Some Thoughts on In-House Bar Prep Courses

When I went to law school (I graduated from Harvard in 1994), no one ever mentioned the bar exam.   In fact, I don’t remember a single one of my professors discussing what subjects from their course were likely to be covered on the bar exam, for example.  That is not to say that what they were teaching us was not useful preparation for the bar exam or that the courses didn’t cover some of the material that we needed to know for the bar exam, because it was and they did.  My professors taught us how to think critically, how to approach problems from different perspectives, how to apply law to facts.  Along the way, we learned quite a bit of substantive law as well.  I had Arthur Miller for Civil Procedure, a year-long course.  He taught exclusively using the Socratic method.  There were no handouts, and certainly no PowerPoint slides (was PowerPoint even invented back then?), but he was the best teacher I ever had.  He inspired us, partially through fear and intimidation, partially through a desire to please and impress him, and partially by setting an example of meticulous preparation and consummate professionalism, to study harder than we ever had before.  And I learned a lot of civil procedure.  

In my third year of law school, I signed up for the Pennsylvania and New Jersey bar examinations, which were offered back to back, and enrolled in BarBri, which my father, then Dean at Widener Law School, assured me was far and away the best bar prep course available.  I followed the BarBri program and I easily passed both bar exams.   I felt at the time that I probably could have just skipped the last two years of law school and passed the bar just by taking BarBri, because the subject matter review was so comprehensive, and because I had mastered the basic form of the law school exam essay by the end of the first year.   I do not mean to imply that the last two years of law school were a waste of my time.  Quite the contrary,  I look back on those years as one of the most fulfilling and exciting times of my life, and I learned a lot.  My point is that I took hardly any courses that were bar-tested in my second and third years, so the bar review was mostly a review of my first year courses.  

When I started teaching law in 2005 at Western State University College of Law in Fullerton California after a decade of practicing law, I quickly realized that for students who are not naturally gifted standardized exam takers and essay writers, the standard bar review course at the end of law school was, in many cases, not enough to help them achieve a passing score on the bar.  This was especially true in California, where the exam was longer (3 days), more difficult (with a higher cut line) and tested more topics than the bars I had taken.  

One potential method to help prepare students for the bar exam was to provide an in-house bar review/bar prep program to be taken prior to graduation, before the student started the traditional bar review course.  For a long time, the ABA Standards did not permit students to earn credit towards graduation for such a bar exam prep course.  This rule was modified in 2004-5 to permit students to earn credit for an in house bar exam prep course, but the credit couldn’t count toward the minimum classroom instruction time required by Standard 304, and law schools were not permitted to required a bar exam prep course as a condition of graduation.  As a result of these rules, in house bar prep programs in 2005-2007 largely consisted of sparsely attended voluntary evening and weekend workshops. In the summer of 2008, ABA Standard 302 was revised (by eliminating Interpretation 302-7) to permit bar preparation courses to be offered for credit, to allow such credit to count towards the minimum requirements for graduation, and to permit law schools to require such courses to be a required part of the curriculum for some or all students.   

At Western State, we immediately took advantage of this rule change to create a for credit course called “Bar Studies.”  This course was one component of our comprehensive approach to raising bar passage rates at Western State, which raised the rate from 28% to 80% in five years.  Another aspect of the program was contracting with BarBri to provide an enhanced bar review course tailored to  Western State students that provided more essay practice, more essay grading and additional one-on-one feedback from instructors to give the bar review course a more personalized feel and improve the confidence level of our graduates.  Because the BarBri program was demonstrably more effective than their competitors at preparing Western State students, we even provided a subsidy to students who took the BarBri course.  Another aspect of the program was getting students to work harder throughout law school through our Foundation Law Points program, which I have written about previously on this blog.   There were several other elements to the program, including personalized bar counseling, and the opportunity to retake bar-tested classes in which the student had done poorly.  The comprehensive approach worked, and Western State’s bar passage rate climbed steadily.  However, because all of the elements of the program were incorporated simultaneously, it was difficult to determine which elements of the program were most effective.  One thing that was clear was that the bar studies class, which was very intensive and involved many graded practice essays, was highly effective.  We were able to measure this by comparing students who took the course against those with similar cumulative GPAs that didn’t.  Those who took the course fared significantly better on the bar.

