Some unintended(?) consequences of California’s inflated cut score

Like many, I found the 27.3 percent February 2018 bar pass rate distressing -- particularly because some of the 2,644 unsuccessful repeat takers are my former students. And like many, I question if it isn't time we reduce California's cut score.

Twenty law school deans, including my own, have advocated forcefully -- but unsuccessfully -- to lower the California passing score of 1440 to something more in line with national median, 1350. I won't repeat their arguments. Rather, I'd like to offer my own perspective as someone in the trenches -- if not crosshairs. I teach at a law school with a strong public mission, committed faculty, a diverse (and awesome) student body, and -- over the past few years -- declining bar pass rates. Because I teach Evidence, a double-tested bar subject, I feel some responsibility to improve those rates.

At the same time, particularly because I am a clinical professor, I feel responsible for teaching students to be competent lawyers. Now that private firms and public-interest law offices are no longer willing to spend time and money training new attorneys, they have put pressure on law schools to produce practice-ready graduates. I have welcomed this pressure and embraced the tools by which various entities have attempted to close the classroom-skills gap, including the revised ABA standards, Shultz and Zedeck's Lawyer Effectiveness Factors, and the Educating Tomorrow's Lawyers project.

But these two mandates -- teach students to pass the extraordinarily difficult California bar exam and teach students how to be lawyers -- are worse than inconsistent; they are nearly incompatible.

My zero-sum dilemma: trying to teach students to pass the bar and to be good lawyers. Although the pressure to teach to the bar has affected my clinical teaching, I will limit my comments to Evidence, where the impact is starkest. Here are some curricular changes I have made in the past three years in an attempt to better prepare my students for the bar.

• My final exam used to be open-book, because, when faced with an evidentiary issue, competent lawyers begin by reading the rule and associated case law. Now it's closed-book, because the bar is closed-book.

• I used to ask a series of short-answer questions on the exam, because I felt that replicated how evidence issues arise in trial: You make and respond briefly to objections. And I included an open-ended essay, where students had to articulate their opinion of a rule of their choice, in light of the underlying purposes of the Federal Rules of Evidence, other policy concerns, and their own views -- the kind of thinking required in appellate practice. Now my final is 50 percent multiple-choice questions and 50 percent bar-style essays, because that's how the bar is.

• I replaced my collaborative, written, practice-oriented midterm (drafting a motion in limine to admit evidence under FRE 404(b)), with a closed-book, timed multiple-choice midterm.

• A guest lecturer now teaches a class on "How to Approach a Bar Exam Evidence Essay."

• I assign an ungraded bar-oriented practice exercise, where students have one hour to answer an old bar essay. Teaching assistants and I provide individualized written feedback on this exercise to each student and the TA's meet with each student.

• I have revised course coverage to more closely match subjects tested on the bar (e.g., I now teach judicial notice and presumptions) and to deemphasize those topics that are primarily useful only for practice (I now omit how to draft a litany to lay the foundation for an exhibit).

• I IRAC Evidence fact patterns in class -- constantly. And I use polling software and project multiple choice questions to get students used to picking A, B, C or D.

On top of these efforts, I also try to address my students' bar-related psychological needs. I try to encourage a growth mindset; I try to mitigate stereotype threat; I try to build in the occasional mindfulness exercise to alleviate anxiety. I refer some students to the counseling center; I urge all of them to meditate, exercise, eat right, and sleep. None of this is part of my training (I'm a lawyer, for god's sake), or my nature (I'm a New Yorker, for god's sake). But it seems important, because from what I can tell the bar exam is psyching people out. (For this reason, I appreciate the intent behind the State Bar's new "Productive Mindset" initiative, although it's hard not to see it as an attempt to mitigate, via 10 years of research and online attitude-shifting exercises, what is arguably a problem of the State Bar's own making.)

I don't object in principle to helping my students pass the bar; I have always seen that as part of my job as a law professor. But the above curricular changes come at a cost. There are only 52 instructional hours in the semester. Because we focus so much attention on bar prep, I have had to eliminate many of the experiential exercises I used in the past. Student volunteers used to argue 403 objections, deliver closings, and conduct witness examinations to meet or defeat a hearsay exception. Now we just IRAC, IRAC, IRAC.

We are protecting potential clients and the public from bad test-takers, not bad attorneys. And I wouldn't object to having to teach to the bar -- or object to the extraordinarily high cut score -- if the exam tested the skills needed to be a competent attorney. But we all know it doesn't. I therefore applaud the State Bar's decision to study how the bar exam's format and content align with the knowledge and skills entry-level attorneys need. But while we wait for that answer ("not well"), it seems counterproductive, if not cruel, to maintain the current cut score.