New research from the Institute for the Advancement of the American Legal System questions whether the current form of the bar exam satisfies what it claims to do — proving the minimum competency of attorneys to practice law.
Despite the exam’s century-plus existence, there’s never been an agreed-upon and evidence-based definition of minimum competence, according to the study. Without that definition, it’s impossible to know whether the bar is a valid measurement of competence, or “an artificial barrier to entry.” IAALS’s “Building a Better Bar: Capturing Minimum Competency” claims to take a step toward reshaping the lawyer licensing system using an definition of minimum competency.
Identifying Building Blocks
The study, a joint venture between IAALS and Ohio State University’s Moritz College of Law, used 50 research groups from around the country made of senior and junior attorneys to identify the skills necessary for practice and make recommendations for adapting the bar exam to better serve its purported purpose. The report suggests that minimum competency consists of 12 interlocking “building blocks” that allow new lawyers to practice effectively.
The study also recommends requiring law students to perform closely monitored externship work to help prepare them for the profession and claims that written exams aren’t well-suited to assessing minimum competence — and that multiple choice questions in particular should be used “sparingly.”
“This is a conversation that the entire legal profession needs to be engaging in,” said Logan Cornett, director of research at IAALS and researcher in the project. While many in the courts and profession still believe the bar offers protection to the public from incompetent lawyers, “that belief has little concrete evidence to support it.”
Conventional views of minimum competence imagine a “bucket” of memorized legal rules and a few skills that new lawyers use to “scoop and serve.” This is a view the current bar reflects, according to the study. The current bar tests the ability to recall a large number of specific rules, their application, analysis of materials present in a case file and writing under tight time constraints.
However, the report suggests that minimum competency is more complex.
The “unequivocal” findings of the project showed that virtually no new lawyers rely on memory for anything, Cornett said. Competent lawyers take time and research everything before coming to a conclusion or deciding strategy.