Changes to Legal Education and the California Bar Examination since 1980

Changes to Legal Education and the California Bar Examination since 1980

Over the past 35+ years education provided in law schools in California, as well as throughout the United States, has changed in many significant ways.  Some of the change has been as a result of demands from the legal profession, while other changes have been the result of the modifications to the subject matter and format of the California Bar Examination.

Demands of the Profession

Law schools in the 1980s provided very little practical skill training.  There were some basic skills classes that many law students took, such as trial practice, moot court and appellate advocacy.  Entering lawyers really had little idea how to actually practice law, and certainly little, if any, knowledge about how to set up their own law practice.  Very few new lawyers hung out their own shingle.  Jobs were obtained at small to mid-sized firms, or in the public service arena as district attorneys, public defenders or county counsel.  In most of those jobs significant mentoring was provided by others in the firm or office from experienced attorneys, legal secretaries and office managers.   There were many opportunities to ask questions, seek guidance or receive mentoring. Experienced attorneys throughout the local legal community were often very generous with their time to help a new attorney entering the profession.

Today’s law students require much greater practical-skills training while in law school, and much more is expected of them by their prospective employers.  Additionally, as the job market became difficult, more and more entering attorneys started opening their own offices.  Consequently, law schools began to offer many more classes designed to teach law students how to actually become, and act like, lawyers.  The types of classes that began to be offered either were totally practical skills-based classes, or incorporated skills training into the curriculum.  For instance, classes like “How to Open Your Own Law Office,” and “Advanced Trial Practice” (where law students learned how to deal with expert witnesses in depositions and at trial) became, and still are, very popular with law students.

Law-school-run clinics also became much more attractive to students for a variety of reasons.  Not only do clinical opportunities provide great benefits to the underserved in our communities who are facing issues like unlawful evictions or elder abuse, but students in the law clinics are able to actually represent these underserved individuals by providing legal counseling, or even making court appearances, as Certified Law Students under the supervision of licensed attorneys under the State Bar’s Practical Training of Law Students Program.  Becoming a certified law student not only provides great insight into the practice of law, but also enhances new lawyers in their job search following admission to practice by demonstrating that they have acquired important practical skills training.

Changes to the California Bar Examination.  Given the importance, and frankly difficulty, in passing the California Bar Examination as quickly as possible, law school education has had to adapt and alter its curriculum to not only prepare students for the entry of practice, but to prepare their students for success on the bar examination.   These changes in curriculum have also often been necessitated by the changes in the subjects covered on the bar examination, the different types of questions offered on the bar examination, and the relative weighting of the different components of the bar examination.

In 1980 the California Bar Examination was transitioning from a 2 ½-day bar examination to a 3-day bar examination.  In 1980 the Committee of Bar Examiners experimented with a variety of different types of questions on the California Bar Examination.  All of the applicants had the same questions on 2 ½ days of the examination, but the other half day was comprised of different types of assessment tools.   The basic examination that everyone took was the same 200 multiple choice (“MBE”) questions that still exist, and there werenine one-hour essay questions. The experimental half-day session included numerous different assessments and what we now know as the performance test.   Of all the experimental types of questions, the ones that performed the best, and which were determined by the test experts to be the most valid and reliable, were theperformance tests.  In the performance tests, the applicants were provided with a file and a library, as they are today, and asked to perform a lawyering task using only the factual and legal materials provided.

Introduction of the performance test component to the California Bar Examination had a significant impact on the law school curriculum.  Prior to the performance test, the bar examination was weighted 35% MBE and 65% for the essays.  Once the performance test was introduced the weighting changed to 35% MBE, 39% essay and 26% performance test.  Consequently, law schools began to offer instruction on how to answer a performance test question.

At the time, law schools were not able to offer bar examination preparation classes for credit, so to get around this restriction law schools began offering classes entitled “Advanced Legal Writing,” or something similar, to provide instruction to their students about how to tackle a performance test type question.  Ultimately, the accreditation rules were modified to permit these types courses, recognizing not only how important they were to success on the bar examination, but that the performance tests tested practical skills important for entering lawyers, and the advanced legal writing types of courses were actually teaching the students how to perform skills that newly-admitted lawyers would be expected to perform.  The stated purpose of all bar examinations throughout the United States is to assess whether a particular applicant possesses the minimum competence to become a first-year lawyer in the particular state, and it was determined that the performance test was an excellent assessment tool for making those determinations.

Beginning with the July 2017 California Bar Examination, another significant change occurred which has, and will continue to have, a significant impact on legal education and how law students prepare for the bar examination.  The former three-day bar examination has now been shortened to two days, and to achieve that shorter period, the Committee of Bar Examiners had to make major changes to the format of the examination, as well as the weighting of the relative components of the exam.  Instead of having the 200-question MBE, six essays and two three-hour performance tests, the current examination will have the 200-question MBE, five one-hour essays, and just one 90-minute performance test, and will be weighted 50% MBE, 37% essay and 13% performance test.  To many, including the author of this article, this was a very poor decision by the Committee of Bar Examiners.  The two 180-minute performance tests on the examination led to greater instruction in law schools about the importance of writing, practical skills analysis, and problem solving.  Lessening the importance of the performance test and increasing the relative weighting of the 200-question MBE multiple choice to 50% of the overall score of the California Bar Examination sends a direct message to the law schools, and California bar examination applicants, that knowledge of black letter law is more important than practical skills training, writing and problem solving.  Consequently, a number of law schools in California have already modified their curriculum in response to the new bar examination format, and reduced or eliminated what used to be the advanced legal writing courses where law students were taught how to prepare the documents, and perform the tasks, previously tested and assessed by the performance tests.

Presently, the California Supreme Court, which is responsible for the admission of lawyers in California, has asked The State Bar of California and the Committee of Bar Examiners to study the California Bar Examination and make recommendations concerning the minimum passing score on the examination (the “cut score”) as well as the content and format of the examination.  The cut score was studied, hearings held, recommendations were made, and ultimately the Supreme Court decided that for the time being the minimum passing score of 1440 out of 2000 be retained.  California has the second highest bar exam cut score in the nation, second only to Delaware.  Some states have recently lowered their respective cut score due to significant declines in the overall passing rates on bar examination throughout the country.  The California ABA law schools, the Cal Bar Accredited law schools, Committees of the California legislature, and the State Bar Board of Trustees recommended that the Supreme Court consider lowering the score to a score more in line with other states, and make it retroactive to the July 2017 bar examination, but the Supreme Court recently declined to reduce California’s cut score, and indicated it would consider any such modification at a later time.

The studies on the content and format of the California Bar Examination are ongoing, and could result in lessening the number of subjects tested on the bar examination.  Currently there are 13 subjects tested, and possible reductions would include the topics of remedies, wills and succession, trusts and community property.  Should any reduction of the subjects tested on the examination be made, then certainly most, if not all, California law schools will assess their respective curriculum and modify the courses required for graduation accordingly.