Deconstructing the California bar exam: Why is the Pass Rate so Low?

The California bar exam is known for being one of the toughest exams in the country, if not the toughest. The pass rates for the California bar exam have fluctuated over the years, ranging from as low as 37% to as high as 63.2%.

On average, February bar pass rates are lower than July bar pass rates. There are many reasons for this difference that I will address a bit later.

However, the pass rate from the February 2018 bar exam of 27.3% is unprecedented. Just to provide a picture to those of you who may not have familiar with the California bar pass rates and fluctuation over the years, here is a breakdown of the bar pass rates going back to 1951.

Breakdown of California Bar Pass Rates: 1951 to 2018

It has not been uncommon to see a ten year period of declining or lower pass rates that is then suddenly followed by a fairly high pass rate. For example: the pass rate on the California bar exam in 1994 was 63.2% (the highest pass rate on record since 1951), July 1997 was 62.9%. But then for nearly a decade, California bar exam pass rates ranged from as low as 33% to 56% until July 2008 when the California bar exam pass rate jumped back up to 61.7%. Since that time the pass rates have continued to fluctuate, with periods of decline and periods of higher pass rates. But, in all the usual fluctuation, there has been nothing as low as the February 2018 results.

So what is behind this unprecedented low pass rate? The California bar examiners do not have an answer to this question as of yet. But, they are undertaking a study and they are providing support to examinees through a new program: the “productive mindset intervention program.” This program is designed to improve test performance through online messages delivered prior to the exam. To date, over 1,700 applicants for the July 2018 bar exam have registered for the “productive mindset intervention program.”

So what does all of this mean? Are examinees taking the July 2018 bar exam just guinea pigs in this new era of testing? Or is the exam really not all that different than previous exams and really no more difficult? Why is the pass rate so low?

I have some theories . . . none of which are conspiracy theories . . . 

But, before I get into my theories, I want to make a few points that I think everyone should consider.

First of all, the bar examiners are not out to get you. But, they are out to protect the public and to protect the integrity of the legal profession. These two things are of extreme importance. So important, that the bar examiners decided to take the approach that administrators of other exams – like the medical boards – have taken. The board of medical examiners considers it preferable to allow someone who is passing to fail rather than risk passing someone who is not at this same level and therefore might cause injury to the public. This is my summary from what I have read over the past year from the state bar exam’s review and investigation into whether or not they should lower the “cut score.” Essentially, it is preferable to have a few applicants fail (who arguably should have passed the exam) than to have anyone pass who has not demonstrated the skill set to pass as this could jeopardize the public and the profession.

What does this mean for applicants? You need to strive for above passing scores on all aspects of the exam. And, this is something that you CAN accomplish (more on this later).

As you likely know, the California bar examiners have taken some significant heat over low pass rates (even heat from law school deans) all of which resulted in a study of the exam by outside contractors who specialize in exam administration and testing. One of the proposals during this review was whether or not it would be appropriate to lower the “cut score.” At the end of the day, the California state bar decided not to lower the “cut score.” And, just this past year, the California Supreme Court upheld the State Bar’s decision not to lower the “cut score.”

I think if you read what the California bar examiners have released from the studies (I have) you might agree with their decision not to lower the cut score. But, I don’t think anyone expected to see a 27.3% pass rate. Remember, the July 2017 pass rate (still under the same cut score, and the new 2-day bar) was 49.6% – a normal statistic for a July bar round. In fact, this was an improvement in the California bar pass rate. So up until February 2018 most were thinking things were looking up. Okay . . . onto my theories . . .

The Two Day Effect and the February Effect:

In July of 2017 the California bar examiners dropped the three day (18 hour) bar exam in favor of a two day, 13 1/2 hour bar exam. On the first administration of the new two-day bar exam in July of 2017, the pass rate went up about 6% over the prior July exam. All seemed well. But, July bar takers always enjoy a higher pass rate than those taking it in February.

Why do July bar applicants enjoy higher pass rates than February applicants?

Let’s take a look at some possible reasons why July applicants enjoy higher pass rates. First, more of the applicants on July bar rounds come from ABA law schools. ABA law schools have both higher admission standards and, consequently, higher pass rates than non-ABA law schools. Second, more of the applicants on the July bar rounds are first time takers, right out of law school. These students are typically those who are studying the most and most actively and most recently. First time takers pass at a higher rate than repeat takers. Third, these students right out of law school have likely taken time off from work to study. Fourth, most first time bar applicants take a review course. All of these factors (including fewer repeat takers making up the applicant pool in July) result in a higher pass rate for July examinees.

So what about “the Two Day Effect?”

I have a theory – and it is just a theory. It is this: many, many people who have not taken the bar exam in over a decade or even longer, decided to take the new two-day bar exam. Why? Because two days is easier than three. I am not saying two days is easier than three. I am repeating what so many bar applicants have told me: “I am going to wait and take the two day bar exam.” And, especially after the increase in the pass rate last July (the first administration of the two day bar exam) it made sense for a lot of people to give the California bar exam another try. I was inundated with phone calls and emails about the February bar exam from applicants who were thinking about taking the exam now that it was only two days.

