The Bar as an Obstacle

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I was delighted to see the ABA Journal name Joan Howarth and Deborah Jones Merritt two of their 2025 Legal Rebels. I’ve already mentioned Prof. Howarth’s book—Shaping the Bar—and will recommend that you read it if you haven’t already. The bar exam, and the obstacle it creates while simultaneously demanding far more of a law school graduate than a display of competence, is preying on my mind. As I work through this semester of teaching students how to improve their writing for the Multistate Essay Exam, I have a growing frustration that they are having to do this work.

When I worked at the Law Society of Ontario (f/k/a Upper Canada), the licensing side of the house was not something I worried about. But it’s been interesting to me to see how much of the mindset I came away with anyway. I don’t know that Ontario lawyers don’t spend a summer memorizing useless substantive law rules, but the competencies seem to be much more relevant to someone actually entering practice:

The person desiring to practice law in Ontario doesn’t have to do a bunch of essays, nor are they sitting for 12 hours of examinations over multiple days. Four hours, multiple choice, repeated because “barrister and solicitor”, but an 8 hour exam and you’re on your way. It is making more and more sense to me as time goes by.

Bar Exam Writing

One of the things that has been interesting as I prepare and deliver the essay writing course this semester is that I’ve seen the struggle it creates for students. In order to teach the writing, you need context. This can mean introducing substantive law the students have never seen while simultaneously asking them to develop a new writing style. Since the Multistate Essay and Performance Test writings are different genres (I really like that use of the word from The Complete Bar Writer) from styles they may have developed in law school, there seems to be a placement issue as well.

It begs the question: what are we trying to do?

The essay writing is an important genre. The style is very similar to practical writing that someone in a law firm or other legal professional role would write. It’s more direct than a law school exam, which may embrace a “clean the floor” approach (see Iriana’s Pizza in Little Rock for a “Clean the Floor” pizza) where every additional tangent or side thought gets points. This approach would encourage more writing without necessarily creating more value.

The tricky thing for me is that I don’t really know what has caused students to write in such a wide variety of styles. It may be that they have the perception that they need to write in a particular way or the scoring may have wrangled them into writing in that way. When we reviewed some sample essay answers, I heard a lot about “cutting the fluff” or “avoiding word vomit” and the like. I thought this was really valuable, because it means that they can see how the genres are different. Then it’s just a matter of figuring out how to adopt a new style.

Like so many things in law practice, this feels like a chicken and egg. If they need to write in multiple genres (research memo, brief, bar exam essay, bar exam performance test), shouldn’t those genres happen earlier in the law school curriculum? I think most schools teach common genres early on but the bar genres may not be something that is included. Yet the overlap to me between what we’re seeing from the sample essays and what I was writing 30 years ago at a law firm in Little Rock seems to be a very practical, normal writing style.

I’m not sure the answer is to move the writing around, though. Why are we even asking law school graduates to engage in something so subjective as essay writing to show minimum competence? There is no “right” way to write. Even among the essays I’m seeing from the students, there are a good dozen common ways to get to the same answer. Lawyers still need to have their voice in their writing (or else maybe we DO only need AI). And anyone who has reviewed bar essays will see that there are a wide variety of styles that result in passing grades. So maybe the writing isn’t the issue.

One thing I’ve seen from a good number of the students is that they know the law and they know the answers. But the exams seem to require that they show their work. But I don’t think lawyers do, so it’s almost penalizing the students who have mastered the material (or taken the classes in it) by slowing down or altering their decision-making process by asking them to draw it out explicitly in an unfamiliar (genre) format.

I will note that I have never taken the bar exam, and I don’t believe the Multistate essays even existed when I graduated law school. This is another thing that bugs me: there is a vibe-y-ness to these essays and what should or should not be in them. I realize there’s a grading rubric and the grader essays are freely available from the National Conference of Bar Examiners, but we’re still dealing with what are essentially subjective assessments.

That loops us back to the knowledge, if we can’t really test the skill of writing. And you can test the knowledge with multiple choice questions.

But the Writing…

One thing I’ve tried to make clear in class is that there is no perfect writing. This means that there is no one in the class (and I include myself) whose writing can’t get better. It gets better with practice and thinking about what genre you’re trying to engage in.

Lawyers post-bar exam remain notoriously bad writers. It’s legalese and 100-word sentences that include multiple causes and may not actually conclude. It’s sometimes sanctioned by courts when the writing becomes egregious, but even short of that, it can be unintelligible to lay person and legal professional alike.

If the writing is the element that requires minimum competence (the reason we aren’t doing multiple choice for 100% of the exam), then you would think that we would have a coherent outcome. All students would write in an identical format (something more exacting than IRAC or CRAC or CREAC, which themselves are not required but are a preferred approach) without additional training.

Over the semester, I am starting to see enough iterations of writing and the challenges students encounter to begin to find a path. If I were to teach this again, I would approach it very differently. My ideal path (as we close in on midterms) would be:

• choose a single substantive area (whether or not it is on the bar exam) that every student has already studied (Torts, Contracts, Civil Procedure, etc.). Otherwise, students are learning a new legal topic while also learning how to adapt their writing. In that situation, you can’t tell whether it’s the writing that needs work or the substantive knowledge. Since the bar exam over-examines substantive law, and students are required to memorize and regurgitate it anyway, adding that to a writing class (even a bar writing class) seems unnecessary.
• work with smaller classes. I get that it requires more instructors. I wonder if it could be done with 3Ls as a “teaching assistant” equivalent. I’m currently reading 60 essays and to provide useful feedback takes about 22-25 hours per essay per 60 students. It’s not a realistic requirement, because the time constraint reduces the number of essays that the expert writer (instructor) can provide substantive feedback on. If you are going to learn a new genre. you need to be writing MORE essays and getting MORE feedback, not less. I don’t think you can bring in outside lawyers or adjuncts, because they will either have learned a different genre style or will have forgotten the elements as they forged their own path.
• make it wholly virtual. I am a morning person. My best writing time is from 4-5am to about 10am. Asking me to improve my writing (or any skill) at the end of an 8 hour day guarantees that I will not be doing my best work. Also, if we’re practicing essay writing, and each essay is timed at 30 minutes, the instructor doesn’t need to be present for that event. A student can self-time, and the instructor can look at the essays that accumulate. What about cheating and proctoring? Give me a break. Unless the student is made to feel that the point of the class is a grade rather than a new writing skill for the bar exam, I don’t think any student is going to cheat. And if they do, so what? They won’t be able to replicate that on the bar. I would let the students self-select their times for writing, perhaps swap out specific class times with a broader set of office hours, and let each student work forward in the manner that allows them to build the skill up properly. I had to cancel class recently and I was amazed at how, suddenly, a lot of students wanted writing advice. I provided it via email with some practical guidance based on each student’s individual need, and it was probably a far more effective experience for them than showing up to my class.

For now, I’m keeping on with the way the course was designed. Well, with some modifications of my own as I go and try to be adaptive. I feel sorry for the law students who have to go through this rigamarole to be called to the bar. I am hopeful that, with people like Professor Howarth and Professor Merritt that we will go beyond even the NextGen bar and make more fundamental changes. You don’t have to look far these days to find lawyers who are engaging in questionable activities that, I think, call into question their professional competence. Every one of them passed a bar exam. I would love to see the bar exam become something lighter and more relevant and, frankly, less of an obstacle for students to have to hurdle.