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Building a Better Bar:The Twelve Building Blocksof Minimum CompetenceDeborah Jones MerrittDistinguished University ProfessorJohn Deaver Drinko/Baker & Hostetler Chair in LawMoritz College of Law, The Ohio State UniversityLogan CornettIAALS Director of ResearchOctober 2020With generous support from:For reprint permission, please contact IAALS.Copyright 2020 IAALS, the Institute for the Advancement of the American Legal SystemAll rights reserved.
IAALS—Institute for the Advancement of the American Legal SystemJohn Moye Hall, 2060 South Gaylord Way, Denver, CO 80208Phone: 303-871-6600http://iaals.du.eduIAALS, the Institute for the Advancement of the American LegalSystem, is a national, independent research center at the Universityof Denver dedicated to facilitating continuous improvement andadvancing excellence in the American legal system. We are a “thinktank” that goes one step further—we are practical and solutionoriented. Our mission is to forge innovative and practical solutionsto problems within the American legal system. By leveraging aunique blend of empirical and legal research, innovative solutions,broad-based collaboration, communications, and ongoingmeasurement in strategically selected, high-impact areas, IAALS isempowering others with the knowledge, models, and will to advancea more accessible, efficient, and accountable American legalsystem.Brittany K.T. KauffmanZachariah DeMeolaSenior DirectorDirector of Legal Educationand the Legal ProfessionSpecial Projects AdvisorKyle McEnteeLogan CornettJames SwearingenJonna PerlingerDirector of ResearchResearch AssistantLegal Assistant2
Table of ContentsAcknowledgements . 1Executive Summary . 3Introduction . 6Background . 9Prior Research . 9Method . 17Researchers . 17Geographic Distribution of Focus Groups . 17Recruitment of Participants. 19Participant Demographics . 20Participant Employment Settings and Practice Areas . 23Focus Group Protocol . 26Analysis . 26Findings and Insights . 29Practice Context: The World of New Lawyers . 29State and Local Law . 29Memorization. 30Client Contact . 32Supervision . 33Solo Practitioners . 36Twelve Building Blocks of Minimum Competence . 38The Ability to Act Professionally and in Accordance with the Rulesof Professional Conduct . 40An Understanding of Legal Processes and Sources of Law . 44An Understanding of Threshold Concepts in Many Subjects . 47The Ability to Interpret Legal Materials . 49The Ability to Interact Effectively with Clients . 51The Ability to Identify Legal Issues. 57The Ability to Conduct Research . 61The Ability to Communicate as a Lawyer . 65The Ability to Understand the “Big Picture” of Client Matters . 723
The Ability to Manage a Law-Related Workload Responsibly . 74The Ability to Cope with the Stresses of Legal Practice . 79The Ability to Pursue Self-Directed Learning . 80Assessing Minimum Competence . 82Closed-Book Exams . 83Time-Pressured Exams . 84Multiple Choice Questions . 85Written Performance Tests . 87Practice-Based Performance . 89Recommendations . 93Written Exams . 94Coursework Requirements . 97Clinical Experience . 99Putting the Pieces Together . 101Example Licensing Systems . 104Example One: Test-Centered System . 104Example Two: Experience-Centered System . 106Example Three: Diploma-Centered System. 107Conclusion . 1104
AcknowledgementsThis project was supported by a generous grant from AccessLex Institute.This project would not have been possible without the help of our superb research partners. AlliGerkman, Former Senior Director at IAALS, contributed a great deal of thought and work in theearly days of this project. Her death in August 2019 deprived us of her friendship, fearless spirit,and talented insights. We will forever mourn her loss and hope this project carries forward herideals.At IAALS, we benefited from a hardworking and thoughtful team:Zachariah DeMeolaDirector of Legal Education andthe Legal ProfessionKyle McEnteeSpecial Projects AdvisorJames SwearingenResearch AssistantJonna PerlingerLegal AssistantOur external team of talented facilitators, observers, and special assistants made it possible toconduct 50 focus groups in 18 locations spread across the country:Claudia AngelosClinical Professor of Law, New York UniversitySchool of LawAnahid GharakhanianProfessor of Legal Analysis, Writing, and Skills, andDirector of Externships, Southwestern Law SchoolJanelle AtanganExternship Program Coordinator, Santa ClaraUniversity School of LawMildred GrahamDirector of Advancement and Alumni Affairs,Florida A&M University College of LawShannon BartlettAssociate Dean of Inclusion & Engagement,Northwestern University Pritzker School of LawJoan W. HowarthInterim Associate Dean for Experiential LegalEducation and Distinguished Visiting Professor,Boyd School of Law, UNLV; Dean Emerita,Michigan State University College of LawMary Lu BilekDean and Professor of Law, CUNY School ofLawAlicia JacksonAssistant Professor of Law and Director ofAcademic Success and Bar Preparation, StetsonUniversity College of LawEduardo CapulongProfessor of Law and Director of the LawyeringProgram, CUNY School of LawNicholas JanzenJD Expected 2021, University of Maine School ofLaw1
