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Proposed changes to the Indiana Bar Exam are sparking debate

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Between law school graduation and admittance to the practice of law stands the bar exam. Two long days of intense testing, coming after months of nonstop preparation, are a key piece in ultimately determining who is competent to be a lawyer.

Not surprising, changes to the exam can be viewed as significant if not monumental. The last time Indiana altered its bar exam was more than 10 years ago when the test switched from all essay to a combination of essay and multiple choice questions.

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Once again, the essay portion is the focus of a new set of changes proposed by the Indiana Board of Law Examiners.

“Our job is to ensure lawyers admitted to practice in Indiana meet a standard of minimum competence,” said board president Jon Laramore, explaining the reason behind the proposed changes. “After writing and grading the essay questions of the bar exam over many years, the board concluded we should re-examine what subjects should be tested to best measure minimum competence.”

The Indianapolis Bar Association, the only nonprofit to offer a bar exam review course, applauded the board for taking an open-minded review of the test. However, in a letter detailing its response to the proposed changes, the association raised concerns about the exam potentially losing its focus on Indiana law.

The IBA stated the value of the bar exam is that it provides the last – and for many students the first – opportunity to become competent in Indiana law. The 2001 partial shift in focus from exclusive Indiana law topics to some national law questions in the multiple choice portion of the test has diminished those opportunities, leaving Indiana more at risk for having new admittees who do not know Indiana law. By focusing more on the “national” nature of certain areas of the law, new Indiana attorneys will not have knowledge of the unique Indiana laws governing their clients, the IBA wrote.

Along with the IBA, the Indiana State Bar Association and the Marion County Bar Association offered their views of the proposed changes. These organizations are among the individuals and groups who provided feedback.

Like the IBA, the state bar association added its support to making periodic changes to the bar exam. However, it advocated that any changes be made after considering not only objective data but also emerging trends for solo and small firm lawyers.

The board has made no final decision regarding the changes, but Laramore is pleased with the feedback the board received.

“I think our proposal generated a lot of discussion,” he said. “We received a nice cross section of comments.”

Taxing concerns

The Indiana Bar Exam requires applicants to write eight essays on the first day of testing: two for the Multistate Performance Test and six for the Indiana Essay Examination. The second day is devoted to the multiple choice questions of the Multistate Bar Examination.

The board suggests altering the list of subjects from which potential questions could be drawn in the IEE section. Under the proposal, commercial law, personal property and taxation would be deleted from the list of potential topics and replaced with debtor/creditor law and employment law.

In general, the board contends the topics targeted for removal are specialized or narrow areas that attorneys either rarely encounter in their practice or consult a specialist when they do.

The two replacement subjects cover areas of law that are commonly used by practitioners, the board explains, and are topics new attorneys will most likely encounter as they begin their careers.

Both the Indianapolis Bar Association and the Indiana State Bar Association argued against deleting the taxation topic. The organizations pointed out that most lawyers will face a tax issue in whatever area of law they practice. Moreover, since many law schools are no longer requiring tax classes, aspiring Indiana attorneys do not have a foundation in this subject and may not be able to spot the tax aspect in a case.

“Keeping tax as a potential subject for the essay portion of the Indiana bar examination is necessary to encourage all law students to take at least one tax course during law school and to develop the necessary basic competency to identify tax issues and analyze legal problems from tax perspectives as well as in practical terms,” the ISBA wrote in its letter to the Board of Law Examiners.

barexam-facts.gifThe points made by the IBA and the ISBA about tax questions underscore the role the bar exam plays in the legal community. The test is not a mere formality, but rather it is an important educational tool.

Law school focuses on teaching students to think like lawyers, said TaKeena Thompson, president of the Marion County Bar Association. Studying for the bar exam shifts the concentration to the nuts and bolts of practice, learning the rules and how to apply them.

“I think overall the bar exam prepared me for practice,” Thompson said. “I think it is definitely valuable. You’re not going to remember everything, but it gives you a good foundation.”

The MCBA surveyed its members about the proposed changes to the

exam. Thompson maintains practicing attorneys should be interested in the bar exam because it is a gateway for the next generation of lawyers. As the current crop of new attorneys ascends in their careers, established attorneys need to make sure those following them have a basic understanding of the law.

Although a small number of MCBA members responded to the survey, the majority approved of the changes. They echoed the board in pointing out that tax law issues do not arise often while debtor/creditor and employment law are areas new associates most commonly practice.

National law

In addition to swapping topics in the Indiana Essay Examination, the board has suggested mixing six topics into the IEE from the Multistate Bar Exam. The proposed new subjects from which essay questions could be produced are federal constitutional law, contracts, criminal law and procedure, evidence, real property, and torts.

These topics will generate more essays that address multiple subjects, the board stated. For example, a pleading and practice question could also include torts and evidence. Expanding the possibilities to include multistate topics will also enable the board to test for minimum competence more effectively.

Stephanie Williams, a clerk for U.S. Magistrate Judge Mark Dinsmore, would like to see multistate subjects in the Indiana portion of the bar exam. A member of the Marion County Bar Association, Williams passed the bar exam in February 2013 after successfully taking the Illinois exam in February 2012.

Having the broader topics could boost the passage rate, Williams said, because test-takers could get points for answering the question in general terms, and then get additional points for adding the distinctions present in Indiana law.

From 2002 to 2012, Indiana had an average bar exam passage rate of 72 percent, according to data from the Indiana Board of Law Examiners.

The Indianapolis Bar Association, however, cautioned against the inclusion of multistate topics because it could impede new lawyers from mastering Indiana law. Multistate topics test Hoosier applicants on areas they likely will not use and lack the unique aspects of the state’s property, criminal, contract and tort laws.

“If today Indiana were deciding for the first time what its Bar Examination should cover and what its purpose is, reasonable minds could conclude that the prior Indiana model of a fully Indiana-administered Indiana-focused Exam is in the State’s, the Bar’s and the judiciary’s best interests,” the IBA wrote in its letter.

Whether the board presents the Indiana Supreme Court with any recommendations for changes is uncertain, Laramore said. Currently, the members are turning their attention to the July bar exam and the subsequent grading. Afterward, they will return to their proposed changes.

Any changes that are approved would not take effect until July 2016.•

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