Some Thoughts about the Bar Exam and UWLA

A student sent me the following comment to my last post about whether the bar exam specs should be lowered (no – says I).

what do you think about this argument from two years ago?
http://www.newsweek.com/bar-exam-unfair-and-undemocratic-322606

The post and the article is thought-provoking and I appreciate the comment.
The article makes the following comments:

  • The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market.
  • {T]he bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.”
  • The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree.  Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam.

I have thought about my response for a day or so now.   I personally believe that the people of color in this country “have been given a bad check” as Martin Luther King said in 1963 when I was in grade school.  It is a national shame that we as a country cannot and do not do more to fix this.   That is one reason I continue to teach at UWLA.   (Make no mistake, the biggest reason is the Chatsworth campus is so close to my home.)  But I do enjoy doing my little bit to help people of color and those who want to be an attorney but cannot get into or cannot afford the major schools.  UWLA creates a nice and very much needed niche providing an opportunity to become an attorney to those who, again, cannot get into or cannot afford the major schools.

It is a national disgrace in my view that students finish school saddled with so much debt that most are going to be poor for years to come.  Believe me, as a bankruptcy attorney, and as a dad who guaranteed hundreds of thousands of dollars of student loans, I am familiar with the situation the (former) student finds themselves in.  It is just not worth it to finish school with two hundred thousand dollars of debt  hanging from your neck.  UWLA provides a good basic law school education at a price no where near the more illustrious schools.  The tuition at UCLA Law next year is $46,115 (tuition only);  Loyola is $34,690;   Southwestern is $50,690.   Unbelievable eh!

I have absolutely no doubt that UWLA puts out excellent attorneys.  My former student Roksana has been my associate (and now my law partner) since she was a student of mine at UWLA 8 or 9 years ago.  I tell everyone that if I am ever charged with murder, she will be my lawyer.  My partner Matt Resnik graduated from UWLA.   We have one other attorney from UWLA, Russ Stong.

What does all of this have to do with the bar exam you ask?

First of all, I would be totally for a requirement that a graduate must work for an attorney for a year or two before punching their ticket to practice on their own.  But that is obviously impossible.  I hung out my own shingle in 1980 and that’s one of the dumber things I ever did.  My first case was a divorce.  I had no idea where to get the forms.  I had no idea which court to file the petition in.   I had no one to ask.  I certainly knew Marbury v. Madison and International Shoe and the criminal exclusionary rule but I never even saw a complaint that was filed in court.  I was really only faintly aware that you “file” a “complaint” to start a lawsuit.  Looking back, it would have been better to work for free and some firm or public organization rather than try to play lawyer on my own.

(Get to the point will ya Jim!)

Without a doubt, passing the bar exam did not make me prepared to be a lawyer.  It will not make you prepared.

But in responding to the proponents of lowering the bar exam specs (to do what?), I think about being a lawyer in this mess of a legal system we have today.  People come to me to solve a personal problem they have in the context of the legal system.  I have saved a lot of people’s homes in my years.  I have told many people they have to move, that I can’t save their homes given the bankruptcy code, the bankruptcy rules, the local rules, the local-local rules, the judges, the court clerks, the forms, the cost, the creditor’s attorneys opposing what we do, the appeals even when we are right.

In this context I think about my students.  I think about the many former students I have had who see me in court and come up to me and tell me they were my students and are practicing now.  I am proud of that.   In my typical class now, at a minimum, an absolute minimum, half the students are on the internet or their cell phones and paying no attention to what I am saying.   Those students of course are learning absolutely nothing.   The reason I started giving mid-term exams is that are so many students each class who don’t realize they are learning nothing.  A quarter of the students read the cases I assign, listen in class, ask questions.  Those students do well on the exams, and will do well on the bar exam and will become good attorneys and will say hi to me some day in court.

So the comment from the Newsweek article, “The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market” is ridiculous.   It is a mechanism for excluding those who think that since they paid for law school, showed up at least the minimum number of classes, did at least enough work to not flunk out, they deserve to get a license and go out there and charge people to save their homes, or keep them out of jail, or get reimbursement for their injuries in a car accident.  They want to compete with me.   And this pesky bar exam, a test which does nothing more than establish that there is a basic understanding of the basic legal concepts and a very basic ability to use those concepts to help people, “can’t they make it easier so I don’t have to make so much effort passing it?”

I repeat what I said in the last blog,

My students have heard me say many times over the years that the bar exam is a function of effort.   You will pass the bar exam if you make sufficient effort.  If you have finished law school and got at least Cs in the foundational courses, Contracts, Property, Constitutional Law etc you will pass the bar exam if you prepare properly.

I have to conclude that I believe the proposition propounded by the two professors from Pepperdine.  That lowering the pass level of the bar exam will result in more attorneys who are going to be a problem for the rest of us in the legal industry.

I have to add a last thought.  I spend nearly all of everyday in my office either thinking or typing.  I don’t spend anywhere near as much time on the telephone any more because of email.  Nearly everything I do is in writing.  If you don’t have the basic ability to write a sentence and a paragraph, to communicate in writing, you really should find a different pursuit.  In my first year at Gonzaga, I took some test and based on that they made me take a remedial writing class.  One of the best classes of my life.  I beg of you to spend more time and make more effort to write well.  That means at a minimum, read what you write.  Go back and make it better.  Someone asked Antonin Scalia once if he enjoyed writing.  He thought about it and answered, “I enjoy having written.”  He enjoys the product, not the struggle to get there.  He said, “the only reason I finish anything is my students wrest it away from me.”  He makes revision after revision after revision until his clerks say enough.      I have reread this blog ten times now.  I should send it to Roksana because she always finds typos.

Looking forward to your comments.

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