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This is a story about law school exams, so it may cause a few twinges of discomfort or anxiety. Although it is a true story, I have changed a few details for the sake of anonymity. My friend, whom I’ll call Bruce, is a thoughtful and talented fellow who runs an extremely successful program (at a private university, not mine) that brings Chinese officials to the United States to study public administration. Among his many roles, Bruce teaches them administrative law, which has lately caused him some frustration. Planning to give a four-question midterm exam, he provided his Chinese students with a list of 10 topics that might be on the closed-book test, assuming that would help them study more efficiently in an unfamiliar setting. Then, to Bruce’s chagrin, he received a set of exams with virtually identical — that is, nearly word-for-word — answers. If they had been regular students, Bruce would have suspected cheating. But he soon realized that the students in the Chinese program had simply studied together, agreeing on the best possible answer to each of the 10 potential questions — and then memorizing each one. Needless to say, my pal was appalled. It was supposed to be a law school examination, not a memory test. Besides that, he felt pretty guilty about the stunning amount of time his students must have spent perfecting and memorizing all 10 answers. And the final exam was looming. What could he do to prevent another fiasco? “I keep telling them, ‘Don’t memorize,’” he lamented to me.” ‘Don’t memorize,’” he repeated, his voice rising. But it had not done any good. The whole notion of spontaneous composition writing was, well, foreign to them. To the Chinese students, studying apparently meant absolute preparation, with no room for improvisation or surprises. So far, Bruce had not been able to figure out how to get them to concentrate on the concepts without writing scripts. At first I identified wholeheartedly with Bruce’s dilemma. His students were knocking themselves out unnecessarily, while defeating the very purpose of the examinations. They weren’t getting much sleep, they weren’t being tested, and they couldn’t even be graded individually. Worse, there didn’t seem to be an obvious way to bridge the cultural gap. How could Bruce convince his students to be less obsessive, and more spontaneous, about their exams? But after I thought about it for a while, I began to sympathize with the students’ point of view. From their perspective, our law school examination system must have seemed irrational. What is the point of testing a semester’s worth of education on the basis of a few hours of rushed writing? Why place such an extreme premium on rapid recall and facile composition, rather than on extensive research and depth of understanding? The Chinese students apparently wanted to be judged on the basis of their studies, rather than on the basis of their synaptic speed. They wanted to give their best answers, rather than their quickest ones. No wonder Bruce hadn’t been able to convince them to stop memorizing. Given the opportunity, ability, and time, what sane person would fail to prepare exhaustive examination answers? So it is unsurprising that the Chinese students refused to embrace American law school exams. The real question is why American students put up with them. There is almost nothing about the typical law school examination that is really designed to test the skills involved in law practice. And many aspects of exams are positively perverse. Take time pressure, for example. By their nature, exams are time-limited, usually to about three or four hours, during which it is necessary to assess the problems, decide on the answers, marshal the material (whether strictly from memory or from an “open book”), and then write, hopefully, coherent answers. There is no opportunity for reflection, research, reconsideration or redrafting. You simply dash off your answer and hope you got it right. No competent lawyer would approach a serious problem under comparable conditions (except in an extreme and extraordinary emergency); in fact, that would probably be malpractice. Yes, a few situations require lawyers to respond promptly to the demands of courts or clients — appellate argument, trial objections, “drop-dead” negotiations, filing last-minute documents and perhaps drafting the extraordinary deathbed will — but the workaday life of the average lawyer is characterized far more by cogitation, elaboration, extension, and delay than it is by instant answers. And, of course, the key lawyering skills — the ones that separate highly successful practitioners from mediocrities — are barely taught in most law schools, outside the clinic, let alone tested: tenacity, diligence, thoroughness, collaboration, consultation, fact investigation, and, crucially, the willingness to admit error and start over from scratch. Those qualities will actually put you at a disadvantage on law school exams. Far better to rely on flashes of insight and an ability to write on the fly. The dirty secret (if it is a secret) is that law schools rely on exams primarily because they are easy to grade. The intense time pressure guarantees that the answers will be relatively short and, even more important, that quality will differ significantly. Exams do a great job of dividing test takers into measurable categories, even if those categories measure nothing more than an ability to take tests in an artificial, nonlawyerly setting. The same thing can be said about the multistate bar exam, which tests even more information in even less time — although at least the bar examiners have an excuse. They have the daunting task of administering a broad test to thousands of applicants in dozens of states on a single day, with obviously immense security problems. The test has to be quick, and it has to be simple. To their credit, the bar examiners don’t purport to evaluate the test takers on any sort of qualitative continuum. They either pass or fail — a one-point margin is as good as a perfect score — on the basis of acceptable knowledge of the relevant law. And the failures can come back and take the test again. Law school exams cannot claim the same justifications, but does it really matter? Students don’t rebel (after all, they got into law school because they were good at test taking), faculties are content, and law firms evidently believe that grades mean something. On the other hand, those damn exams send all the wrong messages, emphasizing a sort of counterproductive intellectual stoicism in which you have to come up with the right answer, on your own, or else. What can that lead to? Perhaps I can sum it up with another story. (I heard this one from another friend, a legal malpractice defense lawyer.) A young lawyer at a small law firm was assigned the task of filing a complaint in a commercial law case. As fate would have it, he blew the statute of limitations by a couple of days. And then he panicked. Rather than admit his error, he created a dummy complaint with a dummy date stamp, and told the client that the case had been filed. He kept the client informed of the “progress” of the phony case for nearly a year, and then reported that, regrettably, it had been dismissed on summary judgment. The client, who was no chump, figured out what had happened and complained to the firm. Needless to say, the young fellow was promptly fired and reported to the disciplinary authorities. This is where my friend came in. He represented the lawyer in the disciplinary proceeding and managed to save him from disbarment, although the poor fool was suspended for three years. But that is not the extent of the disaster. As my friend put it: “Three years later, on the day the suspension ended, the statute of limitations had not yet expired on the underlying case.” Relying on his memory, the young lawyer had misunderstood the law, with ruinous consequences. Of course, he would have learned about his mistake in plenty of time, if only he had gone to someone for advice when he thought he was in trouble. I don’t want to blame the kid’s moral failings on his legal education, but it doesn’t seem to have helped much. No matter where he picked up his self-destructive solipsism, it looks like no one ever taught him how to ask for help. On his law school exams, in fact, that would have been cheating. Steven Lubet is a professor of law at Northwestern University, where he almost never gives exams.

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