that there is a good reason why I should have to get barred in New Jersey even if I am already barred in New York?

James Mullen: Yes and no. So I was thinking about this a couple of days ago. We are one of the oldest professions in the world, right?

Elie Mystal: Not the oldest, but yes.

James Mullen: One of the oldest. There is one other out there, right? Back in the day, in early, I don’t know, 1700s, 1800s, you had these different jurisdictions with different forms of government and information was very difficult to get a hold of, so you wanted to have people that only knew New York Law, only knew Mississippi Law, only knew California Law as a way to make sure that they are competent to practice.

(00:09:57)

Versus today’s age where you can do research across the board, even though the different laws in the state might be specific to that state, we now have access through Westlaw, LexisNexis, Google Scholar, Justia, all of the different websites that make this information freely available. It’s really transformed how law is practiced. So now we should be moving towards a national exam, because at the end of the day as attorneys, we are taught to take a massive amount of information and solve a problem and distill it down, and that’s what we can do no matter what jurisdiction we are in.

Elie Mystal: I think it’s also important in terms of job placement for attorneys that the more states that they are barred in and to the extent that you can be kind of barred nationally, the more opportunities you have to get jobs in places that potentially have a real under-service of lawyers, we have a lot of attorneys who are kind of excited and eager to work in big law on the coast or in major markets, but we have a real lack of service in some of the tertiary and certainly the rural markets. National accreditation is one way to combat that problem.

James Mullen: Absolutely. Completely agree.

Joe Patrice: Yeah. Now, so this has been a trend that’s not been universal, but it is starting to pick up steam. How many states now are utilizing this Uniform Bar Exam in some form or another?

James Mullen: I believe at last count it was about 23, but when you look at the overall population it was I think closer to a third of people in the US are now taking the UBE; New York being the biggest at about 10,000 a year or so of the 50 or so people that take it every year.

Joe Patrice: So we are moving towards a national accreditation as things go, but they are going to be states, I assume there’s going to be some states that are a little more protective of their parochial control over their own licensing and who will be holdouts, but are there any like aggressive holdout states out there that you just don’t think are going to move until their own bar exam is pulled from their cold dead hands.

James Mullen: I would probably put California up there, which is where I am from. We have I think something like over 200,000 active lawyers at any given time. So we just went from three days down to two, and the other state which I think would be — I believe it’s Louisiana, because I think they are the only state that does not offer the MBE because they have what is Common Law I believe.

Joe Patrice: I mean when I was younger they were doing — they were still doing the Napoleonic Code down there.

So my next question about California, you said that they moved from three days to two, that was a big deal when they did that, first of all because it moved them more into line with, not only what other states do, but basic human decency of not making somebody do this for three straight days. But like at the time I certainly thought that this was a sign that California was starting to wise up that they couldn’t keep doing their crazy shenanigans and had to join the rest of polite society, but you are saying that ultimately they may not have given up their iron grip.

James Mullen: Well, yeah, and the reason for that is because one of the things that you are always taught in law school, at least here in California, is that California is different when it comes to law, because we test on a lot of subjects that are California specific, like matrimonial law, like community property and stuff like that, which I anticipate that the California Bar is going to want to continue to maintain.

They are continuing to do just stuff that’s not typically covered on the UBE. So at least for some time, unless they come up with a similar solution that would be to New York’s, I just anticipate that they want to continue offering something that’s going to be very California specific, because they have so many differences between that and what the national law is.

Elie Mystal: Can you talk a little bit about why so many people are terrible at passing the California Bar. For those who haven’t been following along on Above the Lab, the February results were recently released, February, obviously in case you don’t know, the passage rate for February is always a little bit worse than it is for July. But the passage rate for February 2017 in California was 34.5%, which is embarrassing. Scores in states around the country, passage rates I should say in states around the country seem to be on a downward trend, why do you think that is?

(00:14:54)

James Mullen: So I think we are actually seeing something that was set up several years ago. So if you notice, if you look at the statistics, like the entrance statistics that the ABA publishes, the average I think LSAT rate and GPA rates, they have slightly gone down a little bit in recent years, and I think you are starting to see that transpire over into the bar exam side of things.

Also, when you think about it, it used to be back when I joined law school, back in 2007, right before the market crashed, you are looking at a lot of attorneys making a lot of money, and huge, huge salaries, and so you go to law school thinking, you are going to win the race, you are going to make it big. And I think what we are seeing is more and more students are looking at this and going, okay, it’s going to cost me anywhere between $150,000 and $200,000 in debt and I am not guaranteed a salary of at least $160,000 a year, is it worth taking that risk going to law school? And I think you are starting to see some people who are saying it would be better to go get a different type of education through either a Master’s degree or something else.

Elie Mystal: Look, I am a big believer that this is the brain drain finally catching up with the legal profession. As you rightly point out, LSAT scores have been going down and while I don’t believe that the LSAT is a particularly good predictor on how good of a lawyer you are going to be, I think it’s an excellent predictor of how good you are at taking tests.

And so I think it is not at all surprising that as LSAT scores takedown, bar passage rates will also takedown, and it really goes back to the schools who are willing to admit these people with low LSAT scores not being able to overcome kind of poor test taking, poor ability to take tests and yet taking these people’s money for three years anyway.

