Skills Over Book Smarts in Pa. Bar Exam
Pennsylvania adds test of practical lawyering skills to state bar examby Robert L. Sharpe
Pennsylvania Law Weekly
August 13, 1999
A change in the Pennsylvania bar exam will emphasize a candidate's lawyering skills rather than studying skills.
Beginning in July 2001, Pennsylvania will become the 21st state to include the Multistate Performance Test in its bar exam.
The test gauges an applicant's ability to organize and complete a task which a beginning lawyer should be able to accomplish, according to Erica Moeser, president of the National Conference of Bar Examiners.
"The performance test mirrors the experience a lawyer would have in picking up a client's file and taking whatever action lawyers have to take to perform their jobs," Moeser said.
"It's testing real skills that young lawyers should have," said Robert J. Coleman, a member of Pennsylvania Board of Law Examiners and chairman of Marshall Dennehey Warner Coleman & Goggin.
Test-takers are given a law library consisting of cases, statutes, regulations and rules, some of which may not be relevant to the assignment. A file supplies documents containing the case's facts, all of which may not be relevant.
"In contrast to an essay exam, where the goal is to eliminate extraneous matter and red herrings from the question, the performance test requires a candidate to separate the wheat from the chaff," Moeser said.
The test is designed to demand legal analysis and reasoning, fact analysis, fact gathering, problem solving, communication and the recognition and resolution of ethical dilemmas.
Introducing the performance test "is a good idea," said Dale G. Larrimore, a Center City attorney and the executive director of Pennsylvania and New Jersey Bar-Bri Bar Review.
"It's not a perfect means of testing a candidate's ability to practice law, but it's certainly a good attempt at testing lawyering skills and not just legal knowledge," said Larrimore, a member of the board of governors of the Philadelphia Bar Association.
In an example of a performance test assignment from 1997, the candidate was asked to prepare a brief in support of a motion for summary judgment on the tort theory of assumption of the risk.
The candidate was given a personal injury case file containing a memorandum on how to write a persuasive brief, a medical summary and excerpts from depositions of both the plaintiff and defendant. The library consisted of two cases.
"It's an open book test," said Sam Uberman, assistant secretary to the N.J. Board of Bar Examiners, which has used the performance test for one year.
"Last year there was a question on wills and trusts," Uberman said. "You don't have to be familiar with wills and trusts to take the test. All the raw material is there.
"You take the analytical skills that hopefully were developed in law school and apply those skills to the problem," Uberman said.
Mark C. Dows, executive director of the Pennsylvania Board of Law Examiners, was unavailable for comment yesterday.
There has been no impact on the pass/fail rates in the states using the performance test since its introduction in 1997 by the National Conference.
"It's probably changing who passes but not the overall pass rate," said Jane Smith, director of testing.
"We know that in the states where we first administered the test on an experimental basis that there were candidates who passed who otherwise would have failed," Smith said.
"But we've been unable to identify any particular characteristics of the people who did well. We struggled to find a link with any training in law school or whether there was any hands-on experience a student may have had, like a summer clerkship," Smith said.
New Jersey, to date, has had only one scored test administered, so there are no reliable figures on how the test may have affected scores, Uberman said.
To carve out the 90 minutes needed for the performance test, "We cut back our six essay questions from 60 minutes to 45 minutes," Uberman said.
The new test accounts for 10 percent of the New Jersey test score and the essay questions are now worth 55 percent, down from 65 percent. The multistate multiple-choice questions remain at 35 percent of the total score.
Larrimore said Pennsylvania has not yet decided how much weight the new test will carry toward the overall exam score.
The performance test, which comes in either 90-minute or 180-minute versions, became the third bar exam test produced by the National Conference.
Pennsylvania also uses the 200-question multistate bar exam but replaces the National Conference's multistate essay exam with its own set of eight essay questions. A fourth test, administered separately from the bar exam, is the multistate professional responsibility exam.
Pennsylvania has selected the 90-minute version. How will the state find the time to insert the time needed to take the new test?
"I suspect they will take away two questions and have six essay questions and the performance test," said Larrimore. "I think the Pennsylvania essay questions are the appropriate length of 45 minutes each and should not be cut down in time."
Moeser, of the National Conference, finds it significant that performance testing is replacing part of a state's established bar exam.
"You're asking states to drop something in order to substitute the performance test," she said. "That tells you they must think this is very valuable, to make space in their exams."
The addition of the performance test in Pennsylvania should not cause a significant price hike in the cost of taking the bar exam, Moeser said.
"If a jurisdiction used all three bar exam tests, you're looking at a cost of less than $100 for two days of testing," said Moeser.
The cost of an additional test is insignificant when compared to the overall costs, such as a character and fitness review, that make up the application fee, she said.
At Villanova University School of Law, the new test is viewed as simply one more aspect of learning to think like a lawyer.
"While the bar exam is one of the things we take into account, we set out to prepare a student for a lifetime of practicing law," said Doris D. Brogan, associate dean for academic affairs. "Our goal is to provide a legal education as opposed to a bar preparation course."
The addition of a practical test on the bar exam could prompt more law students to enroll in clinical courses.
"We're trying to encourage students to pick up these skills in law school," Coleman said of the bar examiners in Pennsylvania.
Clinicals fill that role, said a member of the clinical faculty at the University of Pennsylvania Law School.
"One of the essential elements of clinical education is experiential learning, where doing is part of learning," said Alan M. Lerner, practice professor of law.
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