It’s barely 2019 and I’ve already broken a promise to you. (Probably won’t be the last.) I promised that I wouldn’t write again about the State Bar of California for at least a week. However, emails prompted me to break that promise. Rather than pontificating any more about the wretched July 2018 bar passage rate and the reasons for it (your guesses are as good as mine), this week’s column reflects some readers’ thoughtful comments about the state of the California bar exam. (And, yes, people do read my column and do email me. Thanks to ATL for deleting the comment section that had turned into a snark fest. These readers have names attached to their emails, but I am quoting them anonymously.)

For whatever reasons, they have not been able to scale the 1440 wall here in California. One example — comments from an attorney who failed the attorney’s exam — but I think his comments apply equally to both sets of bar takers:

I spent $6k prepping and traveling for the California attorney exam in July, spent about 300 hours prepping, similar to my effort for the North Carolina bar which I passed first try. Yes, my LSAT scores and school quality were not great, but I did all this while married and raising small children. I also knew ahead what the California bar is about, so I was prepped for high likelihood of failure. But here is what I’d like to know: If California really cares about the Bar “protecting” Californians and what skills are really necessary to effectively practice, and whether or not this silly law school style exam on steroids is a good indicator, then why in the hell don’t they allow reciprocation? No one who has successfully practiced/litigated can seriously assert (unless they are nuts) that the LSAT and bar exam success is what got them where they are. I believe the exam is a money racket, almost 100 percent, combined with the fact that California is overpopulated in all nice areas (where the lawyers will head) and they are partially alleviating saturation by setting the absurd cut rate. The director [sic] will not admit this, she will only pretend to be concerned, and state that they just want to protect Californians. I don’t buy it. I’ve represented dozens of Californians in Asheville, North Carolina (one of our largest tourist/transplant populations is from California because of our progressive culture here), and I’ve counseled California lawyers on how to fix their client’s problems here. I’ve helped many California citizens with great results and competence with everything from speeding, to drugs/DWI, etc., many serious offenses, lost licenses, etc. …Common sense tells you that the bar exam is just a hoop. We could’ve had a bench press competition to see who got a license in July of 2018 (I would’ve passed), and it would’ve been just as good an indicator as that silly law school-style IRAC contest. My skills, knowledge, and service to those with less voice is demonstrated, and yes, I had crummy credentials going into the 2013 North Carolina bar, and I passed it first try. They are creating a bottle neck, and collecting millions in fees over and over from the same people, and I’d argue that they are doing little more than that, but that is okay, fine, whatever. I’m just sick of seeing their claims when many of your professors out there are saying it’s clearly ridiculous, and throughout history California has failed many, many notable legal intellectuals, future leaders, and so on. It’s a silly concept that I remember from law school, where they pretend these silly academics are what makes a great lawyer. Law review makes great associates who’ll work 65 hours per week, and clerks who’ll write beautifully for judges, but not necessarily the men and women needed by REAL people out there in the trenches.

And one reader posed a question that I have never thought of (yes, that does indeed happen):

It is the essays, those scored by a part-time employee paid by the number of tests scored, where the big drop-off happens. Giving an essay grader a template of what an essay answer should look like has become a method of speeding through the volumes of tests to be scored in a manner that sacrifices reasoned judgement [sic] and review for efficiency (more money per hour earned). I do not believe that this aspect, the bar exam essay graders, have been fully addressed. The mechanical, objective MBE can easily be compared nation-wide (and California is ahead of the curve here). It is the subjective (no matter how objective an appearance is put on it) that differs from the rest of the nation score-wise. How are these part-timers selected? What are their motivations? Foxes guarding the hen house? The one day California Attorney Exam is a telltale indicator. The fail rate is near the same. So, attorneys who have been practicing for years and years are failing at, or near, the same rate as brand new law students who never held an attorney job? This is a clear indicator that it is the manner and method of bar exam essay grading (attorney exam is only essay) that is the causal connection to the low bar scores.

And a third reader chimes in with another really good point and I am paraphrasing here: the bar exam favors those who think and write quickly. Slow but steady doesn’t win this race, but perhaps it should. Is speed a desirable quality in law practice?

So, what is the answer to the California bar exam conundrum? Would the State Bar be lowering standards to reduce the cut score?

Technology is changing almost everything in our profession today. Does the bar exam need to acknowledge those changes? Consider the words of the late Herb Kelleher, the flamboyant and wildly successful CEO of Southwest Airlines: “What we’re talking about here is your future. If we don’t change, you won’t have one.”