Legal profession watches bar exam closely for failure rates

As wannabe lawyers have for generations, Justin Mannino is approaching July with trepidation as he prepares for the three-day bar exam that he needs to pass in order to practice law in Louisiana.

But unlike previous years, law school deans, State Bar of Louisiana officials and the Louisiana Supreme Court justices have joined Mannino and his fellow recent law school graduates in worrying about passing the nine-part examination that begins July 22.

The elite of the legal profession hope the results of this administration of the recently revamped test will show if the passing scores required are too high, or if some other reason accounts for higher than usual failure rates.

“It’s just unfortunate that we have to be the guinea pigs, in a way, while they work out the kinks on what the right scoring method is. That is something you have to take into account in your studying,” said Mannino, who has been studying about 16 hours a day since graduating LSU Paul M. Hebert Law Center in May.

The high court made a number of changes to the exam, including adding multiple choice questions and giving greater weight to questions unique to Louisiana law. But the most controversial change seems to be requiring a minimum passing score, called a cut, of 650 – or 72 percent of 900 total points – rather than 630, which would be 70 percent.

“It’s a big change. Actually, it’s a sea change,” Southern University Law Center Chancellor Freddie Pitcher Jr. “The Supreme Court is taking a look at whether or not the exam should stay as it is with the same cut score or whether it should be adjusted.”

“The question we need to ask as a profession: is minimum competency demonstrated by a 650 score or a 630 score or really some other score altogether,” said Ronald J. Scalise Jr., vice dean for Academic Affairs at Tulane University Law School. “That’s the question a lot of us want to see the discussion revolve around.”

John Lovett, associate dean for Faculty Development and Academic Affairs at Loyola University New Orleans College of Law, said a lot of test takers score between 620 and 660. “The difference can be just a few points on each (of the nine tests). Having a slightly lower cut score may be somewhat fairer to those people,” Lovett said.

Called “the July Administration,” it will be the third sitting since the Supreme Court changed the bar examination. The goal was to bring Louisiana’s bar exam in line with the bar exams given in the rest of the nation, and to curtail test takers from gaming the system in order to eek by and win a license to practice law.

It had been hoped that the changes in the grading system would have resulted in about the same percentage of people passing the exam as before. But the results from the July 2012 administration showed an 11 percentage point drop to a 61 percent passage rate. The percentage of those passing in February 2013 fell even more, though the results of the winter administration are not statistically relevant for several reasons.

Nationally, the bar passage rate average is 79 percent. In Louisiana, the rate has hovered around 70 percent for the past decade, with the graduates of some law schools occasionally approaching the mid-80s.

Richard K. Leefe, president of Louisiana State Bar, was involved in the five-year effort to revamp the state’s bar examination.

“When this cycle goes by, we’ll have a much better view of what we did right and what we may need to correct,” said Leefe, who also is a name partner in Leefe Gibbs, a law firm based in Metairie. “We don’t want it (the passing score) to be too low and we don’t want it to be too high. But that is the Supreme Court’s decision.”

Louisiana Supreme Court Chief Justice Bernette J. Johnson refused a request for an interview through her spokeswoman, Valerie S. Willard, the high court’s deputy judicial administrator. Willard said Johnson told her that it is too early to discuss whether to change the exam and, if so, how.

But Leefe said, “From my standpoint, it is our burden to make sure that the people who have passed the bar, that we have certified are capable of practicing law and representing people in very important matters … that they have that basic competency.”

Exam graders had noticed that some of the test takers took only certain sections of the exams – “spotting” – and ignored other parts, Leefe said. To pass, a person needed only 70 percent correct on seven of the nine tests. Many exam takers would focus on seven sections and not even take the other two tests.

When coupled with “conditional” status, also allowed under the old system, a person could focus their studies on five sections, ignore the other four, then when sitting a second time, would only have to study for two sections to pass the seven tests needed for certification.

In addition to setting the passing score at 650, the Supreme Court also required people to take all nine sections of the exam and, for those who did not make the cut, to retake the entire exam, not just those sections they failed.

LSU Law Center Chancellor Jack M. Weiss, however, argues that the new method of scoring doesn’t really address spotting. But it does ostensibly make the test more reliable. The key issue is that those passing the exam show proficiency in Louisiana law, which in some cases, most notably civil law, differs significantly from the rest of the country.

“Most members of the public would expect that if someone is admitted to practice law in Louisiana, they have basic competence in Louisiana civil law,” Weiss said.

Suzanne Scalise, who as director of Bar Preparation and Learning Initiatives at Loyola University New Orleans College of Law helps graduating law students to pass the Louisiana bar. Scalise, who is sister of the Tulane Law vice dean, said the truth is bar exam scores aren’t a good indicator for who will excel in the practice of law. That comes from an ability to analyze legal issues coupled with experience and quality mentoring, she said.