This experience convinced me that a well-designed in house bar preparation program including for credit bar review courses could be highly effective in raising a law school’s bar pass rates, and was essential for a law school with a high number of at risk students.  A new article by Professor Mario W. Mainero bears this out.  Professor Mainero, Professor of Academic Achievement and Director of Bar Services at Chapman Law School in Orange, California (about 15 minutes from Western State), has just posted his article, entitled “We Should Not Rely on Commercial Bar Reviews to Do Our Job: Why Labor-Intensive Comprehensive Bar Examination Preparation Can and Should Be a Part of the Law School Mission”  

The article examines bar preparation programs generally and proposes some minimal, necessary components for effectively functioning programs.  It also surveys previous literature on the subject and presents new data from Chapman on the types of approaches that seem to bring the best results – including a focus on time-intensity and multiple practice exam administrations.  

As Professor Mainero notes, the well-documented lowering of admission standards at law schools across the country has led to a decline in the overall preparedness and test-taking skills of law students.   This drop in capability has already manifested itself with dropping bar passage rates.  To counteract this trend, it is incumbent on law schools to not only provide robust academic support programs, but also effective in house bar preparation programs.  Professor Mainero’s article offers several useful suggestions of how to design such a program. 

According to Professor Mainero, a “principal purpose of the article is to invite other school bar preparation administrators to share their own experiences so that we can all learn from each other in our efforts to improve the overall education of our students, including their preparation for the bar exam.”  This is a worthy goal.  I invite those with good ideas to share them in the comments, or to contact Professor Mainero directly.

Comments

[Scott Fruehwald]

Do the in-house bar courses use time that should be spent learning other things?

[anon]

Do you have any evidence that increasing the bar passage rate for the kinds of students admitted to such a low ranked school makes these students decent lawyers?

in other words, just pumping them full of the specific data needed to pass a particular exam just in advance of the exam doesn't tell me anything about what kind of lawyers they will be.

It does keep Western in business, I suppose.

[David Frakt]

Scott F - Typically 3Ls have plenty of room in their schedule for elective courses, so a for-credit bar prep course would supplant one of these.

Anon - There are several hurdles to becoming a lawyer. You need a JD from an accredited school, you have to pass the MPRE, you have to pass the character and fitness certification process, and you have to pass the bar. Your suggestion is that an in-house bar prep course might help students who are not really smart enough to be lawyers to become lawyers. I think of these programs more as helping students who are smart enough to become lawyers to become lawyers. While some kinds of work that attorneys do require a very high level of intellectual firepower, many kinds of law practice do not. I believe students of modest intellectual ability who demonstrate the drive and work ethic needed to become lawyers will probably make perfectly decent lawyers, but I don't know of any way of measuring this. Law schools that are admitting students of modest ability and charging them very high tuition rates should be obligated to do everything possible to help these students realize their dream.

[JM]

David, the question has been posed to your numerous times now, and given the topic of this post, I think now is as good a time as any to answer it: what benefit is passing the bar exam when there is almost no chance for the great majority of graduates of these schools will ever obtain jobs as lawyers?

I hope you realize that there are tens of thousands of unemployed recent law graduates from top 100 law schools for whom passing the bar was easy.

[David Frakt]

JM -

I consider it to be a massive overstatement to say that "there is almost no chance for the great majority of graduates of these schools will ever obtain jobs as lawyers." I think it is fair to say that many graduates of lower ranking law schools will find it difficult to find employment immediately upon graduation and passing the bar. Students who do poorly at middle ranked schools will also have difficulty finding employment right away. I realize that there is a glut of recently graduated lawyers from the oversized graduating classes of 2012, 2013 and 2014 who have had great difficulty finding jobs, many of whom are unemployed, underemployed, or who were forced to take jobs that did not require a JD. But there is no support for the assertion that the "great majority" will NEVER obtain jobs as lawyers. Law schools are not guarantors of employment, they are providers of legal education. Law schools do not control, and can't predict, the future legal economy. So long as law schools accurately report employment data and do not mislead students about their realistic job prospects, I don't see any problem with giving students who have a reasonable probability of success in law school and on the bar exam a chance to pursue a legal education. (As you know, I do have a problem with letting in students who do not have a reasonable probability of success.) Prospective law students are capable of understanding the legal employment market that they are entering into, and it appears to me that they do. The overall poor prospects for employment are the reason that fewer and fewer college graduates are applying to law school. The historic decline in enrollment has led some to conclude that the job prospects for students entering law school now will actually be quite good, since demand may start to outstrip supply by the time they graduate. Other commentators feel that the legal employment market has permanently altered and those jobs will never come back. I am not an economist so don't feel qualified to make a prediction one way or the other. What I believe everyone can agree on is that there are huge unmet demands for legal services in the United States, with a large percentage of the population unable to access basic legal assistance. So, I believe there are opportunities for lawyers to find meaningful work, even if it means opening their own practice. Some small towns in American now offer incredible sweetheart deals to doctors to come to their towns and serve as general practitioners. Perhaps some municipalities might offer similar incentives for lawyers to open a practice in their town.

