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12/31/2018 6:16:00 PM
COMMENTARY: Lawyers: How high the bar?

Leo Morris is a columnist for The Indiana Policy Review. His column appears in Indiana newspapers.

There is an old joke riddle that goes:

“What do you call the person who graduates last in the class in medical school?”

“Doctor.”

There isn’t an equivalent joke for lawyers, but there should be. And if current trends continue, there likely will be.

According to news reports, Indiana is following the lead of numerous other states in experiencing a dramatic decline in the number of law school graduates passing the bar exam. Court records show that 1 in 3 prospective lawyers this year did not pass the July bar exam, and half failed in the February exam. In contrast, the pass rate was 74 percent in July 2015 and 67 percent in February 2015.

The Indiana Supreme Court has established a study commission to review Indiana's bar exam, how it's graded and the subjects included, and by next December recommend possible changes to the test's format or content. Issues to be examined include whether to reduce the number of areas tested in the exam, whether to de-emphasize the essay portion, whether the “pass” or “cut” score is too high and whether the exam has a “disparate impact” on certain groups.

As a layman, it sounds to me like the legal experts think becoming a lawyer might be too difficult for today’s students, so they’re considering making the standards easier. They might be lowering the bar, you might say.

There are some embedded assumptions here that I think need to be addressed. The first, and most obvious, is: We need more lawyers.

I confess that the answer to that is beyond me.

For one thing, making such a calculation requires more than a simple balancing of supply and demand. There are simply too many areas needing the specialized skill sets of specific kinds of lawyers. There might an overabundance in some specialties and a dearth in others, and I’m not sure a definitive answer is even possible.

For another, this isn’t something I’ve spent a great deal of time contemplating. Like most people, I think about lawyers only when I need one.

I’ve needed one exactly three times in my life, once when I was at fault, once when I was not at fault and once when there was no fault involved except the inability to get through a legal maze without help.

I was satisfied with the help I received one of those three times — not overjoyed but satisfied. I was very unhappy the other two times. So, to put the best face on it, the law profession has failed me 67 percent of the time. That gives me the experience — the standing, if you will — to challenge one of the other embedded assumptions at play: That we need more bad lawyers.

Because that is clearly where the state is headed.

Law school enrollments are dropping precipitously, many experts agree, because the cost keeps going up, but there is less and less chance of landing a job at one of the biggest, most prestigious law firms, the best path for wiping out all that debt quickly. So, the law schools have lowered the standards for whom they will accept.

And if current students aren’t as good as previous generations of students, they will naturally have more trouble passing the bar exam, so the only logical solution is to make the bar exam easier. It doesn’t take a genius to figure that out.

Ted Waggoner, a Rochester attorney who has chaired the Indiana State Bar Association’s Legal Education Conclave, said he hopes the commission is able to find the bar exam’s “sweet spot” — the place where potentially bad lawyers are kept out of the profession, and potentially good lawyers are allowed in. 

Let’s grant that he is sincere in that wish and presume that commission members will act in good faith in keeping competency on its list of desired goals. But when they put so much emphasis on “disparate impact,” it is fair to wonder if they will worry more about who will become lawyers than about how good they will be.

It is said that hard cases make bad law. It is equally true than bad lawyers make cases hard. If it’s going to be more likely that the next lawyer I need is from the bottom of the law class and barely made the lower bar exam cut score, I sincerely hope the case is not a hard one.

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Editor, John C. DePrez Jr.; Executive Editor, Carol Rogers; Publishers: IBRC and IAR


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