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VOL. 35 | NO. 2 | Friday, January 14, 2011

Changes on tap for bar exam

By Judy Sarles

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In an extremely rare occurrence, the Tennessee Bar Exam is going through several major changes, including alterations in its composition and grading policies.

“It’s a big process to grade the bar exam for as many applicants as we have, so these kinds of changes are not taken lightly and they’re not done on a whim,” says Adele Anderson, executive director of the Tennessee Board of Law Examiners. “It takes quite awhile to make a change like this, and it has to be for a convincing reason.”

While it is unknown when the last major change to the bar exam took place, the composition of the exam and the grading policies have been the same since the time of Anderson’s arrival at the board in 1987.

Tennessee Board of Law Examiners administers the bar exam to recent law school graduates. It is a two-day, six-hour-per-day exam given twice a year (February and July). The exam is composed of the multiple-choice Multistate Bar Examination (MBE) and 12 essay questions.

The first change to the exam, the grading policy, will begin in February. Essay scores will be scaled to the MBE. For examinees to pass the exam, the two parts must have a combined total of at least 270 points – at least 135 points for the MBE and at least 135 points on the essays.

“Currently, all of the papers are graded pass/fail only,” Anderson says. “In the future, they will be given a number grade. Then we will turn in the number grades to the National Conference of Bar Examiners, and they will scale it to the MBE.”

Using scaled essay scores helps to eliminate an unintended advantage to some examinees and an unintended disadvantage to others, says Susan Case, director of testing for the Conference of Bar Examiners.

It was decided to change the grading policy because Tennessee was among just a very few states that weren’t scaling essay scores to the MBE. The Board of Law Examiners felt it was better for Tennessee to be part of the majority once the board realized the state’s minority status.

“I don’t think we were quite aware of how much in the minority we were,” Anderson says. “We were at a meeting of the National Conference of Bar Examiners, and it became very obvious at that meeting. The decision makers of the Board of Law Examiners were in attendance at that meeting. So it became quite clear that it was something that we needed to do.”

With the change in the composition of the bar exam starting in February 2012, Tennessee is moving forward to align with a national effort to have all states adopt the Uniform Bar Exam (UBE), which the Conference of Bar Examiners defines as a particular configuration of tests. Adoption of the UBE would allow law school graduates to take the exam in Iowa, for example, and passage of the exam would be acceptable in Tennessee, except for a state ethics examination requirement. The new Tennessee Bar Exam format beginning in 2012 will be MBE, Multistate Performance Test, and nine state essay questions.

“We’re not ready to go to the Uniform Bar Exam at this point, so we are adopting the Performance Test, which is part of that,” Anderson says. “In the future, we may adopt some of the multistate ethics questions as well. We’re just taking it one step at a time. If we like it, if we think it’s a good thing, we’ll keep it. If we don’t, we won’t do it; we’ll go back to what we had.”

Also in February 2012, the state bar exam is changing from a Wednesday/Thursday schedule to a Tuesday/Wednesday schedule. By contract, the Multistate Performance Test will be given on Tuesday, along with the essay portion of the exam. The contract is with the Conference of Bar Examiners. The Conference creates the Multistate Bar Exam and the Multistate Performance Exam, distributes the exams, and grades them. The Board of Law Examiners grades the essay portion of the Tennessee Bar Exam.

The Multistate Bar Exam will be scheduled on Wednesday. Because of the change in the Tennessee exam schedule, examinees will no longer be able to take two different state bar exams concurrently. So if Mississippi’s exam is on Tuesday, the same day as Tennessee’s, it would be physically impossible for applicants to take both exams.

Also in 2012, the essay regrading process is being eliminated. Currently, when regrading the essay portion of the exam, the board looks at failed exams a second time to determine if an exam really should have received a “fail.” With the change in the grading policy, papers will be given a number value instead of being designated pass or fail, so the chances of getting a higher score are better because points are given for every essay, unless a blank sheet of paper is turned in.

“Now, you’re at least getting some acknowledgement for something that you wrote,” says Anderson. “So someone who wrote two sentences and was absolutely wrong would probably have a ‘one,’ someone who wrote nothing would get a ‘zero,’ but that one point may push you over the top.”

One other aspect of the bar exam is being discontinued. Applicants will no longer be able to receive requested copies of their failed essays. The testing division of the Conference of Bar Examiners advised the board that providing the copies for study is not helpful since different essay questions are asked each time the exam is taken.

Through all these changes, Tennessee is testing the waters to see if the Uniform Bar Exam, which has been adopted by Missouri and North Dakota, would be a good fit for the state. There are also about five test states that have reacted favorably to the idea of a UBE and are taking their proposals to their court and state bars, essentially working the methods for gaining approval for the bar exam.

The UBE’s goal is more consistency in the requirements for bar admission throughout the United States. It will become easier for an examinee who took the UBE in one state to search for jobs in other states or to work for a firm that has clients in several states.

“The Uniform Bar Exam is beginning to gain some traction around the country as a way to give new graduates out of law school a little more opportunity for mobility across state lines, at the point where they’re just getting first jobs and just finding out where they’re going to live after law school, so they don’t have to go through essentially repeat experiences with the bar exam state after state,” says Erica Moeser, president of the National Conference of Bar Examiners.

“So many of them have difficulty, especially in this economy, landing a job at the point where they’re taking their first exams, so they may end up taking their first exam in a state where they don’t get a job.”

The Conference of Chief Justices and the American Bar Association Council of the Section of Legal Admissions to the Bar have adopted resolutions endorsing consideration of a uniform bar examination by each state and U.S. territory, but the Tennessee Bar Association has not formally taken up the issue of the UBE.

Although the exam has “uniform” in its name, the exam probably won’t be entirely standardized, since each state likely will have some local elements incorporated in their bar exam and law licensing requirements.

There are three legs to law licensing in each state. One is education, the second is examination, and the third is character and fitness.

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