Michigan’s legal community was shocked by the low pass rate on the July 2012 bar examination results which were released on October 26, 2012. Overall, only 55% of the test takers passed. First time takers did marginally better; but not as well as they had in previous years. What happened this term that is different from previous years?
- The Board of Law Examiners (BLE) stopped scaling scores. Scaling (i.e. curving) was a method designed to equalize scores over a period of time. The experience the BLE had led them to see that it was still essentially subsidizing low essay scores in order to promote pass rates in the state. In 2009, the BLE eliminated the automatic pass at 150 points on the MBE. Previous to that time, a bar examinee would take the bar exam, and if scoring above 150 points on the MBE, would have their essay scores review for effort, but not formally graded. This guaranteed a pass for those who did well on the multiple choice test. This was eliminated so that the examinees would be tested on their writing skills as well as their knowledge of Michigan law. The scaling of the essays was designed to build predictability into the scoring and have it even out over time.
What happened instead is that the problem that elimination of the automatic MBE pass of 150 points shifted the writing problem onto the essay scoring. In other words, the essay scores were subsidized by the scaling and that increased par passage to the scores seen over the last five years. This fall, the Board decided the quality of writing and knowledge of MI law was not being given enough emphasis. Thus, the BLE’s decision
2. The quality of writing has decreased. The bar examiners found that once they had began to grade this year’s tests, the answers we not being responded to in a meaningful and productive way. My office reviewed approximately 75 tests results and found that the scores were representative of what the bar examiners were presented from the applicants. On questions where there was some ambiguity, my office found a number of scores were graded upward in light of that ambiguity. In other words, applicants received the benefit of doubt in close call questions. Some of this year’s questions were difficult, such as the evidence question, constitutional law question and the criminal procedure question. However, those issues have been tested in the past and could have been reviewed as part of any applicant’s study program. It appears that applicants did not review older tests where the same or similar issues had been tested.
3. The quality of the answers seemed to have suffered for a lack of ability to analyze the facts based upon the law of the question. The core measure of any law student/attorney to be is the ability of the applicant to analyze the facts of the question. The MBE tests that in a finite manner. It gives you the facts and and possible analyses. The skill set tested is the ability to know the rule and identify the correct analysis that best matches the facts from the question. In an essay exam, the skill set is expressing the analysis in concrete written terms. This is a rather dry, technical form of writing which requires the applicant to be somewhat repetitive at times. However, this is the only way to have certainty that the applicant knows the law and can apply it. Time pressure forces the applicant to manage his or her time while taking the test and to bring a high degree of focus to a 2 to 3 hour period of time during the morning and afternoon sessions. Under this pressure, some applicants present conclusory answers failing to analyze the facts. The analysis part of the question is usually where the most points are awarded.
I do not believe the applicants are any less prepared than they were in previous years. The only problem that I could cite the BLE for is not communicating their expectations more clearly to the applicants. I do not believe there was unfair testing involved or a concerted effort to limit the number of lawyers practicing in this state. Rather it was a combination of a change in grading systems coupled with expectations that simply were not met.
Tim Dinan runs a solo practice focusing on Criminal and Civil Litigation. The firm also specializes in matters applications to the Michigan State Bar and character and fitness hearings. Mr. Dinan has successfully represented over 100 clients now licensed to practice law in Michigan.