It’s a rite of passage for law school graduates to complain how stupid, pointless, expensive and traumatic the bar exam is. And to some extent, they’re not wrong, even if their enlightened self-interest prevents them from understanding its purpose in the bigger picture of finding some mechanism, imperfect and open to grievance as it may be, to determine whether someone has the minimum knowledge to be handed the monopolistic responsibility for other people’s lives and fortunes.
You know all those really bad lawyers? They passed the bar. And if they’re so stupid and passed, you should be able to as well. And if you can’t pass after multiple tries, there is a very strong likelihood that you aren’t the legal genius you, your mother and your friends on social media believe you are. Spare us the myriad excuses for why you didn’t. We’ve heard them all. No lawyer ever won a case by making the best excuses for shitty lawyering.
Taking a test that could determine the trajectory of your future, not to mention whether you wasted the past three years of your life, has an inherent traumatic element to it. So does every trial and oral argument, although the price for failing is paid more by the client than you, so it’s not as personal. Overcoming these tough moments is also part of being a lawyer, and some would argue being a human being as life will occasionally put difficult hurdles in our way even though some would greatly prefer never having to exert the effort to overcome any adversity greater than not being validated on twitter.
These are the means by which we’re tested. Yes, they can be unpleasant, even traumatic. No, we are not entitled to become lawyers by taking a test that never mentions words or issues or fact patterns that are now recognized by a particularly fragile cohort is off limits.
I’m hearing reports from bar exam takers that questions had fact patterns involving brutal rape & police brutality. Has the NCBE no empathy at all? Questions on these topics are wholly unnecessary.
It’s not so much that it’s necessary, any more than a story about a pregnant 80-year-old is necessary to demonstrate knowledge of the fertile octogenarian rule. It’s whether it’s off limits, as Jeannie Suk Gerson warned about in 2014. The legal academy saw this coming for a while, and many either acquiesced or agreed that empathy demanded they pander to any assertion of trauma by a law student.
It was madness, and a serious dereliction of duty. It was their job to train mush-minded kids to become lawyers, not assure their three years of school would never inflict any unpleasant thought. Lawyers deal with real world problems of clients, and if they can’t do it in law school, they sure as shit won’t be capable of doing it in the courtroom. But this isn’t the classroom. This isn’t the courtroom. This is the bar exam.
My further point in the thread, rather, is that ~because~ we spent quality time on the topic in class, it’s not necessary for the bar exam, where the stakes are so high and tensions are already extreme. But all that aside, the analogy medical school in the article is fundamentally flawed. You can’t become a surgeon and never handle blood. But you CAN become a lawyer and never handle a rape case. A solution, maybe, would be mini subject-matter exams, but that would take years to produce. In the meantime, simple empathy is needed.
It’s true that not every lawyer practices criminal defense, or even personal injury law, and many will make it through their entire career without ever have to confront this particular “demon.” And if lawyers were admitted solely as niche practitioners, specializing in real estate closing or mergers and acquisitions, there would be no cause to test them on rape law or police brutality. Of course, it would also mean most legal jobs were off the table, and many lawyers go in expecting to practice one kind of law and end up a decade later doing something entirely different. It’s hard to know what the future brings until the future brings it.
But that last sentence is the one that reflects the core issue.
In the meantime, simple empathy is needed.
Is this about empathy? Should it be? Granted, empathy has been fetishized as an inviolate right by many, who believe they are entitled to a life, a universe, where the rest of the world must put their feelings above all else. That may be fine in a bubblewrapped academic environment, where prawfs are more concerned about post-course surveys and not being the target of a Title IX complaint than turning out students who can think like lawyers, and turning away students who can’t.
No lawyer is guaranteed that they will go out in the world, be entrusted with other people’s lives and fortunes, without hearing a discouraging word. It’s possible for that to happen, but it’s also possible, if not more likely, that you will be subjected to great stress, vicious clients and “triggering” fact patterns. If the mere mention of rape or brutality on the bar exam evokes a cry for empathy, a test of one’s ability to face unpleasant, maybe even traumatic words and memories, and still perform sufficiently well as a lawyer to deserve the trust of a client, then the bar exam has done its job of protecting clients from someone who can’t be trusted to be tough enough to put their clients first and their feelings second.
