Building a Better Bar: The Twelve Building Blocks of Minimum Competence

108 Pages Posted: 26 Feb 2021 Last revised: 20 Apr 2021

See all articles by Deborah Jones Merritt

Deborah Jones Merritt

Ohio State University (OSU) - Michael E. Moritz College of Law

Logan Cornett

University of Denver - Institute for the Advancement of the American Legal System

Date Written: December 1, 2020

Abstract

The bar exam tries to distinguish minimally competent lawyers from incompetent ones: it exists to protect the public from the harms of incompetent legal representation. That protection is critical to maintaining the integrity of the profession, but the bar exam achieves that goal only if it effectively assesses minimum competence. Although the bar exam has existed for more than a century, there has never been an agreed-upon, evidence-based definition of minimum competence. Absent such a definition, it is impossible to know whether the bar exam is a valid measure of the minimum competence needed to practice law or an artificial barrier to entry. We designed this study to address these substantial gaps in our knowledge, build on the existing research, and develop an evidence-based definition of minimum competence. We conducted 50 focus groups using a protocol we developed to gather data about the knowledge and skills new lawyers need to practice competently. Of those focus groups, 41 were conducted with new lawyers, while the remaining nine were conducted with those who supervise new lawyers. The data from these focus groups suggest that minimum competence consists of 12 interlocking components — or “building blocks.” Based on the data, it is also clear that exams should be open book and provide greater time to complete. Multiple choice questions bear little resemblance to the cognitive skills lawyers use and should be avoided; instead, written performance tests do in fact resemble many of the tasks that new lawyers perform and are encouraged. Additionally, practice-based assessments, such as ones based on clinical performance, offer promising avenues for evaluating minimum competence beyond the bar exam. In this report, we also outline 10 recommendations that courts, law schools, bar associations, bar examiners, and other stakeholders should consider in their efforts to move towards better, evidence-based lawyer licensing.

Keywords: bar exam, minimum competence, law school, law

Suggested Citation

Merritt, Deborah Jones and Cornett, Logan, Building a Better Bar: The Twelve Building Blocks of Minimum Competence (December 1, 2020). AccessLex Institute Research Paper No. 21-02, Available at SSRN: https://ssrn.com/abstract=3793580 or http://dx.doi.org/10.2139/ssrn.3793580

Deborah Jones Merritt (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-7933 (Phone)
614-292-4868 (Fax)

Logan Cornett

University of Denver - Institute for the Advancement of the American Legal System ( email )

2044 E. Evans Ave. Suite 307
Denver, CO 80208
United States

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