Wisconsin Lawyer: As I See It Does the Bar Exam Ensure Knowledge of Wisconsin Law? Is It Relevant Today?:

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    February
    01
    2015

    As I See It
    Does the Bar Exam Ensure Knowledge of Wisconsin Law? Is It Relevant Today?

    The author asserts the Wisconsin bar exam burdens test-takers financially and professionally while failing to fulfill its goals of ensuring knowledge of Wisconsin law. He asks, should the test be administered at all?

    Michael LoCoco

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    owl eyesSeveral months ago, I found myself sitting in a large room at a Marriott hotel in Madison. An ID badge with my picture and a serial number was clipped to my shirt. I and a couple hundred other law students received our last instructions before we would take the Wisconsin bar examination.

    The dates of the Wisconsin bar exam go largely unnoticed within its own state. The diploma privilege (the system under which Wisconsin licenses graduates of Marquette Law School and the U.W. Law School without requiring them to take the bar exam) means that a vast number of the Dairy State’s lawyers never have the distinct “privilege” of sitting for the two-day test.

    As a graduate of Southern Methodist University Law School in Texas, despite having been born and raised in Wisconsin, I had studied hundreds of hours for the test, sacrificing nights, weekends, and holidays. I became a regular at Starbucks and the local library. My every waking moment was dominated by the test. My wonderful wife supported me the entire way as I left her with our young son time and time again (although she did eventually impose a moratorium on me discussing the exam with her). I did not need to ask why I put myself through the ordeal. At 26 years of age, I have a wife, a young son, and a sizable chunk of law school debt. Failure, and unemployment, were not an option.

    Now working, I occasionally think back to the bar exam experience. I consider the subjects I pored over, the lectures I absorbed for dozens of hours. It seemed as foreign a world to the real practice of law as possible. I passed the bar exam, so it is without malice that I find myself putting ponderings into writing. Is the bar exam a necessary evil, the best of a bunch of bad options? Or is it instead a leftover monument, a vestigial artifice of a far more high-minded age of professional education?

    My conclusion is that the bar exam is a redundancy that serves to only further the economic burden of law school, at a time when applications to law school are at historic lows. The bar exam in Wisconsin should be eliminated entirely.

    There are really two schools of thought concerning the bar exam issue in the United States. One believes that the exam is a necessary benchmark to ensure that one of the most influential categories of professionals in America is armed with sufficient knowledge to stand in the world community as learned agents of American jurisprudence. The other says that the bar exam doesn’t do any of the things it says it wants to do and in the (expensive) attempt messes up a whole bunch of other things.

    Is the Bar Exam a Good Way to Ensure Lawyers Have a Minimum Pool of Knowledge to Practice Law?

    This seems like a good reason for a profession to have a certification exam. Lawyers guard other people’s legal rights. They direct corporations and individuals and businesses in the disposition of vast sums of money. They protect people from criminal allegations and ensure individuals’ last wishes are followed.

    However, what is the point of accrediting a law school then? Are they not also tasked with ensuring the competence of lawyers? Is the American Bar Association (ABA) not doing a good enough job auditing the quality of American law schools? If a student can graduate from law school, hasn’t he or she already shown he or she has what it takes? The answer to these questions is that the ABA does a fine job, and the bar exam does nothing to further ensure minimum competence.

    Does the Bar Exam Ensure Students Have Been Exposed to Areas of Law They Might Have Missed in Law School?

    The bar exam does, of course, ensure that students are exposed to areas of law they might have missed in law school; however, it is far too comprehensive. No lawyer would ever need to know even a fraction of what is tested (unless he or she ends up tutoring the prospective test takers).

    Michael LoCococom lococomichael gmail Michael LoCoco, Southern Methodist 2014, is with Peterson, Johnson & Murray SC, Milwaukee. His practice focuses primarily on insurance defense.

