Study commission advises Indiana adopt Uniform Bar Exam

Finding the Indiana Bar Exam places a “cognitive overload” on examinees, the special commission convened a year ago to study and recommend changes to the test is suggesting the Indiana Supreme Court reduce the number of subjects tested either by cutting the topics on the Indiana Essay Examination or by switching to the Uniform Bar Examination.

The Study Commission on the Future of the Indiana Bar Exam completed its report Dec. 11 and has submitted it to the Supreme Court. Concerns over declining pass rates prompted the Supreme Court to assemble the commission to review the state’s admissions test.

In total, the commission made eight recommendations. The recommendations included keeping the passing score at 264 and creating an automatic review process for applicants who fail the bar by five points or less. Also, while the commission strongly advocated for the adoption of the UBE, it made the alternative proposition that the number of subjects tested in the Indiana essay section be reduced.

However, the commission members were not unanimous in their support of Indiana moving to the national bar exam. Three members wrote separately, expressing concern that Hoosiers would lose control over determining minimum competency standards if the state adopted the UBE.

Chaired by retired Indiana Chief Justice Randall Shepard and co-chaired by Indiana Court of Appeals Chief Judge Nancy Vaidik, the 14-member commission met monthly throughout 2019 and discussed bar admissions and examinations with a variety of experts from across the country. In addition, the commission solicited comments from the Indiana attorneys, bar associations, law school faculty and law students.

The commission found applicants to the Indiana bar exam are having to study and prepare to be tested on significantly more topics than particularly their counterparts in states that rely on the Uniform Bar Examination. This, according to the commission, is causing a “cognitive overload” and putting Indiana examinees at a disadvantage.

Currently, Indiana tests on seven topics in the Multistate Bar Exam portion, the six-hour, 200-question multiple choice exam, and another 11 potential topics on the Indiana essay portion. Consequently, examinees in the Hoosier state are required to study 18 distinct topics when preparing for the bar exam.

In contrast, applicants taking the UBE need to study only five additional topics when preparing for the Multistate Essay Examination portion. As a result, examinees in UBE jurisdictions are being tested on a total of 12 separate subjects, six less than Indiana bar exam takers.

The commission is now advocating that Indiana decrease the number of topics for which bar examinees have to prepare. Chopping the number of testing subjects would reduce the “cognitive overload” and could improve bar passage rates. Moreover, the commission found no evidence that the increased number of topics better determines if an applicant is competent to practice law.

Joining 36 other states and adopting the UBE, the commission pointed out, will automatically reduce the subjects tested to 12. Already Indiana incorporates two portions of the UBE into its bar exam – the Multistate Bar Exam and the Multistate Performance Test, where applicants are presented with hypothetical facts and asked to write a letter, memorandum or brief applying the law to the facts. Therefore, transitioning to the UBE would require that Indiana just swap its own essay portion with the Multistate Essay Examination.

The three commission members opposing the switch to the UBE were Wells Circuit Judge Kenton Kiracofe and attorneys Yvette LaPlante of LaPlante LLP in Evansville and John Maley, partner at Barnes & Thornburg LLP. In addition to Indiana relinquishing some of its ability to determine bar admission, the trio was also concerned that adopting the UBE would result in Indiana lawyers not being as well-versed in Indiana law.

The majority acknowledged that if the UBE is adopted, Indiana should take an additional step to ensure that those admitted to practice in the state are familiar with the local laws. It recommended that bar exam applicants be required to complete either a course, a test or combination of the two that focuses solely on Indiana state law.

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