[No, breh.]

David, this is extremely nitpicky on my part, and I don't think it was intentional on your part, but I just wanted to point out that people tend to improperly throw out the word "demand" a lot in connection with the justice gap, when (I think) they mean something else.

The problem with the "unmet demands" language is that "demand" implies both a willingness and ability to pay for something. The justice gap issue is that, although people may well benefit from certain legal services, they either cannot or will not pay the market price for those services. At some point, I think, you have to assume people are acting rationally -- the market price for whatever legal services are available sometimes will not be worth paying, particularly to someone without much income who needs to, e.g., buy food.

The problem for lawyers with respect to providing legal services at a lower price point is that, at the price level that the "unmet demands" population can afford, lawyers are, in large part, going to try to find another line of work, because, hey, gotta pay the bills/loans. Even assuming they could find clients, they may well have a difficult time finding clients who actually pay you too. And that is to say nothing of the risks (financial, ethical, malpractice etc.) inherent in a recent grad opening up his or her own practice.

So, what I think you're inferring, and what a lot of others are saying, is that there may well be a market opportunity with respect to an unspecified lower price point for legal services. Which, hey, I think you probably have a point. But I don't think that really helps anybody out unless we can think up some other sort of structure other than unemployed grads taking a gamble on opening up a practice. Maybe the real solution is a Civil Gideon thing, or some sort of hybrid Legal Aid/public interest firm model subsidized by the government/bar. I just don't think we've even slightly moved towards that, though, as a profession.

That was a bit of a ramble, but hopefully it made sense.

[JillyFromPhilly]

Well said No, breh.

David,

For someone who has written about the psychological and economic devastation that accompanies failing the bar exam, I am surprised at your apathy toward the thousands of law graduates and bar exam passers annually who are unable to put their law degrees to use in any meaningful way, while carrying enormous amounts of debt.

In one post you say both:

"Prospective law students are capable of understanding the legal employment market that they are entering into, and it appears to me that they do"

and

"Other commentators feel that the legal employment market has permanently altered and those jobs will never come back. I am not an economist so don't feel qualified to make a prediction one way or the other"

How are prospective law students, mostly juniors and seniors in college, able to capably understand the legal market and make accurate predictions about their prospects at graduation when you are unable to predict the future job market because you are not an economist? Are they all economists?

When you say that law schools should admit any student with a reasonable probability of success in law school, are you arguing that there need not be any kind of relationship between the number of law school graduates and the number of entry level lawyer positions? Law schools have no obligation to their students, graduates and the legal profession to refrain from flooding the market?

Thanks.

[JM]

"I consider it to be a massive overstatement to say that 'there is almost no chance for the great majority of graduates of these schools will ever obtain jobs as lawyers.' I think it is fair to say that many graduates of lower ranking law schools will find it difficult to find employment immediately upon graduation and passing the bar."

They will only become less employable as attorneys with each passing day. What possible logic suggests otherwise?

"Law schools are not guarantors of employment, they are providers of legal education."

There it is: caveat emptor. This is where it always ends up. At least prospectives have a right to know how little responsiblity school's feel they have for their student's futures.

"Prospective law students are capable of understanding the legal employment market that they are entering into, and it appears to me that they do."

Just a patently false self-serving statement. Provide one rational reason for enrolling in FCLS this coming year at even half tuition where over three quarters of the graduating class is unemployed or in some sort of part time/short term gig. There is none.

"What I believe everyone can agree on is that there are huge unmet demands for legal services in the United States, with a large percentage of the population unable to access basic legal assistance. So, I believe there are opportunities for lawyers to find meaningful work, even if it means opening their own practice."

Are you familiar with Armatya Sen's theory that famines are never a result of food shortage but instead are a result of poverty? Apply that to this case.

"Some small towns in American now offer incredible sweetheart deals to doctors to come to their towns and serve as general practitioners. Perhaps some municipalities might offer similar incentives for lawyers to open a practice in their town."

In the year 2015, no one equates lawyers with doctors in terms of necessity or prestige. The former is due to alternatives like legalzoom and the latter is due to the subprime JD open enrollment phenomenon that you seem to support.

