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The Cause and Effect of Recent Changes to the Louisiana Bar Examination

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The Cause and Effect of Recent Changes to the Louisiana Bar Examination The Cause and Effect of Recent Changes to the Louisiana Bar Examination By Scott T. Whittaker and Dona K. Renegar milestone in the annals of score of at least 650 out of the possible 2001: The Process Begins Louisiana legal practice was 900 total points that can be earned in the passed in July 2012 when a nine subjects tested. The nine subjects of the Louisiana Bar new method of grading the As far as anyone can remember, this exam (Code I, II and III; Louisiana Civil Louisiana Bar Examina- is the first change that has been made to Procedure; Torts; Federal Jurisdiction and tion (Bar exam) was instituted. No longer the grading standards of the Louisiana Procedure; Constitutional Law; Criminal Ado applicants to the Louisiana Bar have Bar Examination since the Bar exam was Law and Evidence; and Business Entities to worry about passing seven of the nine instituted. This article explains the reasons and Negotiable Instruments) are written subjects tested on the Bar exam, while not for the change, the long process that resulted and graded by examiners, who are ap- failing more than one of the five “Code” in the change, and the results of the two Bar pointed by the Louisiana Supreme Court subjects. No longer can an applicant “con- exams that have been administered since the and are members of COBA. Each examiner ditionally fail” the Louisiana Bar exam by change was implemented. It also describes has the help of assistant examiners in the passing at least five of the nine subjects and future changes (which are even more sig- grading of the exam answers. Prior to 2001, three of the five Code subjects, but failing nificant) to the Bar exam that have been the examiners acted independently of one to achieve a passing score on seven of the proposed by the Louisiana Supreme Court another, which resulted in significant dif- nine subjects. As of July 2012, Louisiana Committee on Bar Admissions (COBA). ferences among the subject matter exams Bar applicants simply have to achieve a in terms of the number of questions and 90 August / September 2013 format (long essays vs. short answer). limit the number of times an applicant may ► Should success on the Bar exam be In 2001, the Louisiana Supreme Court take the exam; and whether to continue to determined by means of one numerical restructured COBA by creating a subcom- allow applicants to “condition” the exam. score that would be arrived at by combin- mittee called the “Testing Committee” to ing the scores of the individual exams? study and recommend improvements to The Testing Committee began gather- ► Should all applicants be required all aspects of the Bar exam. The Testing ing information and input. By the end to take the entire Bar exam, thereby Committee was initially composed of of 2001, the committee had reviewed eliminating the “conditional failure” that Scott T. Whittaker (director), David E. information regarding the scope of the is currently allowed? Walle and Rebecca L. Hudsmith. All three bar exams administered by all of the ► Should the Bar exam be restruc- were members of COBA who had com- other states, as well as the critiques of tured so as to shift the orientation toward pleted 10-year terms as examiners. Over the Louisiana Bar exams for the past five legal practice and away from the current the ensuing years, the composition of the years, which had been submitted by the Bar system of testing traditional categories of Testing Committee changed. At various Admissions Advisory Committee (com- substantive law and procedure? times leading up to the COBA proposals prised of representatives of all Louisiana ► Should the Multi-State Performance of February 2010, the members of the law schools). The Testing Committee also Test (MPT) be added as an additional Testing Committee included Professor began drafting and planning a detailed requirement of the Bar exam? Michelle L. Ghetti of Southern University survey to gather input from members of ► Should the Louisiana Code of Law Center, Professor David W. Gruning the Louisiana Bar, the judiciary and the Professional Responsibility be included of Loyola University Law School, and law schools. in the essay portion of the Bar exam; former examiners Billy J. Domingue and and, if so, should this be in addition to or Hon. S. Maurice Hicks, Jr. 2002-2004: Studying and in lieu of the current practice of testing As stated in the Louisiana Supreme Gathering Input professional responsibility by means of Court’s 2001 Annual Report, the general the Multistate Professional Responsibility areas to be studied by the Testing Com- The members of the Testing Commit- Exam (MPRE)? mittee were: tee also felt that, to properly carry out ► Should the current policy of giving their charge, they needed to learn about greater weight to the “Code” sections of ► The substance of the Louisiana testing theory. Therefore, in 