Legal Docket: Rewriting the bar

Editor's note: The following text is a transcript of a podcast story. To listen to the story, click on the arrow beneath the headline above.

NICK EICHER, HOST: It’s Monday morning September eighth and a brand new work week for The World and Everything in It. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Today on Legal Docket: the bar exam of the future.

It may not affect you directly, but if you hire a lawyer, it will certainly affect you indirectly—because the bar exam does shape who gets to be a lawyer, and how prepared that lawyer is to help you.

EICHER: For more than 30 years, most states have used the same test, the UBE: that is, Uniform Bar Exam.

Next summer that starts to change. A new version called the NextGen UBE rolls out in six states and four US territories. By 2028 it’s expected to replace the old exam nationwide.

REICHARD: The goal is less rote memorization and more practical lawyering.

WORLD legal correspondent Jeff Palomino talked to several people “in the know,” including a law grad from my very own alma mater.

KATIE GUNDERSEN: So, I take the bar exam the 29th of July and the 30th. Let me actually make sure that's true. Okay, yeah, yeah, okay, that's when I'm taking it. I know it's the last week of July.

JEFF PALOMINO: You can understand why Katie Gunderson is a little nervous. The new St. Louis University School of Law grad is halfway through a ten-week prep course for the Missouri Bar Exam. It’s not an easy process.

GUNDERSEN: It's a really daunting feeling. It's this idea where I've spent three years of my life working towards this goal, and now I have to actually show what I've learned… and prove that I can be a competent attorney…

It's exciting, because it's, I'm so close to the finish line, but it's, it's scary… I have to just kind of trust that I've learned and that my bar prep program will get me to the end.

Even as she studies, Gundersen wonders: How much of the bar exam is relevant to what she’ll do as a new lawyer?

GUNDERSEN: I think a lot of what the bar exam tests you on is these very specific situations or this very specific, …rule that maybe hasn't been used in 50 years, but it could come up, it probably won't come up, and it hasn't come up, but you need to know it, and you need to be prepared for it. I don't think it's going to be something that is applicable to once I'm actually practicing…

She’s not alone. Amit Schlesinger oversees the bar review prep course at Kaplan, an exam prep company. He says the current bar exam is designed with a particular focus and strategy.

SCHLESINGER: There's a lot to study and a lot to memorize. The traditional UBE, is heavily focused on memorization, right? There's 15 subjects. There's a lot of content to cover, and the way to pass the exam is to memorize a lot of law.

But lawyering isn’t just about recall of memorized law and concepts.

So what would a bar exam look like that puts legal knowledge together with legal skills?

That’s where the NextGen Uniform Bar Exam comes in. It’s the most dramatic overhaul to the test in decades.

JUDY GUNDERSEN: My name is Judy Gundersen. I'm the president and CEO of the National Conference of Bar Examiners.

The National Conference of Bar examiners helps states admit lawyers. Judy Gundersen, no relation to our aspiring lawyer Katie Gundersen, has been CEO for the last eight years.

The National Conference does many things, but they’re best known for developing the bar exam. The current exam - the U-B-E - is used by 41 jurisdictions, and last year, 48,500 people took it. So, let’s start with a basic question, “What is the bar exam?”

JUDY GUNDERSEN: Like every profession that we're aware of, in order to get a license, people have to pass a licensing exam. Sometimes it's called a board. Physicians do this, nurses do this, dentists do it, CPAs do it. Lawyers do it, too. And our licensing exam is called the bar exam.

The bar exam is given twice a year. Most take it in July. Seventy to 80 percent of candidates pass it the first time they take it.

The test is given over two days, testing knowledge on 15 legal subjects. The first morning is essays with performance tests in the afternoon. Day two is the multiple choice day. Schlessinger from Kaplan explains what that part’s like.

SCHLESINGER: That exam is a 200 question multiple choice exam, three hours for 100 questions in the morning, break for lunch, and then three hours again for 100 questions in the afternoon. That comes down to 1.8 minutes per question.

And that’s been the model since the late ‘90s. But seven years ago, the National Conference of Bar Examiners began to rethink things. They started by doing listening sessions with different legal professionals.

JUDY GUNDERSEN: And what came out of those listening sessions was more skills testing. We'd like lawyers to be able to be better equipped to handle client matters when they start in the profession.

In other words, the test, as currently designed, covered too many topics and not enough practical skills. A multi-year study followed. They asked over 15,000 newly licensed lawyers and supervisors of newly licensed lawyers some simple questions.

GUNDERSEN: What do newly licensed lawyers in the field do? What is important that they get right? How often do they do these tasks for this content? What do they need to know? What can they look up?

The result is a new, fully digital exam focused on just eight core subjects: civil procedure, contracts, business associations, constitutional law, criminal law, torts, and —starting in 2028— family law.

The new exam also tests seven foundational lawyer skills. Things like spotting legal issues, client counseling, and legal research.

Finally, the new exam shrinks to three, three-hour sessions as opposed to four, and each segment combines all three question types from the legacy UBE.

GUNDERSEN: In every one of those three hour segments, you have 40 standalone multiple choice questions, and you can start with those, or you can end with those.

There's a new kind of question that has not appeared on the bar exam before, and it's called an integrated question set.

There are two of those integrated question sets …And then there's one performance task.

Those new “integrated question sets” are designed to simulate a “day in the life” of a new lawyer. A client walks into your office, tells you about a dispute with her neighbor. The question may include additional materials like emails or witness statements and will go through several prompts.

At Kaplan, Schlesinger says the new exam means a re-do of their exam prep course:

SCHLESINGER: The new course has been designed really from the ground up, and focuses heavily on mastery of new foundational lawyering skills… So we're taking a learning first approach. Students begin their studies with all the learning of the content, the substantive law… up front in the course, and then they'll be getting a lot more practice rich exercises on the tail end.

Even with all the changes, he applauds what the NextGen UBE is trying to do.

SCHLESINGER: What the intention of the National Conference is, it's very noble one, is to be more practice ready, and practice as in practicing law ready, which should create an environment in the United States of new attorneys that are more capable on day one than they currently are on day one to practice law, which ultimately is to help people, help them get out of trouble, help them succeed in something, help them buy something.

Back to Katie Gundersen. The new grad did sit for the Missouri bar exam back in July. She knows next year her state will offer the NextGen U-B-E. She doesn’t really think about that, though.

Instead, she just waits for that email with her results. That should come any day. What will her reaction be if she passes?

GUNDERSEN: Oh, I think it will be a paralyzing joy…. six seconds of shock and then 45 minutes of screaming and calling… God willing, I will get that email.

The bar exam may be changing, but the feeling of passing? It won’t!

And that’s this week’s Legal Docket.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.