[anon]

"What I believe everyone can agree on is that there are huge unmet demands for legal services in the United States, with a large percentage of the population unable to access basic legal assistance." David

"Maybe the real solution is a Civil Gideon thing, or some sort of hybrid Legal Aid/public interest firm model subsidized by the government/bar." No, breh.

Finally, we are hovering around getting somewhere. If only the legal academy could see that its proper role in society is stymied by the current crop of "rock stars" running things. If only they concerned themselves, first and always, with the practice of law and improving the legal systems in America, there would be a chance to apply all that "knowledge generation" to making the legal system function better, for graduates and their communities, and not just for the BigLaw firms that serve "Wall Street," not main street.

The graduates of our elite law schools have done, and are doing just a wonderful job there, thanks to the ethics and values elite law schools have instilled in their graduates. While the elite faculties in T14 law schools gaze in the mirror and see only beauty and competence, their rapacious grads have helped "Wall Street" to destroy our economy and the middle class – one effect, the vast majority of Americans go underserved and law school graduates remain unemployed.

It is just delicious when we hear these paragons of virtue lecture on the “market” and the inability of the middle class to pay for legal services, after all they have done to create this circumstance. Don’t expect anything productive from these folks.

Unfortunately, the lower ranked law schools, where David seems to focus, see themselves as the embodiment of everything that characterizes the T14. They emulate their mores, values and goals. They blame their students for not being them. And, they ignore all the good they might be doing in the community in order to pretend that they, too, are persons who would have earned millions in BigLaw but for their “sacrifice” to join legal academia. They, too, are “rock stars” and don't seem to get it.

If the vast majority of law schools decided to serve the vast majority of America, instead of their vanity and distaste for lawyers and the practice of law, then the situation would turn around very quickly.

[David Frakt]

No, breh -

I supposed I could have said there is is a massive unmet need for legal services, as opposed to a massive unmet demand, but I believe it is also true that there is a massive unmet demand. Every legal clinic and legal aid organization I know of is overwhelmed with requests for their services and must turn away many potential clients. I would like to see much greater funding for legal services/legal aid providers. Ideally, I would like to see a national service model, where students who agree to provide legal services to underserved communities for three years after graduation would receive a reasonable living stipend and significant loan forgiveness from the federal government. At the end of the three years, these lawyers would have enough connections and experience to land a job or perhaps start their own solo or small firm practice. You are probably right that this is mostly a pipe dream right now, but as there is an increasing recognition of income inequality and the justice gap, perhaps there will be a growing impetus do to something about it.

[David Frakt]

JM and JillyFromPhilly -

I am not apathetic at all to recent graduates and bar exam passers who can't find jobs and carry large debt burdens. I feel very bad for them, but I don't know what I or anyone else can do about it, other than advocating for more generous unemployment benefits, or perhaps some leniency in loan repayments. Suggesting that law schools should simply stop admitting students until the backlog of unemployed recent graduates have all been hired is not a realistic solution.

You ask whether law schools have an obligation to their students, graduates and the legal profession to refrain from flooding the market? In a word, "no" with one exception, which I will address in a moment. I have advocated that law schools should shrink their entering classes rather than lower their standards. If every law school did this, it would go a long way toward solving the lawyer surplus problem. But the idea that law schools should only admit as many students as they can be confident of placing in a JD required job three years later is completely unrealistic. First of all, the market for lawyers is national. No single law school "floods" the market. Your solution would require 200 law schools to agree each year on how many lawyers will be needed in three years and then collude with each other to divide up the students among themselves, which would be illegal. I also have not said that "law schools should admit ANY student with a reasonable probability of success in law school." I have said law schools should admit ONLY students with a reasonable probability of success in law school, which is what the ABA standard requires, but which, unfortunately, in my opinion, the ABA is not enforcing.

The Exception
The one exception to my general belief that law schools have no duty not to enroll students to avoid flooding the market is with new law schools. New law schools tend to attract students from the local area or the region, since, by definition, the law school does not yet have a national reputation, and it takes a while to get full accreditation. New law schools with evening or part-time programs tend to especially draw students from the local area. New law schools do not have a large alumni base which can serve as a pipeline for jobs for new graduates. Thus, if a new law schools grow too fast, there is a significant danger that the school will flood the local market with too many of its own graduates, who will not be able to be absorbed into the job market. The two clearest examples of this are Charlotte School of Law and Florida Coastal School of Law, which grew at an astronomical rate in the 2005-2010 timeframe, becoming two of the largest law schools in the country. Both of these schools flooded their local markets with their own graduates, which together with the poor overall reputation of the schools, and the overall slump in the legal economy, has contributed to the dismal employment statistics at these schools. In contrast, universities that have opened law schools in recent years with a focus on quality, such as UC Irvine and Drexel, started small and grew their student bodies slowly. These schools have not flooded the market, even though they operate in highly competitive markets with numerous law schools, and their post-graduate employment statistics reflect that.

