1l Is the New Bar Prep

• Publication year: 2022

51 Creighton L. Rev. 37. 1L IS THE NEW BAR PREP

1L IS THE NEW BAR PREP

SABRINA DEFABRITIIs(fn*)

ABSTRACT

Law school graduates, in growing numbers, are failing the bar exam. This reality is all the more staggering when we consider that these graduates have been preparing for the bar exam since their first year of law school. First-year legal-writing courses teach students specific fundamental skills that are the foundation for success on the bar exam. This Article provides the perspective that the goal of passing the bar exam and teaching law students to think and write like lawyers is a symbiotic relationship. It directly analyzes the correlation between the fundamental skills associated with thinking like a lawyer and successful bar-essay writing.

The question then becomes, if law schools are teaching these skills, why do students continue to struggle with the bar exam? To answer that question, this Article analyzes the challenges law students face when they are required to apply the skills learned in an earlier context to a later assignment. Without proper instruction and sustained practice, it is unrealistic to expect law students to retain the skills necessary to solve one legal problem and then later apply those same skills to solve a different problem. This Article emphasizes how law schools have a duty to bridge the gap and foster the transfer of learning from the first year of law school to bar preparation. To guide law schools in better preparing their students for passing the bar exam, this Article concludes with a comprehensive approach detailing how law faculties can facilitate the transfer of fundamental skills from the beginning to the end of law school.

"By failing to prepare, you are preparing to fail." -Benjamin Franklin

I. INTRODUCTION

"I make you two promises: first, you will work much harder in this class than you ever wanted to at this point in your law school career; second, this class will prepare you for what is to come next in your career more than anything else that you are doing right now." I say this to my students at the beginning of their first-year legal-writing course and again in a for-credit bar preparation course during their final semester of law school. While the courses and time-periods in law school may seem worlds apart, at their core, the skills we teach our students in their first-year legal-writing course, in terms of writing, professionalism, and practice skills in general, lay the foundation for success on the bar exam.(fn1)

Why is it, then, that law school graduates, in growing numbers, continue to struggle with passing the bar exam?(fn2) It may be in part the result of a false presumption that the fundamental skills taught during a law student's first year need not be explicitly connected and carried through to upper-level courses.(fn3) This presumption is further fueled by the pejorative connotation associated with teaching to the bar. The stigma of teaching to the bar "stems from a belief that academically rigorous schools do not need such preparation because the quality of legal instruction should be sufficient to ensure bar passage."(fn4)

Despite the offense that law faculties take to this notion, the bar exam, for better or worse, is a reality for the majority of law school graduates.(fn5) Ultimate success for many law students is measured by the ability to competently practice in the legal profession, which first requires passing the bar.(fn6) Therefore, law schools have a duty to not only enhance their teaching in order to achieve the objectives of a traditional law school education, but also to better prepare their students for the bar exam.(fn7) This duty is all the more crucial in light of the recent American Bar Association ("ABA") proposed rule to tighten the bar exam passage standard that schools must meet in order to maintain accreditation.(fn8) If passed, this new rule would mandate that at least seventy-five percent of a law school's alumni pass the bar within two years of graduation, rather than the current five-year period.(fn9) The proposed rule will also eliminate two provisions: (1) a provision that allows law schools to meet the bar exam passage standard if its first-time bar pass rate is within fifteen percent of the statewide average, and (2) a provision enabling law schools to meet the standard based on data from only seventy percent of graduates.(fn10)

This Article is not a blanket endorsement of the bar exam; rather, it provides the perspective that the goals of passing the bar exam and teaching law students to think and write like lawyers are symbiotic rather than oppositional. This perspective is consistent with Revised ABA standard 301(a), which provides that the new goal of legal education is to prepare "its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as a member of the legal profession."(fn11) Preparing students to pass the bar exam need not "convert law schools into bar exam schools," but rather serves to enhance the preparedness of legal professionals of the future.(fn12) Part II of this Article addresses the concept of thinking like a lawyer and the skills new lawyers should have when they begin to practice law. Part III demonstrates how first-year legal-writing courses lay the foundation of the fundamental skills necessary for the practice of law. Part IV first provides a brief history of the bar exam and its component parts. It then discusses the applicability of the fundamental skills identified in Parts II and III to bar-essay writing. Part V examines the challenges law students face when they are required to apply the skills learned in an earlier context to a later assignment. Finally, Part VI provides a comprehensive approach to bar exam strategies that law faculties can employ throughout law school, as well as more specific suggestions on how to help students transfer the skills learned during their first year to help them pass the bar exam.

II. THINK LIKE A LAWYER

Law schools are professional institutions with the purpose of producing "graduates who possess the skills, knowledge, and values necessary to be successful legal professionals."(fn13) An often-cited goal of legal educators is to teach students to think like lawyers.(fn14) While this goal is unanimously accepted, there is less uniformity as to the exact definition of what it means to think like a lawyer.(fn15) There are some who describe the skill as the ability to think "with care and precision, distinguish good arguments from bad, and analyze the facts and evidence presented in the case."(fn16) There are also some who focus on the importance of language and an "understanding that words can have myriad meanings and can often be manipulated."(fn17) And there are others who focus on the ability to identify and diagnose problems, generate alternative solutions, develop and implement a plan of action, keep an open mind, and think strategically.(fn18)

In the broadest sense, thinking like a lawyer means "thinking logically and precisely about issues that arise in a legal context."(fn19) That is what law schools do. They do not teach their students to memorize laws; rather, they impart them with the knowledge of how to use legal doctrine.(fn20) "[R]eal-world lawyering is not simply about 'knowledge of substantive law.'"(fn21) Recent graduates must arrive at their new careers with the ability to think like a lawyer and do so independently with little help from senior attorneys.(fn22)

To achieve this level of independence, new lawyers must bring with them certain fundamental skills. While legal professions vary in scope, there is consistency in the fundamental skills that new lawyers are expected to bring with them, including the ability to think critically, read critically, and communicate clearly and effectively.(fn23) New lawyers must be able to use deductive, inductive, and analogical reasoning so that they can effectively contemplate, process, and understand information.(fn24) Empirical research conducted using practicing attorneys supports these positions and further demonstrates that employers prefer attorneys who have strong fundamental practice skills, including effective written and oral communication skills, research, problem solving, and analytical skills, as well as professional skills, including a strong work ethic, willingness to take the initiative, and the ability to adapt to the demands of supervisors.(fn25)

Consistent with the concept of thinking like a lawyer and employers' expectations of the fundamental skills new associates should bring with them, it is evident that effective and successful legal education requires the development of both fundamental practice and professional skills.(fn26) The foundation for these skills is laid in the first-year curriculum. First-year legal-writing courses teach, foster, and help students begin to master many of the fundamental skills commonly identified as necessary for the practice of law, including the ability to read critically, recognize material facts, identify issues, synthesize rules, analyze issues, apply legal principles to the material facts, and present a comprehensive and concise final product in a timely fashion.(fn27)

III. FIRST-YEAR LEGAL WRITING

Historically viewed as a mere recordation of previous analysis and graded on how correctly that analysis was reproduced, modern-day legal writing has evolved and is now "viewed as part of the process that creates...