James Mullen: Yeah. Actually Elie, I actually have a couple of statistics up on my screen right now about Charlotte and Miami, just some of the things that I — I started taking a look at a couple of days ago at what did entrance statistics in like the matriculants, to the full-time program look like back in 2010-2011 versus what it looks like today. It’s pretty interesting. In some cases you are seeing anywhere between a 30% to 50% drop at some schools, as far as who is now going into the full-time program.

Elie Mystal: Yeah. Look, law schools have been talking recently about how their application numbers are finally starting to take up. But the brain drain I think hits on both sides and so on the one hand, like you are pointing out, I think you are getting people with, again, worse test taking skills, applying to and matriculating into law schools.

On the other hand, as you have alluded to, people with kind of the best scores and the best test takers are thinking about other things that they can do with their career besides pursuing a career in law.

Joe Patrice: Absolutely.

Joe Patrice: So one thing that, talking about — sticking with this discussion of how law schools have changed, I liked the way Elie, you made the connection back to the LSAT, because I think it’s important to make the connection between the bar exam and that LSAT, as opposed to the intervening years of law school, because as we all know, the bar exam has nothing to do with anything you learn in those three years of law school.

Now, on that front, is that a problem, a more fundamental problem that needs to be addressed, like whether it’s that the bar exam should more closely track what law school does or law school should more closely track a bar prep course, either way, what possible professional licensing exists other than the bar exam where people are tested on something very different from anything they have actually learned? It would be like a medical licensing exam having nothing to do with human medicine. It would be like the veterinarian’s exam you have to pass to get your doctor’s license.

But is that something that we should look at, like fundamentally a curriculum change, one way or the other of whether the bar exam changes or law school changes, or is it not a huge deal that these two things don’t seem to match up in any way, for either of you?

James Mullen: So I think yes. I think there does need to be kind of this fundamental shift of, how we test, what are we testing on, and I think this gets into a much larger issue than just what the bar exam is, like what the pass rate is. It’s not just because of what the pass rate is, but again, it goes back to the availability of information.

So you have people who are in law school today that are thinking, I want to go out and I want to change the world. I want to be a public interest lawyer, and I am going to go take on all of this debt, which certainly acts as a deterrent on whether or not they even go to law school. And then they are going and being tested about something that they don’t necessarily want to be practicing. And so they want to go into a specific field, maybe serve an underprivileged area. I would love to see more defense lawyers.

(00:20:10)

And I don’t know, if the bar was testing, like doing something similar to what Washington does, where they have a — it’s a separate program from being a full-blown lawyer that you can go be, I can’t remember what it’s called, like a law clerk or something else.

Joe Patrice: Yeah, I can’t remember it either.

James Mullen: Yeah, where you focus specifically on certain tasks that an attorney doesn’t necessarily have to cover, so in that case you are testing specific areas that an individual could serve in like a public interest capacity and not have to worry about being tested through the full program, being worried about taking on $150,000 in debt. I think that’s the direction it should be going, because we don’t have to be generalists anymore, we are all going into our different little niches and everything.

Elie Mystal: As is my want, I will put most of the blame on the schools. I think that look, it is ridiculous to me that a school is going to charge you hundreds of thousands of dollars and take three years of your time and somehow not prepare you to take the entrance exam to the profession. And so while I don’t disagree with what James is saying about what that entrance exam should be, the fact is it’s been the entrance exam for a very, very long time.

Schools have ample opportunity to know that at the end of the road their students are going to be required to take this test, not preparing their students to succeed at that test is a complete failure on behalf of the schools.

Obviously, I am always about the two-track system. There are certain schools that are out there that are not training people to pass the bar and all of their students are going to pass the bar anyway. We know the schools, you are going to go to that school, you are going to take your bar prep course and things are going to be fine for you.

But for schools that are not in that tier, for schools that have a significant chance of half of their class not passing the bar, a third of their class not passing the bar, that’s on the school to bring their students up to the level, so at the very least after three years you can pass the freaking entrance exam.

Joe Patrice: Yeah. I mean it does seem as though a professional school would have some closer tie to making sure people can practice the profession, and part of this is the schools, but part of this also is who becomes a legal academic, not all the time are they people who have actually practiced.

I mean we have created over the last several years a track toward becoming a legal academic that often involves going to clerk for a couple of years and then coming back, and congratulations, you are an assistant professor somewhere. And to the extent that that’s the legal academy, not universally by any stretch, but if that’s the legal academy, of a large swath of the legal academy, then you have got people who actually aren’t in a position to do much about telling you how actual practice works.

Elie Mystal: Right, but they are in a position to tell you how to pass the freaking bar.

Joe Patrice: I mean potentially. I mean, I don’t know. We all know what happened to Sullivan when she had to take the California bar out there.

Elie Mystal: Why do we always have to drag her name through the proverbial mud?

Joe Patrice: I actually view it very differently. I think she is an excellent example because, not to throw her through the mud, I think that’s an argument for why California’s bar is completely ridiculous and absolutely needs to be blown up, because the idea that a Supreme Court litigator who was in charge of Stanford Law School couldn’t pass a bar exam was a sign, not a problem with her, but a problem with the bar exam.