Caveat Emptor
JM accuses me of simply falling back on caveat emptor. This is an unfair critique of my views. I have advocated for far more accurate and granular consumer data than the ABA requires, pointing out why the data currently required to be reported can be incomplete and misleading. I have even called for criminal investigations of InfiLaw and other predatory schools. But yes, ultimately, in a free country and a free market economy, people are responsible for making their own decisions, good or bad. So long as they were not misled by a law school engaging in deceptive practices, I do not think it is fair to blame their law school for their inability to find employment immediately after graduation. I am concerned about schools that take advantage of unsophisticated, vulnerable consumers. But just because college seniors may be young, does not mean that they are stupid, or have no resources at their disposal. College students have access to a lot of smart people: their professors, pre-law advisors, career planning and placement personnel, and their parents, just to name a few, and they are quite savvy about conducting research on the internet. There is plenty of information available about the difficulties that recent law school graduates have faced in finding work.

JM says: "Just a patently false self-serving statement. Provide one rational reason for enrolling in FCLS this coming year at even half tuition where over three quarters of the graduating class is unemployed or in some sort of part time/short term gig. There is none."

I think it is highly ironic that InfiLaw considers me public enemy # 1 because of my harsh criticism of their admission practices, and yet JM seems to suggest that I am encouraging people to enroll at Florida Coastal. Just to be clear, I would not encourage anyone to attend FCSL if they were admitted to a more prestigious school. This is not because of any concerns over the quality of instruction at FCSL, but because of the job prospects for FCSL graduates.
If a prospective law student applied to several schools and was only admitted at FCSL because their grades and LSAT scores were too low to get in elsewhere, I would probably
encourage that student to consider another career.

[Barry]

David Frakt: "No, breh -

I supposed I could have said there is is a massive unmet need for legal services, as opposed to a massive unmet demand, but I believe it is also true that there is a massive unmet demand."

No, there is not. We are talking jobs, and jobs require paying clients (one way or the other).

" Every legal clinic and legal aid organization I know of is overwhelmed with requests for their services and must turn away many potential clients.

I would like to see much greater funding for legal services/legal aid providers."

So would I. Considering that one party is 100% against this....

" Ideally, I would like to see a national service model, where students who agree to provide legal services to underserved communities for three years after graduation would receive a reasonable living stipend and significant loan forgiveness from the federal government. "

What we've seen for the past several years is cuts to anything which resembles that, either public or private.

"At the end of the three years, these lawyers would have enough connections and experience to land a job or perhaps start their own solo or small firm practice."

Probably not, actually, because they'll be competing with the next cohort from before, and the established practitioners from above.

" You are probably right that this is mostly a pipe dream right now, but as there is an increasing recognition of income inequality and the justice gap, perhaps there will be a growing impetus do to something about it."

Considering the massive uphill political battles this would require, and the ability of the right to block things for decades, betting one's future on this is a fool's bet.

[JillyfromPhilly]

David,

Let me get this straight. I believe you have stated the following positions:

Existing law schools have no obligation to refrain from flooding the legal market with indebted graduates because we live in a free market economy and there is no legal way for law schools to limit their enrollments to match the demand for new attorneys.

Law schools should feel free to admit any applicant that has a reasonable probability of success in law school, regardless of the poor employment outcomes those students will eventually face because law schools are not guarantors of employment.

New law schools should either not open, or they should not expand their enrollments quickly because they do not have national reputations or large alumni bases that can serve as a pipeline for jobs. The lack of a national reputation and large alumni results in graduates of those schools having poor employment outcomes.

Do I have that right?

- A couple questions:

If we live in a free market economy where everyone should be responsible for their own decisions, why shouldn't new law schools open and expand at the rate of demand? About 80% of applicants are currently being admitted to at least one law school. Should applicant levels return to 2004 levels, where 100,000 people applied, we are going to need a whole lot more law schools to enroll the 80,000 admittees, right?

How many current law schools have a national reputation with large alumni bases that serve as a pipeline for entry level jobs?

Thanks.