Attorneys don’t pretend that passing the bar exam is easy.
But those who have taken it in Wisconsin, especially during the last four years, make it seem that way. Since February 2007, passage rates in Wisconsin haven’t dipped below 85 percent for either the winter or summer exams, including a 10-year high of 92 percent for the July 2010 version.
Board of Bar Examiners chairman James L. Huston attributed the rise to a change in the scoring system. Under the previous system, regardless of how high the multiple choice score was, the test could not be passed without a passing grade on five of the eight essay questions. The new scoring system simply requires a 258 total.
“The reason we got rid of (the essay requirement) is because it wasn’t fair,” Huston said.
Grading the written element of the exam lacked the reliability of the 200-question multiple-choice portion, said Huston, and therefore made a minimum passage requirement arbitrary.
The goal of the exam is to have it graded consistently every year, but there is no guarantee of that with essays, depending on the questions and who grades them.
“In case of the multiple-choice exam, there is no problem with grading it because either you get the right answer or you don’t,” Huston said. “With essays, it’s altogether different.”
Marquette University Law School Dean Joseph D. Kearney served on the BBE from 2002 to 2007 and was one of the driving forces behind the change. Kearney said the problem with the previous scoring system was that because there was no minimum score on the multiple-choice section, the essay portion was too heavily weighted.
“There was no reason to think that the essays were a more reliable indicant of competence to practice law than the multiple-choice portion, and we decided that the best indicant was the two scores taken together,” he said.
While the elimination of the minimum essay requirement was made in the interest of fairness, passage rates have spiked since it was eliminated. In 2007, the first year without the requirement, 89 percent of those who took either the February or the July exam passed, compared to 70 percent and 83 percent in 2006.
Huston said the percentages support the notion that the bar is easier to pass. The board considered raising the minimum passing score, but opted against it after a pair of 2009 articles from the National Conference of Bar Examiners (NCBE) indicated that passage of the exam is not a predictor of an attorney’s success.
“There was some sentiment to make a change, until those articles came out,” Huston said. “If a bar exam does not identify that people will not be successful as lawyers, then what’s the point of raising the score?”
Among those who avoided the mandatory essay requirement was Oklahoma City University Law School graduate Christopher L. Wiesmueller, who passed the bar in July 2007.
He conceded that the change likely increased his odds of passing on the first attempt.
“It certainly helped me to not have that requirement there,” Wiesmueller said.
But there is concern that the absence of a minimum essay standard lessens the importance of the written portion.
Attorney Geoffrey S. Trotier passed the bar in 2003 and argued that the written portion of the test is a better indicator of a lawyer’s legal intellect than filling in the blanks.
“The practice of law is not multiple-choice,” he said.
“Theoretically, you could do extremely well on the multi-state and really bomb on the essay, including completely failing to respond to a professional responsibility question,” Trotier said. “That’s kind of disturbing.”
But Huston noted than there isn’t always an ethics essay question even on the exam, and the written portion of the test still counts as 50 percent of the total grade.
The essays draw on questions from 13 different areas, including evidence, constitutional law, civil procedure and professional responsibility.
Wisconsin’s written portion of the bar exam typically includes parts of the Multistate Essay Examination (MEE) and Multistate Performance Test (MPT) as prepared by the National Conference of Bar Examiners (NCBE).
While Wisconsin is currently among 23 jurisdictions that utilize the MEE, the weight placed on that requirement is not universal.
For example, Wisconsin weighs the Multistate Bar Examination (MBE) and written component of the bar exam equally, but the MEE only accounts for 37.5 percent of the written portion, according to the National Conference of Bar Examiners’ 2010 Bar Admission Requirements report.
In the event that an MPT question is included, it is given double the weight of a typical essay question, but the written portion never accounts for more than half of the total grade.
The NCBE determined that anything above 50 percent skews the reliability of the exam.
But simply having a one-question exam would be equally unreliable, said Huston.
Along with the variety of questions on each exam is the inevitable grading inconsistencies, which Huston said were meant to be diminished by the change.
“We work hard to calibrate our graders and work together to be consistent,” he said. “But it’s impossible to be perfect on that.”
Kearney said the new system should be a more accurate indication of a potential attorney’s competence, but did concede that it is a judgment call.
“I suppose that the selection of any particular requirement such as the 258 could be deemed in some senses to be arbitrary,” he said, “whereas in fact what it reflects is the board’s best judgment as to a score one should have to demonstrate competency on the exam.”
Jack Zemlicka can be reached at [email protected].