Page 25 - Delaware Lawyer - Summer 2022

FEATURE | WHAT MAKES A GOOD LAWYER?
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“just 66% of Black law school graduates passed the bar exam on their first try.”3 In contrast, the pass rate for white can- didates was 88%.4 “Other racial groups fell in between, ranging from a 76% first-time pass rate for Latinx candidates to an 80% rate for Asian exam takers.”5 The bar exam’s negative impact on di- versity is in part correlated to predict- able disparities in resources, which are more likely to adversely impact minority candidates.6 Even after controlling for resource factors, however, candidates of color are significantly more likely to fail the bar exam than white candidates.7 This effect occurred for Black, Latinx and Asian/Pacific Islander candidates.8
The Traditional Exam Doesn’t Ensure Competence
There is no demonstrated correlation between bar passage and the ethical or competent practice of law. A study by AccessLex exploring this issue, for example, focused on the cut scores for bar passage among various states. The cut score is the score any particular state adopts on the national multistate exam for passage on that aspect of the state’s overall bar exam. The study concluded that higher cut scores do not correlate to the more ethical practice of law, but do correlate to the exclusion of minorities from the profession.9
Many thoughtful commentators have long recognized that the success- ful and ethical practice of law is not determined by how many legal rules a lawyer can retain in his or her memory, but by other competencies far more important than recall of legal doctrine. The Institute for the Advancement of the American Legal System10 identified the following core competencies in the practice of law:
• The ability to act professionally and in accordance with the rules of profes- sional conduct
• An understanding of legal processes and sources of law
• An understanding of threshold concepts in many subjects
• The ability to interpret legal materials
• The ability to interact effectively with clients
much on memorization of volumes of legal rules at a picky level of detail,”12 many lawyers have experienced the ritual of cramming for the exam for months. For two or three critical days, they may manage to hold the hundreds of picayune legal rules they have mem- orized in their brains. But people lose what they do not use, and commonly within months, if not weeks, much of what had been crammed into the can- didate’s short-term memory slips away, because the rules memorized have no application to the actual practice areas and routines of the candidate. It is thus no wonder that “MBE critics have long maintained that the exam forces can- didates to memorize hundreds of legal principles that they promptly forget after completing the test.”13 In fact, “the re- ality is that most lawyers forget relative- ly quickly most of the rules they memo- rized in order to pass the bar exam.”14 The notion that somehow the ability to briefly retain hundreds of memorized details equates to a sufficient working knowledge of fundamental legal pre- cepts is thus itself fundamentally flawed. For to the extent that “the bar claims that it tests minimum competence by testing for baseline knowledge of the substantive law, it operates on the faulty premise that memorization of the law in order to pass the bar exam equates to knowledge of the law.”15
Rote memories of legal rules evapo- rate quickly. But competencies and skills last for a professional lifetime, and grow and mature with experience. For that reason, “memorization should be re- duced or eliminated and replaced by a new emphasis on assessing fundamental methods of lawyering.”16
The current exam format also places an unrealistic and unjustified emphasis on speed. To stay on pace in answer- ing the 200 multiple choice questions on the Multistate Bar Exam, a candi- date must allocate no more than 108 seconds per question. Yet in actual
• The
• The
• The
a lawyer
• The
of client
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workload responsibly
• The ability to cope with the stresses of legal practice
• The ability to pursue self-directed learning.11
Because “current exams focus too
ability to identify legal issues ability to conduct research
ability to communicate as
ability to see the “big picture” matters
ability to manage a law-related
SUMMER 2022 DELAWARE LAWYER 23