Why I'm a Hypocrite

So the other night I popped into a nice downtown restaurant to say hello to the bartender there. He was a year behind me in law school, and was a buddy of a guy who shared this house with me my 3L year. He's smart, kind, and personable. He was active with the legal clinic and I read about one of his cases in the paper sometime after I graduated. I remember thinking, that's a good guy, and he's a lawyer with a conscience, doing really good work.

But he didn't pass the bar exam, not the first time, or the second, or the third, and so he's still a bartender. We talked about this briefly when I popped in to see him. He was bitter and angry about it. "You can do so much good with a law degree," he said, "but I can't get around that damn exam."

Now I know people from my law school who haven't passed the bar exam and some of them I think, "Thank heavens, and no wonder." But this guy isn't one of those people. He's bright, and conscientious. He SHOULD be a lawyer. I imagine whatever anxiety or mental barrier kept him from passing the first time intensified the second time and was crippling the third time. I think he's given up, and the profession is the poorer for it.

Now I have thought from the beginning that the bar exam is ridiculous. It doesn't seem to test for the practical skills of lawyering, and everyone knows that whatever substantive knowledge you've crammed into your head for the sole purpose of taking the exam will be gone almost immediately after taking it. I understand, vaguely, the rationale for some basic "bar" to keep chumps from bilking clients, but I do not believe the one we use -- a multiple choice exam designed to trick the unwary, for heaven's sake, accompanied by overly broad essay questions with unclear scoring criteria -- is narrowly tailored to effect such purpose. Sure, passing the bar is a hurdle that requires time management, self-knowledge, discipline, preparation, etc., and perhaps those are skills that will serve a lawyer well in practice. But planning a wedding or running a marathon are important life lessons that teach valuable lessons and skills that might serve someone well professionally. I'm not sure the bar exam is any more relevant to practice than those challenges.

And I've done nothing since passing the bar, other than drafting a long letter to the Board of Bar Examiners that I never sent, to effect any change. When I saw the bartender who could be a talented and compassionate lawyer I felt ashamed of myself.

I'm not an apologist for laziness or incompetence or dim bulbs. I don't want them admitted to practice any more than anyone else. Trust me when I say this is not the case with this guy. We have a filter that doesn't work, and the only ones who benefit from it are Bar Bri and perhaps a guild of lawyers who don't want additional competition. Those of us who've gotten to the other side should think about the fence that separates us from people who want to use their law degree, and whether it is too high.

Comments

[Slice]

The bar exam is a complete farce. Why the hell I can still remember the difference between "scorching" and "charring" for purposes of what constituted arson back in the day is beyond me. (By the way, "scorching" only involves minor surface damage, such as paint blistering, hence no arson. "Charring" involves the actual destruction of the surface of the structure, thus arson. Or vice versa. Who the hell cares.) Can't say that useless piece of knowledge has wowed any of my clients.

Oh and I loved this question on the multiple choice part of the exam: "One afternoon, Bobby Burglar hops a fence and breaks into the home of Victor Victim. Blah blah blah, blah blah blah, steals some stuff, runs away. Bobby Burglar is guilty of a) theft, b) theft and mayhem, c) mayhem, or d) none of the above.

The answer, of course, is d, none of the above. Why? Because in order to be guilty of theft back in the day, you had to steal the stuff AT NIGHT. Thus, Bobby Burglar's activities in THE AFTERNOON do not constitute theft. Cripes.

The Multistate Bar Exam is probably the biggest piece of crap ever devised. It's completely useless and has zero practical value for those hoping to get a law license. I said 3 summers ago when I was studying for the bar exam that if state bar examiners were truly concerned about only admitting those attorneys that were competent and were knowledgeable about that state's particular laws and rules, make the bar exam two or three days long, all essays. Each and every subject matter is fair game. Then at least you have people focusing on the actual, substantive laws of a particular state instead of this crap that can be sent through a scantron machine and pump out an applicant's score in seconds.

Oh, but of course this would be extra work for our high and mighty bar examiners, grading all these extra essays and putting time and thought into who should become licensed and who shouldn't. Please.

I also have a smart, compassionate and talented friend who has not managed to pass the bar exam (yet.) She's got an unconventional mind, and claims she's never tested well (though she managed to do well enough on the SAT and LSAT to get into a great undergrad school and law school). I think she's the kind of person who we need practicing law, particularly where she wants to go, which is to work with criminal defendants or low income victims who would otherwise be unrepresented.

Even though I'm not an attorney, I've often thought that the bar doesn't test the skills it takes to be an effective lawyer, given the breadth of the profession and the nitpicky details of the exam.

[Hondo]

I agree with you 100%. In my opinion, the sole purpose of the bar exam is to regulate the supply of lawyers in order to keep the billing rates up. I have gone up against some truly horrible and incompetent lawyers who passed the bar on their first try. I've also known some really good lawyers who had to take the bar 2 or 3 times.

Do you have any idea how scary this is for those of us who are still 2Ls and (probably more so) 3Ls? It's downright terrifying. And depressing. What about doing something else with a law degree? I don't want to be tending bar. Please, God: No.

[Bill Altreuter]

The only people I know who never passed the bar exam are the people who gave up on it. In NY it is a bear (slightly less than a 50% pass rate, if I am not mistaken) but perseverance pays off for the perseverant. I know plenty of people who passed right off and are terrible lawyers and terrible human beings, and I know a few that hung on like grim death, took it again, and again, and again and are now excellent lawyers who do good work for their clients. The bar is a terrible filter, and it may be that a filter is unnecessary.

