(Please Note this Article was originally published on January 19, 2011)
If you’re planning to sit for the Louisiana Bar Exam anytime after the first of the year in 2012, this article is for you. The Louisiana Bar and Louisiana Supreme Court has asked for attorneys’ opinions on the proposed changes to the bar exam beginning with the February 2012 exam. This article is not for the purpose of airing out dirty laundry, but rather to give my opinion a wider audience and bring to light the importance of this issue. I invite all attorneys to comment or provide the LASC with their opinions as well. If you’re interested, please see the link on the LASC website.
First, let’s fill you in on the current format of the exam. The LA bar consist of 9 parts which comprise approximately 21.5 hours of essay writing. There are 5 code topics and 4 non-code topics. Code topics refer to the Louisiana Civil Code topics and non-code refer to topics which exist within the code, but are tested based on federal/national standards. Each day, 3 parts of the exam are administered and there is one day off between each day of testing. Without getting in to the nuts and bolts of the exam itself, you need to pass 7 of the 9 sections of the bar and you pass at least 4 of the code sections to pass. A passing score on each individual part is 70/100. If you’re not following me, please refer to the Louisiana Committee on Bar Admissions website above or Wikipedia.
Louisiana currently has an option called ‘conditioning.’ In order to condition the Bar, an applicant must pass at least 5 of the 9 sections of the bar. When you condition and re-take the bar exam, you are only required to re-take the sections which you failed. Remember from above, that in order to pass you only need to pass 7 of 9 sections. Therefore, conditional passers only need to pass 2 of the exams the previously failed. In instances where an applicant conditioned with 6 passing subjects, they only have to pass 1.
For those of you who were wondering…you can fail the Louisiana bar exam. Applicants who fail 5 or more sections of the bar must retake the entire examination, regardless of their passing status for individual subjects. Admittedly, there are a myriad of ways in which an applicant can pass, fail, or condition, so again I refer you to the Committee’s website or Wikipedia.
Now lets begin to look at the changes. In Feb. 2012, the form of the examination will remain the same, however the way to pass will change. In order to pass, an applicant will be required the attain a score equal to 70% of the total possible points available on the exam. Since all exams currently have a maximum score of 900 points, a passing ‘score’ on the examination would be 630 points. I am in favor of this change. Under this format, an applicants goal will be to achieve as many points possible on each portion of the exam. This format will reward exam-takers who do very well in a particular subject because it will provide applicants with room to do poorly on another subject. No one wants to perform badly on the bar, but it is nice to say to yourself, “Even though I did poorly on Code 3, I feel good about Codes 1 and 2, so I probably made up for the difference.” A test taker who does not achieve 630 raw points will receive a ‘fail’ for the bar exam, and there will be no conditional pass. This method will require failing applicants to re-take the entire exam. In fairness, this type of exam format has proven to be successful in other jurisdictions. Texas is an example.
The writers of the the Louisiana bar exam believe this format will reduce the number of applicants who ‘spot’ the test. For those of you who are law-minded when you read this, you’re probably already thinking about issue spotting. This is not what the examiners have in mind. The examiners would like to stop bar takers from simply not sitting for a section of the bar. In the past, certain parts of the exam have given many takers trouble. As a result, takers who knew they were likely to fail a section chose not to sit for that part of the exam and to devote their study time elsewhere. I do not agree with this ‘spotting’ however I know lots of people who passed the exam using this tactic (however, many of the them passed on their second try after conditioning on their first).
Further down the road is where the real changes begin. In Feb 2015, the Committee plans to implement an entirely new exam format. Under the new format, applicants will be subjected to an estimated 18 hours of examination over the course of 3 days in a row.
The Committee plans to move away from subjective essays tests and towards a more objective set. They will accomplish this is two ways. First, they will implement some form of the MPT (Multi-State Performance Test). The MPT is an essay test where an applicant is provided with a “library” of caselaw, then they are presented with a directive from a ‘partner’ to summary the case info as it relates to a particular ‘client’s’ facts, and are graded on their ability to meet the partner’s objective using the provided law. This test is administered in a number of jurisdictions around the country with great success, however I am not in favor of adding it to the Louisiana Bar. This test does not demonstrate a candidate’s ability to understand Louisiana-specific concepts and it does not take into account that some applicants are not strong legal writers (even though they went to law school). Furthermore, bar applicants who prepare for the MPT will not learn any new law. Rather, they will be learn how to write the best essay based on the available fact. Also, the MPT takes away from exam space for essay which task the taker to show their ability to comprehend and apply the Louisiana law. On the other hand, I am a fan of the MPT for one reason. The MPT thwarts bar takers from memorizing the answers to the bar questions. Presumably, the MPT will not be as repetitive as the Louisiana bar itself and applicants will not be able to memorize the answer to the questions before they sit for that portion.
