Can practical training hamper your bar exam chances?

When bar exam results started going south a few years ago, lots of blame was thrown around.

Some argued that schools were admitting too many unqualified students in an effort to combat dropping enrollment. Some claimed that schools were not requiring as many rigid, bar-related courses. Some blamed the bar exam itself for not evolving to meet law school curriculum changes.

And then there was this argument: Schools were offering more practical training opportunities — such as clinics — where students were graded on a pass-fail basis and not getting the kind of assessment they needed. Plus, they may have been missing out on more rigorous academic work. 

That last one?

That riled up Robert Kuehn, who most definitely has a dog in this fight. He is the associate dean for clinical education at Washington University School of Law in St. Louis. His school certainly believes in the educational benefits of clinics. It has 11 of them.

The criticism aimed at clinics and other experiential learning had considerable heft. It came from Erica Moeser, then president of the National Conference of Bar Examiners (NCBE). In a 2014 article in The Bar Examiner, an NCBE publication, she wrote:  

“Without grades for feedback, students may not realize they are at risk. In addition, the rise of experiential learning may have crowded out time for students to take additional ‘black-letter’ courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year.”

(In defense of Moeser, who is now retired and could not be reached for comment, she did call the rise in experiential learning “a laudable objective.”)

Kuehn decided to dig into this issue. He and David Moss, an associate clinical professor at Wayne State University Law School in Detroit, wanted to see if there was a relationship between clinical work and poor bar passage rates.

Before we get to that, it’s important to know that there is some friction between academically minded professors and those who lobby for on-the-job training. 

Debra Schneider noted this in her 2008 paper titled, “Blending 

Doctrine, Practice, and Purpose in Legal Education: The Case for an Integrated Pedagogy.”

“‘Practice’ is sorely undervalued in traditional law school pedagogy,” she wrote. “Though practical courses are a mandatory component of most law school curricula, they characteristically constitute a narrow slice of the curricular pie, receive little administrative support, and are viewed with skepticism or outright disdain by doctrinal faculty.”

Kuehn maintains that this attitude has not changed much in recent years, despite the fact that practical training has received a lot of hype. He questions whether most schools are really on the bandwagon. The American Bar Association (ABA) requires only six credits of practical training — one-tenth of the 60 credits students earn in the last two years of law school.

But what got him most fired up was the allegation, without evidence being cited, that clinical work was related to poor bar exam performance. 

“Conjecture that enrollment in experiential courses might be harming students’ chances of passing the bar exam took place in the absence of any reported empirical study associating experiential coursework with bar failure,” he wrote in his recent paper: “A Study of the Relationship between Law School Coursework and Bar Exam Outcomes.” And his study settles it, he said. The relationship is “completely debunked.” 

Kuehn and Moss sought to set the record straight by looking at 10 years of bar exam performance by students at their two schools as well as the courses those students took. The study covered 2006 to 2015. 

The conclusion: “Neither the number of experiential courses nor the number of experiential credits taken by a student correlates with bar passage, positively or negatively.”

And this played out nationally as well. From 2006 to 2013, experiential course enrollment shot up 50% in U.S. law schools, yet bar exam results held steady. The decline in bar passage numbers actually began when experiential learning began to dip, the study found.

Why? Well, maybe it was because law schools started admitting students with less robust LSAT scores, the report said. 

And, the study shot down as well. One was that clinics attract lesser quality students who are drawn to the pass-fail option. 

“However,” the paper states, “the data suggest that students who graduated with lower LGPAs (law school grades) did not migrate disproportionately toward experiential courses and away from other courses.”

And there’s more. When bar passage numbers started slipping, some schools put more of an emphasis on requiring bar-focused courses, hoping to reverse the slide. But even that didn’t work, the study found. Only the most poorly performing students saw benefits, and they were marginal at best. 

“Efforts to improve bar exam passage rates by requiring bar courses would appear justified, if at all, only when targeted to students whose LGPAs place them at heightened risk of bar failure,” the report said. “Even then, schools should not expect mere exposure to additional bar courses to significantly improve the likelihood of bar passage and should look elsewhere for alternative ways to address bar passage problems.”

Kuehn said his findings are important for a number of reasons. If schools actually believe that there is a negative relationship between bar passage and experiential learning, they may not invest as much in such learning. And the same applies to students. If they think it will hurt their bar exam chances, they may shy away from them.

All of that is worrisome, Kuehn argues, because he believes that law students do not get enough practical training, particularly when compared to medical or nursing students, who get a lot. 

However, clinic experts still worry that law schools will not champion clinical work, despite the study’s findings. “Law schools believe, without evidence to support the belief, that the more classes students take on subjects tested on the bar, the better able students will be to perform on the bar exam,” said Kendall L. Kerew, the president of the Clinical Legal Education Association. 

She noted how the ABA now requires schools to have 75% of graduates from a class pass the bar within two years. They could lose accreditation if they don’t comply. That has put even greater emphasis on bar-related courses. 

Meanwhile, there are questions regarding just how well the bar exam measures competency, she noted. It’s been under fire from many in legal education. “The bar exam has long been criticized for its ineffectiveness in assessing whether applicants will be competent professional attorneys.”

Clinical work is a key component in preparing students, she argues. And that’s even more true today, given the pandemic and how clinics have had to adjust. 

“Participation in a clinic or externship is the best way for law students to learn to navigate the new world of remote legal work. By doing so, students will be better able to hit the ground running after passing the bar,” she said. 

Kuehn can think of no better experience for a law school student than a clinic.

The work is rewarding, fun and exciting, he said. The clients, many of whom wouldn’t be able to afford legal services otherwise, are extremely grateful. Students can change lives. 

“It’s the best kind of practical training,” he said.