For whatever it is worth, in Scandinavia one need not be a member of the bar to practice law. Those that do have more career options available: ritzier firms, civil service, the judiciary), but lots of people have practices that service everyday legal needs with only a degree, or, sometimes, with just training in someone else's' office. Those who are admitted tend to look down on these lawyers, but they must be capable enough-- the market would drive them out otherwise, wouldn't you think?

[qm]

I always thought that the idea of the bar exam was kind of weird, being from a country where we don't have it. Isn't law school a high enough bar to see whether you know what you need to know?

In Aus we have a kind of work experience program as our admission process - you work as a clerk for a year articled to a senior lawyer, get your marks and police record scrutinised, a reference from your principal and you are away.

[Glib Gurl]

To the person who's freaking out as a 2L, as someone who just took the bar, my biggest piece of advice is this: RELAX. I freaked out all summer long. (Just check my blog . . . it's chock full of tales about migraines, stress-induced digestion issues, etc.) The hype surrounding the exam was far worse than the exam itself. (Note that I'm still waiting to find out if I passed ;)

To the Scheherazade - I agree with most of your comments in the linked article. I wonder, though: do you think it's possible to go to BIGLAW and not be morally bankrupt?

Alternative careers do exist for those who do not pass the bar. There are many government employees who have a law degree but did not either take or pass the bar. Legal publishers such as West and Lexis also higher law school graduates who are not admitted.

Too many people who do not pass the bar judge their self-worth on the exam. There is no correlation between the two. The states believe that some hoop is required (though if you go to law school in Wisconsin and graduate, you can practice there without having to jump through this particular hoop). So, we have to jump.

I've known many bright and talented people who could not pass the NY exam (the pass rate is about 70% for first time takers). Some of the brightest attorneys that I know took the exam more than once. Whether to keep trying is a difficult choice each individual has to make.

[Carolyn Elefant]

I was surprised to learn from Hillary Clinton's book, Living History, that she failed the DC Bar (but pass Arkansas). I think that had bearing on Mrs. Clinton's decision to follow Bill to Arkansas and work there - and as a result, she was able to help him become president (I am not a big HC fan but no doubt Bill Clinton could have done it without her). So not passing a bar can change the course of history in ways grander than we could ever imagine.

[Yeoman Lawyer]

For what it is worth, at lesat in some states, bar exams do test weather a person who will be out in the public, representing themselves as capable of representing clients, knows the law of their state.

Passing law school is hardly a test of that. Truth be known, law school is not nearly as hard as law students believe it is. My undergraduate degree was in a hard science and was so much more difficult, at the Bachelor level, as to make law school a cakewalk in comparision. In that course of study, for example, we had two seperate classes in which it was annonced right off the professors would fail 50% by design every year, and that the course could only be taken twice.

In some areas it probably does not matter, but in litigation, and areas of law important to a state, the entering lawyers actually need to know what the local law is. Only a bar exam will do that.

Finally, if a person repeatedly fails the bar exam, it probably indicates that in a tight spot before trial, or some similarly tense event in the law, a simliar result will occur. I'm many years (14) out of law school now but I can recall a student who irritated me no end by never worrying about anything or studying. However, in retrospect he demonstrated what his career has proven, he's so calm that nothing worries him, and he's a good lawyer. Conversely, one fellow I knew who failed is so nervous that he continues (now having passed the bar) to be on the verge of a breakdown every time he gets into court.

This is not to say that bar exams are foolproof. Far from it. However, in an area in which a bad lawyer can do real damage, and taking into account we have not kept the same system that other common law systems have, ie., requiring lawyers to article, it is probably necessary.

If a person really wants to eliminate something unnecessary in this field, elminate law school. Graduating from an ABA approved law school was unnecessary in most places up until recently. A person could simply read the law. Lots of great lawyers had never been to law school, and if that silly requirement were wiped out today, I'd submit a lot of us lawyers would rapidly be replaced by our paralegals, who'd pass the bar readily.

[Isaac Laquedem]

If the bar exam truly measures whether a person will be a competent lawyer, then lawyers should be required to retake it every five years or so, to show that they are still competent.

[bryan]

i wonder if anyone has ever tried to correlate scores on the bar exam with things like malpractice suits. i'd be curious to know if the test is any kind of a predictor of anything.

[Yeoman Lawyer]

Isaac has a good point, I must admit. Of course, if we did that, I suppose we'd have to retest all the professions that must undergo a licensing test, such as, in my state, engineers, geologists, barbers, etc. Not that this is a bad idea either.

[Robert]

I graduated a top 50 law school 2 years ago and have not yet taken the bar. After graduating I spent months making $7.50 an hour, sending my resume out, and not getting the good paying job I had anticipated. The only thing I accomplished was damaging my credit. I realized it would probably be a good idea to get my finances in order before taking the test. So, I became a cross country truck driver and am still doing that just to keep up with my 80K+ in loans. The costs of taking the bar and the review courses are virtually impossible for me to cover at this point and I have no plans on taking it any time soon.

I've already resigned myself to the fact that I'm screwed and it's my own fault. However, I too once believed that a law degree "has many uses". I was told that repeatedly before I paid tens of thousands of dollars to get the degree. Now the same people are telling me that I am "very difficult to place". I may not be a lawyer but I've been around enough of them to know what that means. The degree is useless on its own and completing it gives you no skills that are useful without becoming esquire. My plan now is to go back to school, get a library and information sciences degree, and become a law librarian.

[noway]

" said 3 summers ago when I was studying for the bar exam that if state bar examiners were truly concerned about only admitting those attorneys that were competent and were knowledgeable about that state's particular laws and rules, make the bar exam two or three days long, all essays."

Yea, they have that in louisiana

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