In prior posts we discussed and advised on whether a practicing attorney should opt into the Multistate Bar Examination (MBE) or just stick with the one-day Attorney’s exam.  Up until October of this year, the one-day Attorney’s exam consisted of 5 essay questions and one Performance Examination.  Seasoned attorneys with more than five years of active practice from another jurisdiction were able to focus their concentration on the writing section of the California Bar Exam without the added distraction of preparing for the MBE.  In addition, attorneys enjoyed the “one and done” approach and could presumably return home after completing the one-day exam. 

Participating in day two for the MBE was never an appealing choice for attorneys. Just to be clear, the attorney’s exam is not a different exam.  All applicants take the same writing section of the exam, and only attorneys who meet certain criteria can skip out on the MBE.  Attorneys are not precluded from taking the MBE; they are simply not required to.   With pass rates in California hovering near depressing, the question becomes whether an attorney should in fact take the MBE in an attempt to maximize their chances of passing the exam.  Unlike the written section of the exam the MBE is completely objective.  There must be a correct answer.  You are either right or wrong.  The essays and Performance Exam on the other hand take more of a subjective turn leaving many to question what exactly are California examiners looking for in a passing response?    

Over the last twenty years or so our advice to attorneys was to sharpen writing skills and trust certain levels of sophistication as a means of distinction from the masses.  With focused practice on the writing section attorneys could readily master the technique and methodology necessary to achieve consist passing scores. The MBE, with minor exception, was not suggested as an appropriate course of action. 

But then came COVID-19.  Like with so many other things the worldwide pandemic required us to re-imagine daily life in an unimaginable fashion.  Every aspect of daily life was and continues to be altered by this year’s course of events.  And the California Bar Exam was no exception.  The July 2020 in person exam was canceled, and then began a scramble to figure out how to safely administer a bar exam to the largest group of applicants in the country.  With professional careers on the line, thousands weighed in on what the State Bar of California should do.  

After moving the exam to September and then again to October, the final decision was to administer California’s first ever remotely proctored on-line exam.  It was a slightly painful transition, but ultimately a necessary one.   Now that the October exam has come and gone, new applicants are starting to prepare for the February 2021 examination which also will be administered online. 

So, this is where we are re-evaluating whether in light of the new on-line exam, attorneys should consider taking the MBE.   This year, the bar examination was administered over two days.   Day one consisted of 5 essays, and day 2 consisted of a modified 100 question MBE exam and a 90-minute Performance exam.  Whether an attorney opted in for the MBE or not, they were required to stick around for two days.  

While the State Bar has not yet made clear whether the MBE will be a 100 or 200 question exam, they have advised that attorneys again will have to take the test over a two-day period.  Now comes the exam software.  Traditionally, applicants had the opportunity to either handwrite the exam or complete the exam using a laptop computer.   In either case, applicants were presented with hard copies of the exam questions, and were allowed to mark on the exam pages, use scratch paper, etc.  The remotely proctored exam did not allow for this accommodation.  Essay questions were presented online, and applicants had to scroll back and forth, without the use of scratch paper, and complete each question in a pre-programmed text box.  

The Performance Exam presented a new challenge in that the ability to copy and paste was not an option, and again scrolling through pages and pages of material made completing the exam in a timely fashion difficult at best.   There was no opportunity to carefully outline an answer, highlight a passage with a big fat marker, or any other of the usual crutches that make this exam palatable. In short, it was hard to write a coherent response, under the time pressure, using the newly designed software.  Those without an absolute mastery of technology received an additional layer of stress associated with this already pressured cooked exam. Add to that most seasoned attorneys are used to having support staff monitor technology, and for the first-time attorneys were finding themselves having to catch up on the technology rather than focusing on the substantive material tested on the exam. 

So, where does the MBE come into play? The MBE is easier to navigate online.  You click a button to choose your response.  It still requires however an additional layer of studying and practice.  The MBE is not an easy exam, and just having a mastery of the law is not enough.  Applicants need to be familiar with the tricks and traps of the MBE, and they need to complete thousands of practice questions before having a fighting chance of passing that section.  The one hamstring attorneys have is time.   Most cannot afford to take time off from work to study for this exam. 

Once we leave law school and head into life there is very little time for anything else.  Traditional bar exam preparation does not work for practicing lawyers.  They need a customized tailored approach that works around their individual schedule limitations.  Exactly what the experts at Executive Bar Review provide.  The new California on-line bar exam is just a shift in format.  It still requires strong writing skills.   With focused practice, and detailed feedback, attorneys will prevail on the writing section of the exam.  The software is nothing more than learning another subject.  We teach our applicants how to appropriately manage the technology and all substantive practice mirrors exam conditions.  The MBE could dilute an attorney’s chances at passing. Our opinion, after decades of successfully preparing California Bar applicants, is to fully master one section rather than to “kind of” master two. Laser sharp direction from a bar exam expert will allow attorneys to easily navigate the new California Bar exam landscape.  


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