Fanny ChacJD Expected 2021, Georgia State UniversityCollege of LawEileen KaufmanProfessor Emerita, Touro College, Jacob D.Fuchsberg Law CenterCarol L. ChomskyProfessor of Law, University of Minnesota LawSchoolKevin LeeProfessor of Law, Campbell University NormanAdrian Wiggins School of LawRe’Necia CodaJD 2020, Texas Southern University ThurgoodMarshall School of LawDanielle McCainAssociate Director, Legal Writing Resource Center,UIC John Marshall Law SchoolOlwyn ConwayAssistant Clinical Professor of Law, MoritzCollege of Law, The Ohio State UniversityThiadora PinaAssociate Clinical Professor and Director,Externship Program, Santa Clara University Schoolof LawAndrea A. CurcioProfessor of Law, Georgia State UniversityCollege of LawNatalie RodriguezAssociate Professor of Law and Assistant Dean ofAcademic Success, Southwestern Law SchoolTiffany DanielAssistant to the Dean, CUNY School of LawDocia L. RudleyExecutive Director for Assessment (Former), TexasSouthern University Thurgood Marshall School ofLawFrank DurandAssociate Dean for Student Affairs, William S.Boyd School of Law, University of Nevada atLas VegasJeffrey ThalerProfessor of Practice, University of Maine School ofLawAmanda FurstChief of Staff and Lecturer in Law, University ofMinnesota Law SchoolFour excellent research assistants, finally, supported essential portions of the project:Melanie HensonBS (Finance and PublicPolicy Analysis) 2020The Ohio StateUniversityAlexander MaxwellJD Expected 2021Moritz College of LawThe Ohio StateUniversityThomas N. PopeJD Expected 2021Moritz College of LawThe Ohio StateUniversity2Alexander WalkerJD Expected 2021Moritz College of LawThe Ohio StateUniversity
Executive SummaryThe bar exam tries to distinguish minimally competent lawyers from incompetent ones: it existsto protect the public from the harms of incompetent legal representation. That protection iscritical to maintaining the integrity of the profession, but the bar exam achieves that goal only ifit effectively assesses minimum competence. The unfortunate reality is that, although the barexam has existed for more than a century, there has never been an agreed-upon, evidence-baseddefinition of minimum competence. Absent such a definition, it is impossible to know whetherthe bar exam is a valid measure of the minimum competence needed to practice law or anartificial barrier to entry.While there have been a handful of efforts to gain an empirical understanding of the skills andknowledge new lawyers use in their early years of practice, few researchers have explicitlysought to define minimum competence. The few attempts to probe minimum competence haverelied on surveys, which lack the ability to delve into the nuances of new lawyers’ work. Surveysdo not allow new lawyers to describe their work in detail or to explain how they use their skillsand knowledge in that work.We designed this study to address these substantial gaps in our knowledge, build on the existingresearch, and develop an evidence-based definition of minimum competence. In the latter half of2019 and early 2020, we conducted 50 focus groups using a protocol we developed to gatherdata about the knowledge and skills new lawyers need to practice competently. Of those focusgroups, 41 were conducted with new lawyers, while the remaining nine were conducted withthose who supervise new lawyers.The data from these focus groups suggest that minimum competence consists of 12 interlockingcomponents—or “building blocks.” The ability to act professionally and in accordance with the rules of professional conductAn understanding of legal processes and sources of lawAn understanding of threshold concepts in many subjectsThe ability to interpret legal materialsThe ability to interact effectively with clientsThe ability to identify legal issuesThe ability to conduct researchThe ability to communicate as a lawyerThe ability to see the “big picture” of client mattersThe ability to manage a law-related workload responsiblyThe ability to cope with the stresses of legal practiceThe ability to pursue self-directed learning3
Further, our data led us to five insights about appropriate, accurate assessment of minimumcompetence: Closed-book exams offer a poor measure of minimum competence to practice law;Time constraints on exams similarly distort assessment of minimum competence;Multiple choice questions bear little resemblance to the cognitive skills lawyers use;Written performance tests, in contrast, resemble many of the tasks that new lawyersperform; andPractice-based assessments, such as ones based on clinical performance, offer promisingavenues for evaluating minimum competence.Based on our findings, we propose 10 recommendations for courts, law schools, bar associations,bar examiners, and other stakeholders to consider in their efforts to move towards evidencebased lawyer licensing.Recommendation One: Written exams are not well suited to assessing all aspects ofminimum competence. Where written exams are used, they should be complemented byother forms of assessment.Recommendation Two: Multiple choice exams should be used sparingly, if at all.Recommendation Three: Eliminate essay questions from written exams and substitutemore performance tests.Recommendation Four: If jurisdictions retain essay and/or multiple choice questions,those questions should be open book.Recommendation Five: Where written exams are used, provide more time for allcomponents.Recommendation Six: Candidates for licensure should be required to completecoursework that develops their ability to interact effectively with clients.Recommendation Seven: Candidates for licensure should be required to completecoursework that develops their ability to negotiate.Recommendation Eight: Candidates for licensure should be required to completecoursework that focuses on the lawyer’s responsibility to promote and protect the qualityof justice.Recommendation Nine: Candidates for licensure should be required to complete closelysupervised clinical and/or externship work.4