Many of these prospective applicants had not taken the exam in over a decade or more. You might say that their legal knowledge was a bit rusty. It is one thing to take a bar review course immediately after law school and expect that to work. But, it is a far different thing to expect a review course (typically 6 to 12 weeks in length) to be able to prepare someone for the exam after being out of testing for 10 or more years. The Two Day Effect, in my opinion, brought out a lot of repeat examinees who had not prepared or studied in many years. I think for these examinees it left far too much of a bridge to gap. This is not to say that someone can not pass the bar exam after an absence of studying for a decade or more. I have worked with many students who were decades out from law school as well as attorney takers looking to move to California. These applicants have success but, they are successful because we take a different approach to their studies and build in features to bridge the gaps of being out of bar study and test mode.

The 50% MBE Effect (another part of the “two day effect”):

Some of my students, upon hearing the MBEs would now be weighted 50% of an applicant’s score, were absolutely giddy. These are students who do well on the MBE portion and felt that this new two day exam would benefit them and put less emphasis on the written portion. Well, this could probably not be less true. The 50/50 weighting of the written portion and mbe portion does not necessarily mean a person who is weak on the written and strong on the mbe portion will have a better opportunity to pass. Instead, it means applicants truly must be equally good at both sections. This is not an easy feat. And I believe that most examinees placed less emphasis on the written portion this year.

Who is to blame? Bar prep providers, law schools, applicants?

I think that law schools and bar prep providers all need to step it up in terms of what they provide to their students. If you look at the national bar review companies and where their emphasis is for California examinees’ prep it becomes clear that these companies under prepare their students for the written portion of the California bar exam.

How can I say this? Well . . . the major bar prep companies fail in preparing applicants for the California bar exam in at least three ways: 1) They typically only assign and “grade” two or three written practice exams. This de-emphasizes both the significance of the written portion and the importance of writing practice exams. Many examinees don’t get around to writing any practice exams. But, even those that do, well, two or three or four practice exams is simply not enough. 2) The major bar review courses do not provide essay writing approaches (here is an example of what I mean by an essay approach), and 3) bar review courses rarely prepare applicants for the unique writing style and expectations of the California bar examiners. The California bar examiners (as evidenced by 25 years plus of past released essay and performance test answers) require a specific writing style and approach. Because the national bar review companies prepare for all 50 states, they rarely put anything together that is specific to writing for the California bar examiners. As a result, examinees are often underprepared for the written portion of the exam.

Two or three essays is simply no where near enough writing practice if you want to pass the California bar exam. Also, compare this to the emphasis on the MBEs (which, by the way, requires absolutely no work on the part of your bar review provider – they do not have to grade it or review it) – typically bar prep companies recommend you complete 50 MBEs each day during your studies.

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I can tell you that writing only two or three written exams (essays or performance tests) will most likely result in a failing bar exam result. The written portion can be the most mentally demanding of an examinee from their point of knowledge, skill and analytical abilities. Why? Because, you have to come up with everything on your own. All from memory. You have to figure out what the issues are on the essay, come up with an approach for that topic or topics, and come up with all of the legal definitions and produce these in a written form. Contrast this to the MBEs where you typically only have one legal issue to resolve and the answer is actually there (somewhere) on the page. The MBEs are not easy, but they certainly do not require as much from you as the written portion requires in order to succeed.

Law Schools and Applicants

Law schools could do a lot better by their students. I know this, I have taught at four Southern California law schools and have personal knowledge of how distant faculty and administrations can be regarding bar prep. The focus in recent years has improved at some schools. But, quite honestly I was pretty shocked when law school deans all got on board, writing a letter to the California bar examiners essentially saying that the California bar examiners needed to change the test so that their graduates would enjoy better pass rates. Wow. While I certainly believe that the California bar examiners need to administer a fair exam (this includes the actual test, informing everyone what is tested, providing examples of testing and providing examples of passing or better answers) it is also the responsibility of law schools to adequately prepare their students for the rigors of the bar exam. If entrance requirements are low or lower than past years, then pass rates will also be lower – there is a relationship between applicants’ LSAT scores and pass  rates on the bar exam. I believe that law schools have an obligation to students – especially if they are choosing to lower their admission standards for the sake of enrollment.

It is also the responsibility of student to take their studies during law school seriously and with passing the California bar exam in mind. I think their is a lack of focus on the bar exam in law schools. Some are providing programs to assist students. But, all too often I find that many of my students come to me without understanding some of the basics that they really should have under their belt upon graduation. I know that this is the case and as a result, our materials are designed with this in mind. In other words, if students are leaving law school without understanding how to write a First Amendment Speech essay, then I know that I have to prepare my student for this challenge. Our materials reflect the order and approach that the California bar examiners are looking for in an above passing answer. I will provide a mini approach for the First Amendment from our Bar Exam Cram Sheets in a future post so you can see what I am talking about.

Well, this was a bit of a rant I suppose. But, I wanted to share these thoughts as I am spending my days on the phone saying all of this over and over, so I though it should be on my blog for all to see.

If you have just taken the February bar and were unsuccessful, please do not lose heart! This test is NOT an IQ test. Do not give up. This test is do-able. However, you need to do it the right way. I will be posting more soon.

Thank you for following this blog. All the best to everyone who is preparing for the July bar exam!

Lisa Duncanson
Bar Exam Guru
Founder/Program Director
Bar None Review
email: barexamguru@yahoo.com

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