Judith Gundersen.

 

If there’s one person who controls the fate of law graduates across the nation, it’s Judith Gundersen.

Gundersen stepped in as the president of the National Conference of Bar Examiners on Aug. 21 following the retirement of longtime president Erica Moeser. Gundersen is no stranger to the Madison, Wisconsin-based conference, which develops the national portions of the all-important attorney licensing exam. She has worked there for 17 years, most recently as the director of test operations where she oversaw the development and production of the bar exam.

Gundersen assumes the presidency at a turbulent time, when many critics blame the exam itself for pass rates that have declined over the past three years. There may be good news on the horizon for the thousands of new law graduates who sat for the exam in July, however. Gundersen said this week that the national average score on the Multistate Bar Exam—the 200-question multiple choice portion of the test—rose 1.4 points over the July 2016 average. That bodes well for pass rates in many jurisdictions. We spoke with Gundersen about her priorities for the bar exam, what the test of the future might look like, and what the bar exam critics get wrong. Her answers have been edited for length and clarity.

 

Your predecessor spent a lot of time in recent years defending the bar exam from critics. Do you expect that to be a significant part of your new role?

Time will tell. I’m guessing that will be the case. I understand the concern, when there are dropping pass rates. It isn’t the exam.

We embed prior questions in the exams. We’ve found that some of the exact same questions that were given years ago, the same percentage of people weren’t answering them correctly. But if scores continue to drop I would expect there to continue to be concern over, “Is the exam somehow changing?”

 

Erica Moeser joined the bar through Wisconsin’s diploma privilege program and never took the bar. You graduated from the University of Wisconsin Law School. Did you take the bar?

I didn’t take a bar exam. I was born here. I went to school here. I never practiced outside of Wisconsin, so I never needed to. I suppose if I were my 25-year-old self and I could see where I was right now, I’d say, “Hmmm, Judy, maybe you should take a bar exam just for street cred 30 years from now.” But of course, I would have never foreseen that.

 

We’re seeing some jurisdictions lower cut scores in response to falling pass rates. Nevada and Oregon recently lowered their cut score, and California is contemplating doing so. Is that the right response?

I understand the impulse to do it. It’s up to every jurisdiction, every state court. I think there was a movement in the mid-90s when pass rates were very high that states were thinking, “Maybe we need to raise the cut score because 80 percent, 90 percent of our examinees are passing.” I understand the impulse to go the other way. Some of these states, like California, you could argue have a pretty high cut score. Oregon’s was pretty high. It went down 10 points. It’s a local decision and there are all kinds of factors that come into play. It’s a hot topic right now.

 

What are your priorities for the National Conference of Bar Examiners?

I’ve got four areas we’re looking at.

For all our exams, we are still paper and pencil. We’re looking at different delivery methods. Are there things we could be doing differently? Are there other delivery platforms? We’re starting to look at that.

We did a job analysis five years ago, looking at how what we test aligns with what newly licensed lawyers do in the field. We looked at knowledge, skills and abilities all the way down to tasks—how many times do you do this if you’re a family lawyer? That’s about five years old, and we’re in the initial stages of doing a few exploratory follow-up studies to that job analysis. Now, our focus is going to be questioning attorneys who supervise newly licensed lawyers, and getting their perspectives. And we’re also looking at how the practice of law and the profession changed. Are there other things we should be testing? Have there been technological developments that may require that we test in a different way or test different things?

Another initiative of mine is keeping the momentum with the Uniform Bar Exam [which allows bar takers to transfer scores across participating jurisdictions]. That’s six-plus years strong. We’re at 28 jurisdictions and counting. We’ve had about 7,000 people transfer scores. That’s a pretty big deal that 7,000 people didn’t have to take another bar exam.

We’re always trying to brainstorm and get input from our stakeholders. We’re getting feedback from bar examiners, justices, bar admissions staff, and law school faculty as well. Those are some of my initiatives.

 

What do you think the bar exam will look like in five years?

It’s hard to predict, but I think we might be looking at a different delivery mechanism. I think we might eventually be moving away from the Scantron sheet and bubbling in answers. There aren’t that many exams now that use paper in pencil.  In terms of the content, I don’t know. I’d have to see what our validity studies show us. I need to let the evidence unfold.

 

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