No, it wasn’t “necessary” that the bar exam include these particular pop triggers in the test. What is necessary, until such time as there is a separate bar exam for lawyers who only want to do real estate closings, is that wannabe lawyers possess the mental toughness to overcome their personal “trauma” if they aspire to a future of being a lawyer. Perhaps the most important thing the bar exam tests is an individual’s ability to accept the premise that being a lawyer is not all about you, but about the client you represent. If you’re too narcissistic, too self-absorbed with your own hypersensitive feelings, to make it through the bar exam, then the test has done its job.
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Man oh man has the world passed you by. And me too, but not the hashtag variety. “Wolf”, he cried, but his alarm fell like a tree in the woods, unnoticed by any other than the rest of the old woods. (I truly hope not.)
Dude, what else can I do but try to remind those who still care about something other than their fragile feelings that they’re not alone?
> mental toughness to overcome their personal “trauma”
$20 says that the people complaining have experienced neither rape nor police brutality, so it isn’t even their personal trauma–it’s someone else’s trauma that they’re borrowing in an effort to play the victim
I would not take that bet.
Old bar exam question:
Toby had a few drinks at the Plastic Rhino while waiting for the brake job on his F-150. Mechanic Joe found Toby there, telling him the job was complete. While walking back to the garage, Toby fell a couple times. With each, Joe picked him up. Officer Juggles saw both falls while eating a doughnut in his unmarked cruiser. It was lunchtime.
Minutes later, Toby was driving US-1 in Lawtown. He struck a curb and the right front wheel came off the F-150. At the same time, Sheila was crossing US-1, leading her 3 year-old niece. As the wayward wheel continued, it disintegrated, exposing steel. With its last bounce it struck Sheila, decapitating her. The niece cried.
Toby fought for control of the truck, but lost. It struck the huge glass window of Artie’s Artworks, damaging a Van Gogh original and crushing Artie’s lunch from Barbie’s Bakery, which wasn’t very appetizing to Artie because Barbie always used too much salt.
Explain all potential claims and the factual basis for those claims.
What would the new question look like?
There are two types of bar exams. There’s the bar you pass at age eighteen or twenty-one, depending upon jurisdiction. And then there’s the bar exam for self-flagelating, ambitious types who are afraid of getting their hands dirty at real jobs producing viable product. They work with their mouths. Johnny Cochran comes to mind. There are others of course, too numerous to name.
The legal profession is not like the medical profession where you vow to do no harm. Here you generally know ahead of time that somebody is going to lose and get hurt. You ? that it is not you or your client. You see it’s an ancient, Byzantine guild which is entrenched and won’t go away. It’s purpose is to make as many people as miserable as possible. Sometimes you take their assets away, if they have. If that is not possible, they incarcerate you, where the pay is two dollars a day.
You see, laddies and lasses, it’s all about the ?. If your goal in life is Justice, fairness and equity, you will be sorely disappointed. There is no such thing as pro bono. It’s an urban myth.
If you want to get rich quick, this is not for you. If you subject to Hurt Feelings Syndrome, this is not for you. If your head is full of empathy and the current isms, movements and erstwhile social concerns du jour, this is not for you. Try the Peace Corps.
Finally, there are three types of people in the ?. There are people who make things happen. There are those who watch things happen. And there are those who wonder what happened?
If you do not fall into the first category, the Law is not for you. There is no examination which can reliably certify you to be a functioning, adequate lawyer. It’s an institutional urban myth par excellence.
Until such time as its relevance to anything on the ground or in the real courtrooms of Amerika, suffer, as generations before you have suffered.
For the record, I am neither a lawyer nor a lawyer wannabe. But I did stay at a Motel 6 before my court appearance this morning. These courts are exasperating and emotionally draining. They are designed that way by people who think they are “above the law.”
Well let me say this about that,… Irregardless of the fact patterns,… These charges are, false, ridiculous and untrue. I actually said that in court once. Everybody yawned. So you want to be lawyer? Prepare to suffer, loose sleep and and make your family and friends despise you.