Why are Bar Exam Retakers Failing at a High Rate?

In 2013, the nationwide pass rate for the July bar exam was 72%. However, those numbers do not tell the whole story. A closer look into the July 2013 pass rate reveals that 1st time bar exam takers passed at an 80% rate while repeat exam takers passed at only a 29% mark. How is it possible that such a discrepancy exists? Why is it that people who fail the bar exam once are more likely to fail again?

Law school deans are baffled. In a November 13, 2014 New York Law Journal article titled “Deans Dismayed by Declines in Bar Pass Rates,” one law school Dean said, “We’re all scratching our heads and left with questions as to what this means.” The article points out the “decline comes at a time when most schools have revamped their bar preparation programs, requiring more students than ever to enroll in test-taking skills courses and hosting free bar review weekends on campus.” Yet, despite these bar prep programs, schools are still struggling. New York Law School hired three commercial bar review courses to teach a prep program and still saw its pass rate drop by 12% between 2013 and 2014, the year’s largest drop in New York.

While law schools do not understand why the passage rates are dropping, the Bar Examiners themselves believe they know why. Erica Moeser, President of the National Conference of Bar Examiners (NCBE), wrote in an October 23, 2014 memorandum to law school deans nationwide noting that indictors “[a]ll point to the fact that the group that sat in July 2014 was less able than the group that sat in July 2013.” A New York Times article titled “Law School is a Buyers Market” by Elisabeth Olson seems to support Ms. Moeser’s position. Ms. Olson wrote: “People who are skeptical of across-the-board tuition cuts contend that some schools are padding enrollments with students who have lower Law School Admissions Test scores — the top score is 180 — and lower undergraduate grades. Lower academic scores raise concerns about whether the students will be able to pass the state bar exams that are mandatory to practice law.”

In my previous Above the Law columns, I have argued that the bar pass rate is dropping due to how students are preparing for the exam. Students continue to pass the bar exam in GPA order at time of graduation. When everyone is taking the same bar review courses, whether after school or through a school sponsored program, there is no advantage. And with students simply repeating those courses after they fail the first time, those students graduating at the bottom of the class are failing in high numbers not just once, but two or three times.

The reason repeat bar exam takers fail is that the retaker student is not in the same place as the 1st time taker. A lot changes from the time you are a recent law graduate to when the results come out. If you are lucky, you have a job. If not, you are working hard to find one while trying to make ends meet. When you studied for the exam the 1st time, you had an entire summer free to prepare and free of real world stresses. Now you have to juggle work, studying, and the rest of your life. Simply redoing the same studying you did the first time is a recipe for failure. You need to change your focus and try something different.

Most repeat bar exam takers tell me that they just did not know enough law, yet I have rarely met a student that did not know enough law to pass; they all failed because they did not know how to score points with the law they knew. Passing the second time around is not about studying more, but studying smarter. Many retaker students focus heavily on their weaknesses and not continuing to keep their knowledge and skills sharp in their strengths as well. A student cannot pass or fail one portion of an exam – they must pass the entire exam. Each section of the exam is an opportunity to earn points. Many times a retaker can learn to get more points from something they are good at as opposed to spending time on something they are not. Therefore, students must be trained in such a way as to improve on their weaknesses while not compromising their strengths.

Targeted skills training is necessary to reverse the growing trend of law school graduates who fail the bar exam on repeat attempts. Learning the law is not enough. Learning how to maximize points when you know the law and scoring points when you do not is the crucial skill each student needs to learn for success on exam day. Training is learning how to write an essay when you do not know the rule of law and how to select between two MBE answer choices based on how the question is written, not simply teaching law and explaining how to write an essay or do an MBE question.

The law school bar programs and bar courses that are condensed versions of law school classes rely on the skill sets learned in law school. The result is that those students that did well in school pass and those that did not fail the exam. The bar exam is a test written with an intended result. Essays have predetermined answers the student is graded against. Recognizing what an examiner is looking for by just reading an essay fact pattern is how a retaker succeeds on the exam. The bar exam is not law school. Retakers fail because they continue to approach the bar exam as if it were a law school final which it is not.

If you have any questions or would like me to review your bar exam score report, you may email me at info@marinolegal.com I am here to help students succeed on the bar exam.


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