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1 May 2020

Survey Says: Big Changes Could Be Coming to the Bar Exam

Over the last decade, both the practice of law and the legal industry have undergone a transformation. This has led many lawyers to voice their concerns that the skills they believe are needed to excel in the practice of law are neither taught in law school nor tested on the bar exam.

The organization responsible for producing the bar exam, The National Conference of Bar Examiners (NCBE), has apparently heard these concerns. In January 2018, it began a three-year study to ensure that the bar exam tests the knowledge, skills and abilities newly licensed lawyers need to provide “competent entry-level legal practice in a changing profession.” The launch of the survey coincided with record lows in bar passage rates in 2018.

As part of that study, the NCBE recently released the findings of a 2019 survey about the tasks newly licensed lawyers typically perform and the knowledge, skills and abilities necessary to effectively accomplish them. Nearly 15,000 lawyers took the survey. About 3,000 of them were newly licensed, meaning they had been practicing law for three years or less.

The survey’s findings, which were broken down into tasks, knowledge areas, skills and technology, are expected to help shape a revamped bar exam.

A More Research-Focused Bar Exam?

To determine the tasks newly licensed lawyers typically perform (and their importance), the survey asked respondents to rate several tasks on their frequency and how critical each one is to the practice of law.

Unsurprisingly, the most commonly performed critical tasks were research-based. These common tasks included identifying legal, factual and evidentiary issues in client matters; researching and interpreting court opinions, statutes and regulations; and evaluating the strengths and weaknesses of client matters.

The tasks least likely to be performed and least critical included representing clients in habeas corpus or eminent domain proceedings, establishing and maintaining client trust accounts, participating in efforts to change statutes and drafting constitutional amendments.

Based on these results, future bar exams could put more emphasis on test takers’ abilities to research and report their findings, and less on their abilities to recall memorized principles of law.

Respondents’ Most Important Knowledge Areas Were Probably on Their First-Year Class Schedule In Law School

The survey asked respondents to rate dozens of knowledge areas on how important they are to newly licensed attorneys’ legal practices.

The areas with the highest ratings read like an excerpt from most law students’ 1L class schedules: civil procedure, contracts law, rules of evidence, legal research and rules of professional responsibility.

The lowest-rated knowledge areas were niche areas of law that few newly licensed lawyers are likely to practice—transportation, admiralty, bioethics, sports and entertainment, and public utility law.

Critical Skills Were Focused on Practicing Law, Not Building a Legal Practice

Newly licensed lawyers were also asked to rate three dozen skills, abilities and other characteristics (SAOs) on how critical they are to their legal practices. The other lawyers surveyed rated those SAOs based on the newly licensed lawyers they have or had direct experience with.

The SAOs with the highest ratings were predictable: reading and written comprehension, critical thinking, written expression, integrity/honesty and issue identification.

Interestingly though, the SAOs viewed as least critical happen to be ones that correspond with building and managing a legal practice. They include leadership, instructing/mentoring, strategic planning, networking and business development, and social consciousness/community involvement.

These findings raise two issues. First, some SAOs, like integrity/honesty, are harder to test for than others, such as written expression and issue identification. Second, some of the SAOs that respondents considered least critical to their practices are ones that lawyers must develop, like networking and business development, to build a profitable and sustainable legal practice. It remains to be seen whether the NCBE will eventually test for those SAOs despite survey respondents not acknowledging their importance.

“What Did You Think About the LexisNexis® Part of the Exam?”

The final part of the survey focused on two dozen technology items. Respondents rated the items on how proficient they thought newly licensed lawyers had to be with them.

The highest rated items were those which allow lawyers to do their jobs, such as word processing software, research software and platforms, communications software, desktop publishing software and document storage software.

Again, the lowest rated technology items were ones related to building and managing a legal practice, such as financial planning, website content management, data analytics and tax prep software.

According to the NCBE, these findings support “the appropriateness of having examinees interact with electronic research software as part of completing a performance test.” As a result, bar exam takers could one day be tested on their ability to use online legal research services to find answers to legal questions.

A New Bar Exam is Likely on the Horizon

In the coming years, law school graduates may face a revamped bar exam, shaped by the results of this survey, that focuses more on the practical tasks, knowledge areas, skills and technologies that lawyers have told the NCBE are necessary for new lawyers to master.

This new exam may finally put to rest the longstanding criticism that the bar exam does not test law school grads on what they really need to know in order to thrive in their early years of practicing law.