Recommendation Ten: A standing working group made up of legal educators, judges,practitioners, law students, and clients should be formed to review the 12 building blocksand design an evidence-based licensing system that is valid, reliable, and fair to allcandidates.The legal profession prides itself on its integrity. But if we are to meet our own expectations—and those of the public—we must adopt an evidence-based definition of minimum competence.We must also use that empirically grounded definition to shape the lawyer licensing system. Ourresearch provides the critical first step on this path.5
IntroductionProfessional licensing systems attempt to shield the public from incompetent practitioners, butthey can also harm consumers by insulating professions from unwanted competition.1Historically, these systems have also been used to exclude people of color and other groupsdeemed “undesirable” from law and other professions.2 James Willard Hurst, a preeminent legalhistorian, warned of these conflicting tendencies within the United States legal profession. Afterreviewing the rise of written bar examinations during the first half of the twentieth century, Hurstconcluded: “[I]n the face of perennial cries about an ‘overcrowded’ bar, and because the barmirror[s] the prejudices of its society, the integrity of the examination system require[s] carefulwatch.”3Despite Hurst’s warning, we in the legal profession have not kept close watch over ourexamination system. Jurisdictions developed written bar exams without any serious attempt todefine the minimum competence that their exams purported to measure.4 Experts defended theseexams by noting that the questions tracked the required law school curriculum and that scorescorrelated with both law school grades and LSAT scores.5 Neither of those measures, however,were empirically tied to minimum competence for practice.Without a secure, evidence-based definition of minimum competence, we cannot claim that thesystem for licensing lawyers protects the public from incompetent legal representation. Nor canwe sever the current system from its undeniably racist and protectionist roots.6 Our professionurgently needs to define the minimum competence needed to practice law, to ground thatdefinition in empirical evidence, and to use that grounded definition to inform the licensingprocess.1See generally WHITE HOUSE REPORT, OCCUPATIONAL LICENSING: A FRAMEWORK FOR POLICYMAKERS default/files/docs/licensing report final nonembargo.pdf; Brian E.Clauser, Melissa J. Margolis & Susan M. Case, Testing for Licensure and Certification in the Professions, inEDUCATIONAL MEASUREMENT 701 (ROBERT L. BRENNAN ed. 2006).2See, e.g., JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1976);R. Scott Baker, The Paradoxes of Desegregation: Race, Class, and Education, 1935-1975, 109 AM. J. EDUC. 320(2001); Clauser et al., supra note 1, at 702; George B. Shepherd, No African-American Lawyers Allowed: TheInefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. LEGAL EDUC. 103 (2003).3JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS 284 (Lawbook Exchange 2011).4See, e.g., RUDOLPH J. GERBER, LAWYERS, COURTS, AND PROFESSIONALISM: THE AGENDA FOR REFORM 55 (1989)(“Evidence that the examination reflects the practice of law in any way is rarely presented”); Stephen P. Klein,Summary of Research on the Multistate Bar Exam, BAR EXAMINER, Aug. 1983, at 10, 13 (“No studies haveattempted to correlate MBE scores with ‘success as a lawyer’ because of the difficulty of obtaining agreement as toa valid measure of success.”)5See, e.g., GERBER, supra note 4, at 55-56; Klein, supra note 4, at 12-13.6See e.g., AUERBACH, supra note 2; Shepherd, supra note 2.6
Over the last decade, a few researchers have started work on defining minimum competence. In2012, the National Conference of Bar Examiners (NCBE) published the results of its first jobanalysis survey.7 Over 1,600 newly licensed lawyers responded to that survey, providinginformation about the tasks they performed and the knowledge, skills, and abilities they neededfor their work. NCBE commissioned an expanded practice analysis in 2019, obtaining surveyresponses from 3,153 newly licensed lawyers and 11,693 more senior lawyers.8 During the sameyear, the
unique blend of empirical and legal research, innovative solutions, broad-based collaboration, communications, and ongoing measurement in strategically selected, high-impact areas, IAALS is empowering others with the knowledge, models, and will to advance a more accessible, efficient, and accountable American legal system.
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