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Aspiring attorneys across the country are taking the bar exam this week—a test critics have long said falls short in assessing the skills lawyers actually need.

Skeptics charge that the bar tests the ability to memorize legal rules that can easily be found in a book or online while neglecting broader skills such as client interviewing and negotiation.

A trio of law professors now say that bar examiners in the United States should look to Ontario, Canada, as a model for building a better bar exam. The Law Society of Upper Canada, which administers the licensing exam throughout the province, unveiled an exam in 2006 that focuses on lawyer competencies, not just legal knowledge. The test is open book, and questions are designed to assess lawyering skills in addition to legal analysis, according to a post on the Law School Café blog, written by Georgia State University College of Law professor Andrea Curcio, University of Minnesota Law School professor Carol Chomsky, and Touro College Jacob D. Fuchsberg Law Center professor Eileen Kaufman.

“Unlike the U.S. exams, the [Canadian] exam is open-book, so it tests the ability to find and process relevant information rather than the ability to memorize rules,” the post reads. “Most important, it tests a wider range of lawyering competencies than U.S. exams, and it does so in the context of how lawyers address real client problems rather than as abstract analytical problems.”

An overhaul of the bar exam in the United States is ripe for discussion, Curcio, at Georgia State, said in an interview Wednesday. Pass rates have plummeted in many states over the past three years. A growing number of jurisdictions, including California and Ohio, are currently studying or plan to study the bar exam, Curcio said. A number of legal academics also have called for the formation of a national task force to examine the test.

“I think there is increasing dissatisfaction with the exam and some real momentum for change,” she said.

Erica Moeser, president of the National Conference of Bar Examiners, defended the Multistate Bar Exam—the six-hour, 200 multiple-choice-question portion of the test—as far more than just a memorization exercise. The current exam tests legal knowledge, but it also “involves applying knowledge and using reasoning,” she wrote in an email Wednesday.

The conference monitors lawyer licensing exams in Canada and elsewhere, she added.

“We are in the process of moving ahead with another study that will investigate what lawyers are expected to know and do at the first stages of their careers,” Moeser wrote. “No one rests on laurels around here.”

Curcio said she began looking a how other countries license attorneys about a year ago in an effort to identify potential improvements to the U.S. test, rather than simply level criticism against it.

Ontario’s test immediately stood out as a candidate for further study. Like the U.S. bar exam, it relies heavily on multiple-choice questions with a time limit. But the questions are written to reflect knowledge of the tasks lawyers perform, the professors wrote in their blog post.

“Our test questions tend to say, ‘What’s the right answer? How would a court rule?’” Curcio said. “Their test questions ask potential lawyers: ‘Given this doctrine, what do you need to ask your client? What evidence do you need?’ It tests what lawyers do long before they get to court. It’s through a different lens.”

Providing test takers with reference materials also more closely approximates what new lawyers will do in practice, the professors wrote. “Lawyering is an open-book profession,” their post reads. “Indeed, it might be considered malpractice to answer a legal problem without checking sources!”

But Moeser questioned the practicality of a timed open-book test that gives takers relatively little time to actually check through their reference material. “I am not persuaded that allowing an open-book test but keeping the time constraints (two minutes per item as reported) does anyone any favors,” she wrote

Ontario’s test is not perfect, the law professors acknowledged. It still doesn’t evaluate experiential skills. But new lawyers in the province must also article—spend 10 months as a legal apprentice—or complete a four-month work training course or work placement, which presumably helps them develop real-world skills.

“For a long time, the bar examiners have said, ‘We know it isn’t perfect, but it’s the best we can do,’” Curcio said. “Clearly, [Ontario’s exam] shows that that isn’t accurate. We can test more, and test a little differently than we’re currently doing.”

 

Contact Karen Sloan at ksloan@alm.com. On Twitter: @KarenSloanNLJ