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February bar exam results may indicate ‘new normal’

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The February 2017 bar exam results brought a fresh round of disappointment to the Indiana legal community and a renewed conversation about why the scores keep dropping.

Overall, the pass rate plunged to 48 percent for the February 2017 exam, the lowest since at least 2002, the last year that bar exam statistics are available on the Indiana Board of Law Examiners’ website. A total of 263 individuals took the test in February with 62 percent of first-time takers passing and only 37 percent of the repeat takers being successful.

sullivan-frank-no-robe Sulllivan

Former Indiana Supreme Court Justice Frank Sullivan speculated this may be the new normal. Applicants today need to be prepared to take the bar exam more than once.

As an example, he pointed to the Class of 2016 from Indiana University Robert H. McKinney School of Law, where he is now a professor. The overall pass rate for the July exam was 70 percent, but that rose to about 82 percent when the unsuccessful class members retook the exam this February.

failure-sidebar-chart.gifNationally, conventional wisdom holds that the increasing number of failing scores is correlated to the quality of students being admitted to law schools. As higher-qualified students decide not to pursue a J.D. because of the struggling job market in the legal profession, law schools are having to dip lower into the applicant pool to maintain their class sizes. Students with lower grade point averages and LSAT scores who would have been denied admittance 10 years ago are now being accepted.

However, Sullivan is not convinced. A professor at IU McKinney for the past five years, he has not noticed any decline in the quality of his students. He has seen no difference in the ability of the students or their level of preparation during his tenure in the classroom.

“I think the bar admissions either made the exam harder or are grading it harder,” he said.

Questions about the bar exam itself are not new.

Cynthia Gillard, attorney at Warrick & Boyn LLP in Elkhart, wondered if the Multistate Bar Exam could be tripping up many test takers. She was a member of the Indiana Bar Examination Assessment Task Force that evaluated the state’s bar exam and recommended the weight given to the MBE be reduced from 50 percent to 35 percent.

The Multistate Bar Exam follows a multiple-choice format and that, as Gillard pointed out, is not a style of test that law students commonly face. Test takers must choose the best answer, which may not technically be the right answer, and they cannot explain their reasoning as they are able to when answering the essay questions.

Gillard, who served on the Board of Law Examiners from 2000 to 2010, remembered staying for three days each spring and summer in an Indianapolis hotel to grade hundreds of essays. Writing an essay can illustrate someone’s thought process, and even if the answer is not correct, it can still show competency.

ted waggoner Waggoner

Managing partner Ted Waggoner of Peterson Waggoner & Perkins LLP in Rochester pointed to a potential disconnect between the law school curriculum and the bar exam. Clinics and hands-on training are now a regular part of a law student’s education, but Waggoner raised the question of whether the experiential activities are eating into the teaching of the theoretical concepts and doctrinal material that are still the focus of the bar exam.

Noting the consequences of flunking the bar exam and then having to figure out how to pay off student loan debt, he has taken to carefully counseling those who are thinking of enrolling in law school.

Waggoner, who was chair of the Indiana State Bar Association’s 2015 Legal Education Conclave, recommends that individuals take a break after completing their bachelor’s degree and work for a few years before deciding whether to study law. If they do enroll and then find themselves near the bottom of the class, given the economic reality, they might want to consider dropping out.

Graduating from law school does not guarantee employment. Gillard noted the purpose of the bar exam is to protect the public by ensuring the people licensed to practice are of good moral character, high ethical standards and have a reasonable understanding of the law.

Still, as Sullivan pointed out, the difference between passing and failing the bar can be one point. IU McKinney has stepped up efforts to assist students in getting ready and navigating the two-day test.

“The passing rate on the last three bar exams have been deeply disconcerting to me and very surprising,” he said. “We are all concerned and trying to make sure the graduates are as prepared as they can be.”•

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  • Grades do not equal good lawyers.
    It is time that we stop evaluating our future colleagues by their grades and class rank. Waiting a couple of years after college to apply? For what reason Ted? Neurologically, there is no increase in IQ. While we mature through experience, there is no guarantee we will mature MORE by not pursuing a passionate career as soon as we are able. Drop out when you are at the bottom of your class?! Please don't. Learning disabilities are often undiagnosed. This is common knowledge in education and the medical profession. And learning disabilities are in fact indicators often of extraordinary creativity and intelligence. And this I dare say is what our profession is starving for. I look forward to the day where we learn innovation and where job postings encourage the bottom of the class to apply. In fact, if you challenged the Socratic method or why the Multistate exists, you may in fact be someone I want to practice with. Welcome. And please stay. Academic success in law school does not translate to relationship building or healthy, happy lawyers.
  • Survey would be futile
    I like the idea of discovering how many hours were invested compared to passage rates, however, the responses would be fundamentally skewed. For the examinee would be inclined to inflate the actual hours spent studying for the bar exam due to the fact that in order for the survey to have any use, results would need tone correlated to the survey responses. This would lead an examinee to believe, albeit, unjustly that an examinee might take the hours of preparation into consideration while evaluating an applicants exam. It would be in my humble opinion essentially impossible to get accurate responses in regards to the actual hours of bar preparation each applicant actually invested. Interestingly, I just took the February 2017 bar exam, and luckily passed, and I would say that the bar exam is by no stretch of the imagination easy! The MBE is quite tricky insofar as the wording of the questions. Moreover, you prepare hours and hours for corporations, and low and behold it's not even tested. Ultimately, I agree (naturally since I passed) that the bar exam is an appropriate safe guard for the public, but I have no desire to take another exam. My final thought would be that, considering that extremely low passage rate of repeat takers, I feel as though the examiner is aware of, and hold the applicant to a higher expectation. Of course it could also simply be the applicant is just not capable of passing a bar exam. It's just astonishing how low the repeat taker passage rate it. Best!
  • The Bar Exam Has Been Getting Easier
    The exam is about being prepared and not freaking out. I saw examinees in all three of my tests literally "crying" and hair in shambles. Maybe I have become more observant over the years, but it seems like a larger percentage of examinees freak out on day 1 and do not recover for day 2. The new format of 175 out of 200 questions (February 2017 Indiana) was much easier than the MBE Format in July 2015 (I took the Florida Bar - no waiver allowed). I also thought having more FRCP questions made the exam easier compared to my first bar exam in July 2003 (New York Exam). But, you’re an experienced attorney, it should be easier for you. Right? Sure, my practice has focused on the often tested area of United States patent law - that is great preparation for the bar exam! Florida does a survey at the end of the exam to see how many hours people put towards studying for the exam. I did not receive a similar survey for Indiana. Rather than comparing statistical scores, I would be more interested in seeing the survey results over the last 5 years. Time invested vs. Passage Rate would probably be most revealing.
  • Good
    The bar exam is supposed to be a bulwark that protects the public and ensures a certain base level of quality and responsibility. It takes discipline to study for and pass the bar, which is akin to the discipline necessary to practice law correctly. The bar should be brutal. It's still not hard enough.

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