In addition to an MPT, the Committee would like to add a multiple choice section to the bar. At last count, Louisiana and Washington state were the only two jurisdictions which did not test using the MBE (multi-state bar exam) as part of their exam. The MBE is written and graded entirely by the NCBE (National Conference of Bar Examiners) and currently uses a 200 question exam. The exam tests 6 topics: constitutional law, contracts, torts, evidence, criminal law, and property, each section receiving between 33-34 questions. For the record, it is impossible to adopt the MBE in its entirety in Louisiana due to different rules on property and contracts. It is administered in two 3 hour sessions on the second day of testing (typically the 4th Wednesday in February or July). The MBE is a strongly objective test and has been used for almost 40 years. It is incredibly accurate and less than 1% of all questions test are thrown out each administration. I sat for the MBE twice.
While the MBE is an unusually accurate determination of an applicants ability to practice, it is a difficult test. The questions are difficult and it is designed to fatigue students who are not mentally or physically prepared. I am completely against adoption of the MBE to the Louisiana bar. Luckily, the standard MBE will not be adopted in Louisiana for the reasons mentioned above. Instead, the State plans to adopt 2 separate MCQ (Multiple choice question) tests. For the first MCQ, the state plans to test 100 questions solely on Louisiana Code, and, for the second MCQ, the State plans to adopt 100 MBE questions taken from jurisdictionally appropriate sections of the MBE: criminal law, evidence, constitutional law, and federal jurisdiction and procedure.
This two-pronged test presents a few problems. First, fed j&p is a newly added section the MBE and will take some time before the questions are perfected. Second, the LA-MCQ will still be written by Louisiana. I’m not saying there is anything wrong with Louisiana, but it was my impression that the premise behind the new test was to objectify and standardize the questions. Using Louisiana writers to write objective questions has already failed. Next, there are 9 (5 code and 4 ‘non code’) subjects which can be tested in any order, not to mention the number of sub-topics within each category.
However, the MCQ portion of the new bar exam will favor some applicants who perform well in multiple choice tests. Currently, the Louisiana bar favors applicants who have a keen ability to write and overlooks applicants who may know the right answer but cannot express it in words. Further, applicants who are great writers may be able to write themselves out of a corner to a ‘wrong’ answer which receives partial credit, while a below average writer is given no credit for a partially ‘right’ answer. Another important strength of the MCQ format is that it allows the State to test previously untestable and obscure topics through short, clear, and concise multiple choice questions.
The final section of the Feb 2015 bar will include 9 one hour essays which will test the same topics as are test presently, but will do so in a shorter format. I am not familiar with a jurisdiction which tests this way, but I believe this section of the proposed change will be reasonable. If you’ll allow me to brainstorm a little, here are some potential pitfalls: Will the same essay be administered to each applicant in the same sitting?
Will more than one essay be administered in one sitting (3-1 hour essays in a 3 hour period)? Will the essays be written, as text are now, by Louisiana law gurus or written by a 3rd party?
As for commentary, I believe these 9 test will be very fair and reasonable, no matter the pitfalls.
Here are some closing remarks. First, I am a strong advocate of the short-term changes to the bar, but I am not in favor of the long-term changes. I believe the Committee has placed too much emphasis on creating an objective test, but have failed to take into account the subjective burdens which are implicated by the 2015 changes. I believe the Committee, in an effort to make the Louisiana Bar exam similar to other bar examinations throughout the country, has hurt the identity of the Louisiana bar and diminished the individual accomplishments of Louisiana applicants. In addition, the seems to be an underlying desire to make the Louisiana Bar exam more like bar exams in other states, but preserve the strong Louisiana code emphasis on the bar. The bar examiners believe the change will allow a greater opportunity for reciprocity between Louisiana lawyers and other states’ bar committees. This belief is without merit. By using a bar that remains strongly suggestive, it will be difficult for Louisiana lawyers to take their scores to other jurisdictions, and lawyers will only be able to transfer their MPT score, not their MCQ or essay scores. I feel if the Committee were truly interested in reciprocity and granting lawyers the opportunity to move their scores, they would be forced to adopt the MBE, but, as we can see, that is not possible.
I hope that those of you reading this have found this article to be inciteful, encouraging, and explanatory. If you remain confused or seek further advice regarding your application to your website, please visit my firm’s website or click the link to the right.