    There are 17 subjects in Wisconsin: torts, evidence, contracts, criminal law, criminal procedure, real property, constitutional law, civil procedure, personal property, income tax, commercial paper, secured transactions, family law, wills, trusts, corporations, and professional responsibility. Imagine you’re a defense lawyer, a trial attorney. You need to have a good grasp of five, maybe six of these subjects, but do you really need to know why a personal check has legal value? How to form a subchapter S corporation? It is needlessly cumulative.

    Moreover, the multistate portion of the test (the Multistate Bar Exam or MBE), 200 multiple-choice questions over six hours on the first seven subjects listed above, tests law that in some instances no longer exists. To deal with jurisdictional differences, the MBE tests common-law crimes. Wisconsin codified its criminal law ages ago; crimes are statutory offenses. In short, yes, the test exposes students to new areas of the law, but it is an exercise in inefficiency; it is far too broad.

    Does the Bar Exam in Wisconsin Ensure that Out-of-State Lawyers have a Good Grasp of Wisconsin Law?

    The short answer to that question is no. The long answer is that this might be a good point if you really needed to know Wisconsin law to pass the exam. You don’t.

    “The bar exam is a redundancy that serves to only further the economic burden of law school, at a time when applications to law school are at historic lows.”

    Consider this breakdown of the test: the MBE comprises 200 out of 400 points on the Wisconsin bar exam, half the points on the test. The other 200 come from essays. The MBE tests no Wisconsin law; it’s a national test. The essays usually (but not always) follow a format of six 45-minute subject essays (which do contain Wisconsin law) and one Multistate Performance Test (MPT). The MPT is a closed-universe question testing your ability to write either persuasively or objectively and to synthesize information quickly and accurately. No knowledge of state law is required.

    So the MBE is half the test, and the MPT is part of the other half. A student getting an average score on the MBE and a slightly-above-average score on the MPT needs only marginal scores on the essays, the only part of the test that actually deals with Wisconsin law. Moreover, partial credit is given for analysis and issue spotting on the essay questions. Thus, it is not mathematically necessary, and one might argue not remotely required, for a Wisconsin examinee to spend a single minute studying the areas in which Wisconsin law differs from federal systems or the Restatements. The argument that the exam ensures out-of-state lawyers know Wisconsin law doesn’t pass muster.

    Eliminate the Wisconsin Bar Exam

    I think it is reasonably clear that the bar exam is not efficiently or usefully fulfilling those reasons for its being, thus calling its necessity into serious question. Is it ensuring a minimum level of competence? Is it ensuring that out-of-state law students know Wisconsin law? It does neither of those things well. Many would argue the bar exam is an outdated monument that, in all practical terms, serves only to enrich powerful bar-exam-preparation companies. 

    The ABA’s accreditation criteria are more than strict enough to ensure a minimum standard of competence, especially because this is the only check on minimum competence that the currently existing diploma privilege provides (and apparently it is good enough for Wisconsin).

    There are strong economic benefits to consider as well. The test is a mammoth expense for the students taking it, in lost time, in bar preparation costs, and in delay they undergo in waiting for bar exam results so they can be sworn in to practice. Wisconsin returns results from the July bar exam in five to six weeks. That leaves nearly three and one-half months after graduation during which students from out-of-state law schools cannot practice as lawyers. Assuming a law student takes a job following passage of the bar and makes $60,000 per year, his lost time from graduation until the start of his work represents $17,500 in lost wages. Add to that $3,500 for bar prep costs. We’re left with a system in which students are expending the equivalent of a down payment on a new house or a car. Eliminating the bar exam would save students thousands of dollars that could be spent in the Wisconsin economy.

    Conclusion

    In today’s practice of law, we are continually required to justify our expenses. Law firms bill in six-minute increments. Methods of tracking time and work performed take up a significant portion of the day. Justifying expenses is a way of life for a lawyer. The bar exam should be no different. Its necessity and efficacy ought to be continually and stringently revisited. The bar exam simply does not serve any of the purposes its defenders task it with and should be eliminated unless something other than tradition can be conjured to justify it.




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