The fifth installment in the Bar Exam Research Query Blog Series discusses research questions pertaining to the bar exam’s role in determining minimum competency to practice law.
Law school graduates nationwide recently sat for a grueling multi-day exam that will ostensibly determine whether they are “minimally competent” to practice law. Attendees at the Bar Exam Research Forum that AccessLex hosted back in April posed many questions pertaining to minimum competency and the bar exam’s role in measuring such.
A threshold question was: What is “minimum competency”? It is a term of art within the profession, but what does it mean in tangible terms? How has it been conceived in the past? Are those conceptions relevant to today’s practice of law? Will they be relevant in 20 or even 50 years?
How is “minimum competency” defined by different constituents? Does minimum competency mean the same thing to a judge as it does to a supervising attorney, law professor, or client? Are there different standards of minimum competency based on employment sector? Is minimum competency among, say, prosecutors different than competency among, say, law firm associates?
Which subjects are most relevant to determining minimum competency? Are all these subjects equally relevant, or should standards of mastery vary? Should subject matter mastery vary based on the area of law in which the test-taker desires to practice? Should it vary based on stage of career? Most bar exam takers are new lawyers, but some are already licensed in other states?
What about skills? Which skills exactly are most important to determining minimal competency? What about character? One important study in this area is Foundations for Practice: The Whole Lawyer Character Quotient (hereinafter “Character Quotient Study”). Among other things, this study sought to identify qualities that were most useful to new lawyers. The study revealed that many foundations for practice (sometimes called “soft skills”), such as communications skills, are critically important for new lawyers, in some instances even more important than mastery of legal rules. The section in the Character Quotient Study on Communications notes, “By and large, foundations in the Communications category were considered necessary in the short term by a majority of respondents – with the ability to listen (92%) and promptly respond (91%) being the foundations most often identified as such.” What role could the bar exam or some other form of assessment play in measuring the extent to which aspiring lawyers possesses communications and other relevant character foundations and skills? Should the ability to demonstrate competency in listening skills be part of licensure requirements?
How does changing technology impact minimum competence? With the ABA changing Standard 306 to allow more extensive distance learning in law schools, law students will likely have even greater exposure to technology as part of their legal education, but how tech savvy are they? Should licensure require a basic understanding of privacy and cyber security laws?
From a research perspective, it is important to consider how to convert these and other curiosities into sound research questions and to identify reliable methodologies to assess such research. For instance, what would be the best way to measure the extent to which knowledge of Contract law is associated with or even predictive of good lawyering skills? How do we measure the effect of different cut scores on lawyer competence? Could we effectively assess minimum competence in ways other than administering a bar exam? Or could the bar exam be updated in ways that might better assess a minimum competency in a wider variety of lawyering skills; for example, what would be the effect of increasing the weight of the performance test portion of the bar exam?
Stay tuned as we tackle yet another aspect of bar exam related research in the next installment of our bar research query series. And, please add your thoughts to this discussion in the Comments Section of this blog or by emailing success@AccessLex.org