James Mullen: And again, you are supposed to be testing the minimum level of competence for an attorney, that’s the entrance, that’s the core of it, not necessarily screening out people who can’t pass a test.

Joe Patrice: Yeah. It’s a good way of putting it. This is supposed to be the minimum.

Speaking of minimums, the one other story over the last few weeks that I kind of wanted to chat about I guess was Mississippi had also an abysmal passage rate in February, also down in the 30 percentile. We get kind of California, because they have this bar exam that is unruly and is intended to be as difficult as possible for people who might be Stanford Law Deans, but Mississippi, what’s going on there, is that a situation of a difficult bar exam or is that a situation of declining standards, or is it kind of a bellwether for some of these issues that we have talked about?

(00:24:47)

James Mullen: This is something where I am still surprised that there was such a massive decline. Like I remember taking a look into this several weeks ago and really trying to nail down, like did they do anything that changed from their exam, did they adopt the Uniform Bar Exam that suddenly increased the minimum level of competence for an attorney in that state, and honestly, I have had nothing which is really surprising. So this is what I am supposed to be tracking.

Joe Patrice: Yeah, it seemed like just such a weird outlier, and I received a lot of correspondence after I wrote about this from people who both supported my conclusions and who were upset about them. But even the people who were upset about them mostly, the only thing they could say was they wanted to defend Ole Miss Law School and said, our numbers were pretty good. But even if that’s the case, that means everybody else’s numbers were bad, and that’s still something worth noting that a bunch of people are taking this exam and for no reason anyone can discern doing terribly on it.

Elie Mystal: And I guess I will throw this here near the end, it’s slightly akimbo point, but as a general rule I am not disturbed that the bar is hard, that’s the best way of putting it. I actually do think there should be a barrier to entry into this profession and that barrier should somehow try to assess an attorney’s minimum competence. And I think we all agree that perhaps the current bar does not do a very good job of that and perhaps law schools aren’t doing a very good job of that and what have you.

But you don’t see a lot of people crying when people can’t pass their medical boards. You see a lot of people saying, oh great, I am glad that I am not going to have that doctor. And I do think that while law is not — kind of does not empower you to go into people’s bodies and take things out, it certainly gives you a lot of power over your clients’ lives, and so I do think that having a relatively difficult, relatively serious minimum requirement entrance exam is a good thing, and I am not immediately off put by low passage rate numbers. Does that make sense?

Joe Patrice: But there’s science involved in one of them and not in the other and I think that’s a big difference. Like I was a litigator, I didn’t really actually —

Elie Mystal: Not everybody is a surgeon. I mean there’s not a whole lot of science involved in the guy that’s giving you your Viagra pills. Come on, I think that obviously doctors have more power over your life, but lawyers have quite a bit of power over their clients’ lives and I think that having strong requirements for them is not a bad thing.

James Mullen: Absolutely.

Elie Mystal: Not necessarily these requirements, but some strong requirements.

James Mullen: Yeah Elie, I am going to agree with you and just say, I mean yeah, I agree that there needs to be a level of — a standard, that requires that you pass it. The question is, is the standard that’s in place today the right standard given where technology is, given the readily available access to information, given how everybody is now going into more of a niche practice instead of a generalist role, which is what it used to be anywhere between 50 and 60 years ago? Like look at the shepardizing and how much technology has made that change. Like was it ten years ago you used to have to go look at the books and you bill hours for that. Now you don’t have to do that anymore.

Elie Mystal: That’s a great point.

Joe Patrice: I mean it’s different and people, while there may be some generalists in the world and there should be an exam for them, if you are going to become a commercial real estate lawyer, there’s a whole bunch of stuff you don’t really need to be tested on. It’s really not that important for you to know the nuances of hearsay and all those exceptions.

Elie Mystal: 13.

Joe Patrice: All right. Well, this was great. Thank you so much James for joining us and talking about the bar. For all of you listening, who are about to begin your bar prep courses and take the bar exam, those who are about to die, I salute you sort of thing. Good luck. Thanks for listening.

And if you aren’t subscribed to the podcast already, you should do that through various podcasts and scripting services, and you should like it and review it and do all those things that make it more visible to other possible listeners.

You should read Above the Law obviously, but you should also follow us on Twitter. I am @JosephPatrice, Elie is @ElieNYC. You should get the Legal Talk Network App so you can listen to, not only our show, but all the other Legal Talk Network programs. I think that’s it.

So any parting words there Elie.

Elie Mystal: No, thanks for listening. Honestly, I just hope I am alive for the next one.

Joe Patrice: Right. Well, the next one should be an exciting one, so people would want to be around for our next one, because we have exciting announcements for that one.

Elie Mystal: Am I getting fired?

Joe Patrice: No, no, no, quite the opposite.

Elie Mystal: Because nobody told me about the announcement.

Joe Patrice: It’s going to be like your day — no, well you did, you are the one who told me about it, but anyway, the point is we will address that next time, all right.

Elie Mystal: Bye guys.

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