The Truth about the Bar Exam Pass Rate. Why do so many fail?

The July 2021 California Bar Exam results come out on Friday, November 12. Hopefully July examinees will enjoy a good pass rate this year. Unfortunately, pass rates on the California Bar Exam for a July bar exam round are rarely over 48% to 52% and for a February bar round, the pass rates are even worse, sometimes as low as 32%.

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SO WHY IS THE PASS RATE SO LOW? While the bar exam is not an IQ test, it is definitely a difficult test. However, if a person has the right bar prep program, the right kind of practice, exam feedback and a realistic study plan, the California Bar Exam is very doable. Unfortunately, the California Bar Exam is made nearly impossible for many due to bad bar prep. I do not mean that the examinee is not preparing well. I mean the national bar prep companies are no longer preparing examinees adequately for the California Bar Exam. If you think about it, there are about three national bar prep companies that most students sign up with, often during their first year of law school. Students are encouraged to sign up during their first semester (long before a student even knows what they will need in terms of bar prep) to “freeze the price” of their bar prep course.

Also, did you know that one of these national bar prep courses has been sued multiple times for anti-trust violations requiring payments of millions of dollars. And one company was sued by the National Conference of Bar Examiners for stealing MBE questions by paying people to take the bar exam and write down MBE questions. That law suit ended with a multi-million dollar judgment and, I believe, a few disbarments. The history of bar prep is sordid and to this day, it is unregulated.

WHO OWNS THE CALIFORNIA BAR PASS RATE? The national bar prep companies. Think about it – most law school grads take one of the “big box programs.” So if a given bar round has 3,500 examinees sitting for the exam, you can be sure that 90% of those examinees take one of the big three courses. And, therein lies the pass rate problem. The majority of examinees who fail, have taken one of the three big prep programs. These companies, in my opinion, do not prepare examinees adequately. Read on for what bar prep programs used to provide and you will understand why the California Bar pass rate was 70%.

When I first took and passed the bar in 1994, right out of law school, the July pass rates were usually 70%. And February was about 50%. It was not an easier exam at that time. In fact, the July 1994 exam was one of only three times in the past twenty plus years that tested Evidence in a transcript/race-horse style.

SO IF THE BAR EXAM IS NOT HARDER TODAY THAN IT WAS 20 YEARS AGO, WHY ARE SO MANY EXAMINEES FAILING? The real reason why the pass rate historically so much higher is because all, and I MEAN ALL, major bar prep companies provided a three and a half to four month program. I used a four month program. This was standard. In addition, we received real feed back on 30 plus essays. Grading and feedback was provided within two days of submission. We practiced the test over and over again. Memorization was important, but understanding the substantive law in the context of the exam, was most important. Every law student was expected to start bar prep while in their last semester of law school.

In the late 90s the Bar Prep industry took a hit with anti-trust and fraud law suits. After that, all of the sued courses seemed to take a nose dive in terms of what was actually provided to test takers. Writing Essays and Performance Test was no longer encouraged because let’s face it, providing exam feedback takes a lot of time and time is money. Providing six to eight weeks of bar prep is much less expensive than providing twelve to sixteen weeks of bar prep. And there went the pass rate, right along with examinees’ self esteem and confidence.

MORE REASONS WHY THE PASS RATES ARE NOW SO MUCH LOWER: We prepared using MBEs written by the National Conference of Bar Examiners (the NCBE) And, yes most of us supplemented the MBEs from other resources. But, we knew that the most important questions to master where those drafted by the NCBE. We also were told the truth about what we needed to do to achieve a passing score on the MBE portion of the exam. In order to expect to pass on the MBE portion, practice MBES needed to be over 80% for every topic. This was when the MBE portion of the California Bar Exam was only worth 35% of your total score. Now it is 50%. Do the math.

MORE UNIQUE MBEs IS NOT NECESSARILY BETTER. Do not scramble up your bar studies with non-NCBE questions drafted by your course with the real MBEs drafted by the NCBE. All this will do is serve to dilute your MBE knowledge. Why? Because what is factually a “taking by force” such that a robbery has occurred never changes on the questions drafted by the NCBE. Do not clutter things up by going to multiple sources for MBEs. Stick with MBEs written by the authors of the current exam – the NCBE.

Another note, if you take the MBE practice questions in the major online programs (as many do) they provide you with national averages for their enrolled students which is usually about 62% to 64%. That is a D. Do not be persuaded to think that this is a good score and that because you are at the “national average” that you are doing fine. For whatever reason, examinees fall for this and think it is enough. The truth is, it is NOT enough. Your goal should be able to achieve a 85% to 90% pass rate on your practice MBEs in order to earn a passing score on the real MBE.

MBE TAKE AWAYS: 1) Focus only on the MBEs that are drafted by the National Conference of Bar Examiners (NCBE), 2) Do all of the NCBE MBEs multiple times until you are able to reliably achieve 90% correct, start practicing MBEs as soon and possible and 3) on your first pass through the NCBE MBEs, complete one MBE at a time and then review the answer explanation carefully before moving onto the next MBE question. This is really important.

I do not endorse any MBE prep courses or MBE tutors. However, I do recommend two resources for the MBEs The first is the “Strategies and Tactics for the MBE” by Steven Emanuel, 7th Edition.* (Stick with volume I, Volume II are questions made up by authors and not actual NCBE questions). The second resource is the NCBE. If you go to their website at NCBEX.org you will find inexpensive past exams that you can purchase online.*

*I do not receive any compensation for endorsing the above resources.

WHY IS THE FEBRUARY BAR PASS RATE LOWER THAN THE JULY PASS RATE? Let’s look at the difference between the pass rates for a February bar round versus a July bar round. Many students who fail a July bar exam are reluctant to take the February bar round because the February pass rates are typically low. However, if you know the reason why the February Bar Exam pass rates are usually low, you can make certain that you are not making the mistake that so many February examinees make (more on this later).

The July bar pass rates: July is higher because more students from ABA law schools are sitting for the exam. ABA law school graduates have a better pass rate than unaccredited law schools. In addition, there are more first time takers in July than in February. First time takers pass at a much higher rate that repeat bar examinees. But, the overall pass rate for a July bar round is typically under 52%.

The February pass rates: The consistently lower pass rates in February are due to many things. The pool of examinees for the February Bar Exam is typically a different group than the July bar exam. For example, there are more repeat takers in February. Repeat takers traditionally have a much lower pass rate than first time takers. There are many reasons repeat takers do not typically do as well. Repeat takers often retake the same course that did not work for them the first time. Repeat takers may not have any time off from work on their second or third, etc. attempt. This leaves many students without enough time to effectively study. In addition to having more repeat takers on the February bar exam than in July, there are also more examinees in February that come from unaccredited law schools. This is because a lot of online law schools and other unaccredited law schools graduate in August or in December.

I hope you found this post helpful. For more information on bar prep for both the California Bar Exam and the Uniform Bar Exam (UBE), follow this blog, follow the BarExamGuru Youtube Channel or feel free to reach out to us at 213-529-0990 or contact me through the Bar None Review website. For a video on this topic, click here.

All the best to everyone waiting for bar results from July and to those who are preparing for February!

Lisa Duncanson, Founder/Program Director, Bar None Review