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Is it a case of a test that’s too tough, or are too many lawyers who seek certification in civil appellate law failing to prepare adequately for the exam given by the Texas Board of Legal Specialization? A whopping 72 percent of the 32 attorneys who took the 2002 civil appellate law exam last October failed, according to the TBLS. Only nine examinees scored 52 percent or higher to pass the test, TBLS reports. The high failure rate on the 2002 civil appellate law exam isn’t an aberration. TBLS statistics show that 74 percent of the 27 attorneys who took the test in 2001 failed, and 68 percent of the 33 examinees failed in 2000. Taking the test isn’t cheap. Attorneys ante up a $150 application fee and a $250 exam fee to take the TBLS test, which enables them to be certified. For some, taking the exam is a waste of money. Robert Stokes, TBLS chairman, says one specialty area experienced a 100 percent failure rate on the 2002 exam. All five attorneys who took the exam for consumer bankruptcy law failed, says Stokes, an attorney with Flahive, Ogden & Latson in Austin. Failure rates in most other specialty areas are lower, ranging from 11 percent for juvenile law to 67 percent for consumer and commercial law, TBLS records show. The test for farm and ranch real estate law had a 100 percent passage rate, but only one attorney sat for that exam. Stokes says the board, which is appointed by the State Bar of Texas president, has “invested hundreds and hundreds of hours in designing a system to administer fair exams.” In each specialty area, one panel of attorneys reviews applicants to determine whether they meet the requirements to take a certification test, and another panel of attorneys drafts and grades the exams, Stokes says. An independent group of practitioners and law school professors reviews each test for fairness and to spot sexist or racially insensitive questions, he says. If anything happens at TBLS that accounts for the high failure rate in a specific specialty area, it’s the board’s philosophy that applicants should be approved to take the tests in cases in which it’s a close call as to whether they meet the requirements, Stokes says. Leaders of the 10-member Civil Appellate Law Exam Commission say they believe the tests that they’ve drafted are fair. “I think the passing rate reflects that the test is difficult,” says William J. Boyce, the exam commission’s chairman and a Houston partner in Fulbright & Jaworski. “I think a difficult test is appropriate if the people who pass it are going to be held out as having special expertise in appellate law,” Boyce says. Jo Ann Storey, a 10-year veteran on the commission and its immediate past chairwoman, says, “We never ever, ever set out to fail a certain number of people, or a certain percentage of people, or to make the exam tricky.” Storey, a shareholder in Houston’s Storey, Moore & McCally, says over the past five years she has seen a decline in knowledge among those who sit for the exam. “We have had folks affirmatively demonstrate that they do not know civil appellate law,” she says. The test typically includes about 100 multiple-choice questions and three essay questions with multiple parts that require an examinee to apply the law to a specific set of facts, Storey says. While the commission comes up with a model answer to each essay question, an answer that the commission hasn’t thought of won’t be marked incorrect if the examinee presents plausible arguments, she says. The exam commission’s handiwork gets mixed reviews from the attorneys who’ve taken the civil appellate test. One attorney who took the test multiple times before passing it questions whether the lawyers who draft and grade the test have much experience in testing. Some of the essay questions presented “a jumbled mess fact pattern,” says the attorney, who spoke on the condition of anonymity. “That was the first exam I ever took that, when I left it, I didn’t feel like I’d done a good job. It was demoralizing to me,” the attorney says. Austin attorney Greg Coleman, chief of the appellate practice group for Weil, Gotshal & Manges, passed the test on his first try in 1997. But Coleman says the civil appellate exam always has been more difficult than the tests given in other specialty areas. “I know several people who are terrific appellate lawyers who have not passed [the test] on the first go around,” Coleman says. Amy Maddux, an associate with Baker Botts in Houston, took the test for the first time in 2002 and passed it. Going to the test well prepared is essential, says Maddux, who says she took a week off from work to study. “I thought it was difficult,” Maddux says. “But I thought a good number of the questions were appropriate indicators of appellate knowledge.” Preparations for the 2003 tests are under way. Gary McNeil, TBLS executive director, says applications are being accepted and reviewed, and the commissions for the various specialty areas are working on the questions for the tests, which are scheduled for Oct. 13.

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