“Change does not necessarily assure progress, but progress implacably requires change.” — Henry Steele Commager[i]

Editor’s Note: Reprinted with minor modifications from The Bar Examiner, Vol. 93, No. 1 (Spring 2024): 65-67, with permission from the National Conference of Bar Examiners.

Over the past two decades, I have graded the bar exam in Idaho 36 times. The exam has certainly changed over this time. Prior to 1974, the exam consisted of thirty essay questions drafted by Idaho practitioners. In 1974, Idaho adopted the Multistate Bar Exam (“MBE”) developed by the National Conference of Bar Examiners (“NCBE”).[ii] Thereafter, Idaho began moving away from drafting its own essay questions, adopting NCBE’s Multistate Essay Examination (“MEE”) in 1990 and NCBE’s Multistate Performance Test (“MPT”) in 2001. In March 2011, Idaho eliminated all Idaho specific essays and adopted NCBE’s Uniform Bar Exam (“UBE”). At the same time, Idaho developed a state-specific post-admission CLE requirement to educate new Idaho lawyers on Idaho laws.

In 2018, the NCBE created a nationwide Testing Task Force to evaluate the current bar examination, analyze the knowledge and skills newly licensed lawyers should be expected to know, and determine how that knowledge and those skills should be tested on the bar examination. After years of research, including a national practice analysis survey of over 14,500 lawyers, the NCBE developed the “NextGen Bar Exam.”

In 2023, the Board of Commissioners of the Idaho State Bar established a task force to explore whether they should recommend adopting the NextGen Bar Exam in Idaho.

As a bar grader and member of the Idaho NextGen Bar Examination Task Force, I have attended NCBE conferences and workshops, and I have worked with the Idaho State Bar regarding the grading process. The NCBE administered a field test of the NextGen Bar Exam in January 2024. To better understand the grading-process changes that would be necessary if Idaho adopted the NextGen Bar Exam, I volunteered and was selected to grade the NextGen field test.

After grading the NextGen field test, I was struck by the progress made in ensuring that the new exam provided a better assessment of the real-world skills and knowledge necessary to be a competent attorney. Examinees still need to know and understand the law.  However, they no longer have to memorize, for example, the doctrinal minutiae of every complex or nuanced legal topic. Instead, for some questions, examinees must identify what legal research to undertake, what facts are important, and what their clients need to know.

Although the grading process may not be front of mind for my colleagues in the bar, for longtime graders like me, grading the high-stakes bar exams is an enormous responsibility. Graders need to ensure fairness to both examinees and the public. And, because of the score portability afforded by the current UBE, a benefit that continues with the NextGen Bar Exam, it is important that one jurisdiction’s grading standards do not significantly differ from another’s.

Over my years of grading, I have thought a lot about best practices to ensure fairness and consistency. However, the challenge with the MEE and the MPT is that it is impossible to eliminate the subjectivity that can come with grading essay questions. NCBE provides many resources through rubrics, model answers, and workshops to help calibrate graders. However, grading consistency remains a challenge requiring both awareness and vigilance.

The NextGen Bar Exam eliminates many of my concerns regarding grading and consistency. It directs examinees to provide written answers to address specific tasks in a practice-oriented context, such as identifying errors in a contract or interpreting a provided statute. These tasks require examinees to provide concise and focused responses, in contrast to the more open-ended format of the MEE. These changes help ensure that grading will be more objective, fair, and uniform within and throughout jurisdictions. Thus, we can be confident that passing examinees are “minimally competent” to practice law regardless of when or where they took the exam.

            The NextGen Bar Exam not only makes grading more straightforward, but it is also an improved bar examination. The NextGen Bar Exam continues to require that an examinee know the foundational concepts and principles of eight core subjects.[iii] But the NextGen Bar Exam also requires that examinees have the necessary foundational lawyering skills to practice in those core areas.

These foundational lawyering skills, consisting of legal research, legal writing, issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, client relationship and management, are vital to the practice of law, and we expect all newly licensed attorneys should have these skills. Yet, to date, these skills have never been tested. By testing lawyering skills, the NextGen Bar Exam ensures, for example, that not only does an examinee understand contract law but also knows how to draft a contract based on a client’s needs.

The NextGen Bar Exam tests foundational concepts and skills using multiple-choice questions, integrated question sets, and performance tasks. Integrated question sets are geared to quickly assess an applicant’s ability to analyze, synthesize, or evaluate the information provided. Performance tasks are more akin to the current MPT; however, the call of each question is narrowly tailored to assess an applicant’s skills in legal research and written legal analysis.

The NextGen Bar Exam ensures progress on two fronts. First: it is a better test of lawyering skills. Competent representation does not require mere memorization of the law. Nor would we expect newly licensed attorneys to rely solely on their memory; to do so would constitute malpractice. A licensure exam should test for the skills a profession requires. Second: the NextGen Bar Exam has a more objective, fair, and consistent grading format. Graders can be more confident in the validity and reliability of the grading process for both the applicants and the public. These are the strengths of the NextGen Bar Exam, and I am excited about the changes and progress to come.

Carole Wesenberg is a Career Law Clerk for the Honorable N. Randy Smith with the Ninth Circuit Court of Appeals. She is also an Instructor for the Paralegal Studies program at Idaho State University. Prior to her employment with the Ninth Circuit Court of Appeals, Ms. Wesenberg served as an associate with Quane Smith, LLP in Idaho Falls, Idaho, where her practice focused on insurance defense law.

Ms. Wesenberg received her Bachelor of Science degree in Geography from Montana State University in 1994, and her M.S. in environmental science from Shippensburg University of Pennsylvania in 1997. She received her Juris Doctor from Southern Illinois University in 2000.

Endnotes:

[i] Henry Steele Commager, “We Have Changed—and Must,” New York Times (April 30, 1961), at 77, available at https://www.nytimes.com/1961/04/30/.

[ii] The NCBE is a not-for-profit corporation founded in 1931 that develops licensing tests for bar admissions.

[iii] The core subjects are civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law, and real property. Beginning July 2028, family law will be included as a core subject.