2002, they the Bar exam be continued? Bar Examination. This includes, with- contacted the National Conference of Bar out limitation, whether any new topics Examiners (NCBE), the organization that Then-Louisiana Supreme Court Chief should be added; whether any existing prepares and administers the Multi-State Justice Pascal F. Calogero, Jr. sent those topics should be deleted; whether to alter Bar Exam and whose staff includes some questions to the dean and/or chancellor of the current system of testing professional of the most highly respected profession- each Louisiana law school and convened responsibility (e.g., by ceasing to use als in the area of high-stakes testing. The a May 2004 meeting among the Louisiana the multi-state ethics exam, by testing NCBE staff helped educate Testing Com- Supreme Court justices, the Testing Com- professional responsibility on other por- mittee members about important testing mittee and the law schools. Later in 2004, tions of the exam, and/or by reinstituting concepts, such as validity, reliability and follow-up meetings took place between a professional responsibility essay exam); consistency across time (which are beyond the Testing Committee members and the and whether a performance exam such as the scope of this article but which played faculties and administration of Louisiana the multi-state performance test should a key role in the proposals for change that State University Paul M. Hebert Law Cen- be adopted. were eventually put forth). ter and Southern University Law Center. ► The structure of the Louisiana Bar In 2003, the Bar exam survey was con- Examination. This includes, without limi- ducted online to solicit input from mem- 2005: Hurricane Katrina tation, whether to keep the current nine- bers of the Louisiana Bar, the judiciary and Sidetracks Process exam format or combine the exams into the law schools. Significant efforts were two or more exams (e.g., simply “Code” made to publicize the survey, including Prior to the Louisiana Supreme Court and “Non-Code”); whether to continue sending letters to every member of the taking action on these possible areas of the practice of labeling examinations; and Bar, judiciary and law school faculties change, Hurricane Katrina struck dur- whether to reduce the number of days on encouraging them to take part. ing the July 2005 Louisiana Bar exam which the exam is held from three to two. In early 2004, after approximately two grading process. At the time Hurricane ► The procedural aspects of the and one-half years of study and gathering Katrina made landfall, approximately Louisiana Bar Examination. This in- input, the Testing Committee issued the 5,000 separate exam answers were in cludes, without limitation, whether to alter following written questions to the Loui- the hands of approximately 450 assistant the current system of volunteer Examiners siana Supreme Court in order to suggest examiners, most of whom were displaced and Assistant Examiners; whether to alter potential Bar exam changes: by the storm. At that time, no copies of the current grading procedure; whether to Louisiana Bar Journal Vol. 61, No. 2 91 exam answers were kept. Therefore, the process. To assist in the preparation of in the development of multiple-choice original exam answers had to be recovered the proposed final recommendations for questions. The essay questions on the from offices and homes throughout the changes, COBA retained testing expert restructured exam would cover the subject hurricane-ravaged area. The examiners, Stephen P. Klein, Ph.D., and testing matter currently covered by the Bar exam assistant examiners, staff and other mem- consultant Karen Barbieri. tests in the following subject areas: Code bers of COBA exerted herculean efforts In September 2009, COBA officers I; Code II; Code III; Louisiana Code of to locate and properly grade all exams. met with then-Louisiana Supreme Court Civil Procedure; Torts; and Business Enti- To properly chronicle those efforts would Chief Justice Catherine D. (Kitty) Kimball ties and Negotiable Instruments. Profes- fill a book. In the end, the grades of only and then-LSBA President Kim M. Boyle sional responsibility, currently tested only 13 applicants were affected through their to discuss the proposed plan. COBA, through the MPRE, also would be added exam answers being lost in the storm. Klein and Barbieri created PowerPoint as an essay exam topic. The requirement COBA administered the first-ever make- presentations outlining the proposals of a current passing score on the MPRE up Bar exam to those 13 applicants, all for change and calling for comments. In would be retained under the restructured of whom, happily, passed the exam and January 2010, those PowerPoint presen- procedures. The essay exam testing, were sworn in only one month later than tations were circulated to the Louisiana however, would be “blind,” in that the the other applicants who passed the July Supreme Court, the LSBA, the Louisiana applicants would not be told which sub- 2005 Louisiana Bar exam.
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