X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
We regret to inform you that the hours of study, those stamina-boosting chocolate-covered espresso beans and that lucky rabbit’s foot all counted for nothing. You’ve failed the bar exam, and there is no appeal. The irony is that the exam that qualifies lawyers — taught in law school that almost anything can be challenged with a good enough argument — permits no pleas for review. “There’s no way to challenge it. The only thing you can really do is take the next bar exam,” says Hulett H. Askew III, director of the Georgia Supreme Court’s Office of Bar Admissions, which administers the test. Still, Askew says dozens of disappointed test takers will tie up his office’s phone lines for several days this week, trying to find some appeal or argument that will push them over the line into “pass” territory. But there’s not much that Askew can do. According to the Georgia Supreme Court’s rules on admission to the practice of law, Askew may talk with applicants after exams, but “he shall not review examination questions or answers … nor shall he allow inspection of either questions or answers.” And don’t bother trying to pry out those questions and answers with open records requests. Askew says that as part of the judicial branch, his office isn’t subject to them. If applicants want their answers, they must bring carbon paper with them to the exam and make a copy as they take the test. The rule also forbids the Board of Bar Examiners and its members from conducting post-exam interviews with applicants or regrading answers after grades have been released. “The rationale behind this … is [that] to permit review [or] regrade to the applicants is to introduce bias into the process,” Askew says. When exams are first graded, bias is impossible because the test papers are anonymous, identified only by a number, according to Askew. But, he says, if appeals were allowed, a review of the exam would require examiners to match names and numbers, revealing the test taker’s race, gender, age, law school and number of attempts at passing the exam. RULES SENT TO APPLICANTS Test takers should know there is no appeal, says Askew, because the rules governing the bar exam are sent to them when they request an application for fitness to practice law, a necessary precursor to taking the bar. “It always amazes me — lawyers or law students don’t read the rules before they challenge an issue,” he says. Rules or no rules, some won’t take no for an answer. Applicant John C. Bowles, for example, sued Askew when he failed the July 1993 bar exam. Bowles initially demanded that he be allowed to inspect his answers and those of five other test takers to determine whether his answers had been correctly matched to his name. He even attempted to get a temporary restraining order to prevent the destruction of his answers. Fulton County Superior Court Judge Don A. Langham said no. According to the opinion, in light of Bowles’ “unlimited opportunity to retake the bar examination, there is no evidence of irreparable injury.” When the case got to the Supreme Court of Georgia, the justices held that any due process interest Bowles may have had in inspecting his answers was outweighed by the “intolerable burden” that requiring review of every failed grade would place on the bar examiners. The case was Bowles v. Askew, 264 Ga. 520 (1994). The U.S. Supreme Court denied certiorari in the case. Test takers also have appealed directly to the state supreme court, without suing Askew. He says the court usually issues per curiam opinions in those cases. “None of those challenges have ever gone anywhere,” he says. PASSING SCORE IS 67.5 PERCENT Askew points out that applicants don’t have to come anywhere close to a perfect score to pass. Of 400 possible points, a test-taker only needs 270 to get a letter that begins with the word congratulations. That’s 67.5 percent. “That ain’t knockin’ it dead,” he says. What’s more, the multiple-choice part of the test, the Multistate Bar Exam or MBE, is scaled and tends to boost test takers’ scores by about 15 points. The scale is based on national MBE results. The MBE each year includes 35 to 40 questions from previous tests, and the curve is based on historical and current responses to those questions. The point, says Askew, is to ensure that the MBE is neither easier nor harder than in prior years. Then the essay and Multistate Performance Test, or MPT, scores are curved as well. Askew recommends that those who are within one point of passing spend $5 to have the National Conference of Bar Examiners hand score the MBE. But he says he’s never known it to change anyone’s score. Test takers whose overall score is close to passing — 265 to 269 — get an automatic regrade before the scores are released. Scores are triple-checked to make sure the proper grade was matched with the proper exam number, Askew says. The bar admissions office also will check that a test taker’s scores were properly transposed from the form the grader filled out to the final score sheet. “And we’ve never found a mistake,” he says. Some states do allow appeals — Askew says Alabama and Ohio are among them. But in Georgia, where fighting over appeals just eats up study time for the next exam, Askew’s advice to those who didn’t pass is this: “The best thing for you to do is to move on.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.