State Bar to try psychology to boost test performance

In an effort to bolster performance on the July bar exam, the State Bar has agreed to let an outside research team provide willing applicants with a psychological boost beforehand.

A so-called "productive mindset intervention" will aim to have participants see challenges they encounter while studying as learning opportunities rather than failures and to focus their attention on areas that should lead to success.

"It is designed to improve the results for all bar takers, including ethnic and racial minorities," State Bar Assistant General Counsel Destie Overpeck said at a recent bar board meeting.

The project comes as passing rates on California's summer licensing exam have dipped below 50 percent in recent years, including a 32-year low of 43 percent in July 2016.

The researchers who will conduct the project hail from Stanford University, the University of Southern California and Indiana University.

Test takers who register for the July exam will be given the chance to opt in to the project. The intervention will be delivered entirely online and those who opt in will receive it via email in May, according to Overpeck.

The participating test takers will be randomly split up into two groups: those receiving the intervention and those in a control group learning study strategies.

"Productive mindset interventions help students appraise learning and performance challenges as common, surmountable, and even useful," Overpeck wrote in a memo to the bar's board.

In order to determine the effectiveness of the initiative, the scores of project participants will be evaluated. Overpeck wrote that if the project proves successful, "the goal will be for each California law school to offer the intervention directly to its students."

Law school officials said they welcomed the bar's project, while suggesting that additional steps are needed to raise the pass rate.

Professor Susan Bakhshian, director of bar programs at Loyola Law School, said her school and others already implement some mindset techniques to help students prepare for the bar exam.

"It's fantastic that they are looking into something we all know is important," she said. "The bar exam is such a grind, the study period is so long and the subject matter is so vast, that grit is such a huge part of passing."

David L. Faigman, chancellor and dean at UC Hastings College of the Law, said the bar exam creates a lot of anxiety for applicants because whether one will become a lawyer after three years of law school comes down to a two-day test.

He said efforts to help reduce that stress, such as the proposed mindset intervention, can be helpful.

"It is a good initiative to help anybody who is not performing up to their skill level due to a lack of self-confidence, lack of self-esteem or performance anxieties limiting their ability to shine as much as they are capable of," Faigman said.

He was among the law school deans who pushed last year for the nation's second-highest bar exam passing score to be lowered, but the state Supreme Court decided to retain the standard. Faigman said the high passing standard adds to the stress for test takers.

"It is greatly ironic they are trying to solve a test-taking anxiety that to some extent is created by the nature of the test they are administering," he said.

Mitch Winick, dean of state-accredited Monterey College of Law, highlighted how the bar produced data last year indicating that racial minorities would benefit the most from a lower passing score. The data also showed that Caucasians, on average, perform better on the test than minorities.

Winick said he hopes the mindset intervention could help produce greater diversity in the legal profession and enhanced access to justice.

"I think this is one of many efforts the State Bar should be considering to address what appears to be the adverse impact of the bar's testing methodology on non-traditional and minority students," he said.

State Bar Executive Director Leah T. Wilson recently told the board it had directed the agency's Council on Access and Fairness in March 2016 to advance a bar passage initiative with excess monies from an elimination of bias fund reserve.

The council, which works to ensure diversity in the legal profession, selected the productive mindset intervention after studying proposals.

The intervention project will be financed by a $125,000 grant the research team was awarded from the AccessLex Institute, a nonprofit that provides financial education resources and services for students and schools.

The research team is comprised of Professor Sam Erman of USC Gould School of Law, Dr. Gregory Walton of Stanford University, Dr. Mary Murphy of Indiana University, and Professor Victor D. Quintanilla of Indiana University Maurer School of Law.

Murphy will direct the data analysis needed for the study, according to a bar memo. She did not respond to requests for comment.

Overpeck assured the bar's board that any publicly released analysis of data from the project will be in compliance with privacy laws applicable to the bar.

"To protect the confidentiality of the data, the State Bar will remain in possession, control and custody of the bar exam scores and ensure that any State Bar data that is released is de-identified," Overpeck wrote.

The bar was previously sued for years of bar applicant data, including bar exam scores, by UCLA School of Law Professor Richard Sander. The bar prevailed in a 2016 trial, but the matter is on appeal. Sander v. State Bar of California, CPF08508880 (S.F. Super. Ct., Nov. 7, 2016).