Wednesday, February 25, 2009


By : Mr. Cleophas G. Hoistwell, Esq., L.L.M., National Association of Bar Examiners

Our Nation depends on skilled lawyers. We live in a constitutional democracy in which reasonable laws maximize the public good. We eschew arbitrary rule by individual men for rational, collective, republican government. The law orders our society. It gives predictability to our commerce. It provides a voice to express the majority’s morals. And it protects all good citizens from the violence of dangerous deviants. In short, the law both drives and guides our American civilization.

Lawyers serve the law in America. Without good lawyers, Americans would not be able to secure justice through the law. In less orderly societies, aggrieved individuals resort to private vendettas, feuds and crude revenge to win justice. But in America, citizens trust the law to exact revenge on those who act wrongly. Rather than seeking private revenge on a merchant who breaks his promise, a private seller in America goes to a lawyer to seek legal revenge for his injury. At the same time, the accused merchant seeks his own lawyer to advocate his perspective. A neutral court weighs both sides and decrees a just result. That is the heart of American justice: Fairness, impartiality and reason under neutral laws. In this country, creditors do not bludgeon debtors to death when they fail to pay their bills. Instead, they invoke fair legal principles to compel adherence to just rules. In the process, we give everyone a chance to be heard. Lawyers allow us to hear everyone’s voice. That, in turn, allows our courts to render fair, just decisions to resolve disputes.

Our society depends on skilled lawyers for the same reason it depends on an orderly legal system. An orderly legal system provides effective redress for public and private injuries in society. People trust lawyers to secure that redress. Throughout our history, lawyers have done an admirable job. With dogged advocacy, imaginative argument and courage, lawyers have done their part for justice in America. By zealously advancing their clients’ causes under law, lawyers have forged a pathway to truth; and truth illuminates the pathway to justice. We salute our legal profession for its commitment to justice. In even the smallest cases, a lawyer’s work reinforces respect for a legal system in which the People put their trust.

We live in rapidly changing times. Thankfully, the law stands as a familiar bulwark against the forces of change: What was larceny in 1800 remains larceny today. Nonetheless, there is a widening gap between legal theory and professional practice. In decades past, lawyers attended law school to learn legal principles that served them well in their professional careers. State governments recognized that the public needs good lawyers. For that reason, they conditioned a license to practice law upon proven legal ability through a Bar Examination. Bar Examinations serve as a gateway mechanism that assures the public that only skilled lawyers will represent them. For generations, this gateway mechanism proved successful: Lawyers showed their skill by answering essays and reciting legal rules, just as their fathers and grandfathers did before them. Upon passage, successful examinees joined the profession; and the State felt satisfied that its lawyers “knew the law.”

We support the Bar Exam tradition. Our legal system depends upon the past. Legal rules derive their strength from past decisions. Lawyers must constantly look to the past for guidance in the present. Their analytical work is backward-looking: They see what happened yesterday, then attempt to match their arguments to analogous situations today. To do this effectively, lawyers must know how to read rules and memorize them. After all, without an ability to rapidly memorize old rules, a lawyer could not effectively match his case to an old one. The Bar Exam is an excellent way to measure a lawyer’s ability to memorize thousands of ornate legal rules. Although many of these rules have no application at all to modern legal practice, lawyers demonstrate their mental devotion by learning them anyway. Furthermore, lawyers must respect tradition and order. By learning immense amounts of inapplicable legal doctrine before test day, they show that they are willing to accede to any demand made by the State. Lawyers must obey the State that sustains the law. The Bar Exam enforces obedience at the same time it tests loyalty and mental discipline. In short, we will never abolish the Bar Exam, no matter how inapplicable it may be. We believe that the Bar Exam trains lawyers to follow instructions and submit to authority. To that extent, it is eminently applicable: It cultivates values that drive the legal profession.

New lawyers must pass the Bar Exam because old lawyers passed the Bar Exam. It would insult past generations if we allowed new generations to escape this highly significant rite of passage. It does not matter that the legal rules at issue in the Bar Exam do not apply in professional life. Lawyers are a brotherhood with distinct traditions, ceremonies and hierarchies. It would undermine our values to abolish a tradition that forges identity from adversity. No one asks the Army to abolish boot camp. So too should no one ask the legal profession to abolish the Bar Exam. The Bar Exam is the ultimate challenge. It is the ultimate ordeal. It demonstrates the applicant’s endurance, dedication and courage under stress. By dutifully learning inscrutable legal formulas that mean absolutely nothing in everyday life, lawyers show their mental toughness. They show their willingness to do anything for the profession. They build their characters by confronting seemingly insuperable difficulty. We insist that our traditions remain intact. Ceremony matters in both law and life. If we abolish the Bar Exam, which ceremony will be next to fall? The Presidential Inauguration? The fraternity hazing? The first communion?

By passing the Bar Exam, lawyers prove their worth. And because the Exam ultimately protects the public by creating obedient, disciplined lawyers, it would be foolish to eradicate it. It must persist.

We recognize that lawyers must accommodate changing times. Critics say that the Bar Exam should adapt to test more “pragmatic” aspects of legal practice. Currently, the Exam only asks timed essay and multiple choice questions on subjects from every legal field. Some States also require the applicant to compose a “practice-oriented” legal scribbling, such as an office memo or contract. Yet nothing in the Bar Exam directly targets the practice experience. We believe that the public deserves lawyers who more effectively understand how to serve clients. To that extent, we support including new sections in the Bar Exam that test an applicant’s ability to handle “real-life” practice situations.

In practice, lawyers must speak on the phone. They must ask questions. They must gather facts to flesh out their legal theories. They must listen to their bosses. They must review millions of documents to search for damaging admissions or inconsistencies. We support new Bar Exam sections that test an applicant’s ability to handle such practice pressures. The National Association of Bar Examiners has established a committee to determine which aspects of everyday practice best typify the lawyer’s everyday existence. After many months of hard work, we have drafted a new Bar Exam section entitled: “Preparation for Professional Life.” Beginning in 2010, applicants to the Bar of each State will be required to pass the new section. It will comprise 25% of the total test score; failure to pass it will result in overall test failure. Below, we discuss the substantive material at issue in the new section.

In Bar Exam tradition, applicants must answer questions without really thinking about the answers. They must be reflexive. Analysis does not matter as much as rote response. If an applicant can answer a criminal law question about “voluntary intoxication” by immediately choosing an answer that involves “a defense to specific intent crimes,” he will have proved his worth. After all, the Bar Exam tests dedication and memorization. And when an applicant has memorized the material, he knows answers without even looking at the questions. It takes time to reach such automatic facility with material. That is dedication. And that is the mark of a good lawyer. The public does not want original thought; it wants reflexive, responsive service.

In the first new section (“The Drinking Ordeal”), the Association continues the tradition of reflexive knowledge under merciless time pressure. To pass the first part of the “Preparation for Professional Life” Exam, applicants must drink five (5) U.S. gallons of beer or wine within 90 minutes under close supervision by other licensed attorneys. By this ordeal, we will test the applicant’s ability to drink copious amounts of alcohol quickly: A true hallmark of professional practice. Lawyers not only know how to analyze statutes and draft wills; they also know how to imbibe more—and more efficiently—than any layman. By requiring applicants to drain five (5) U.S. gallons of beer or wine within strict time constraints, we also test effective time management. Lawyers must drink; but they also must find time to do so. As many practicing lawyers know, this is no easy task. The new section tests a future lawyer’s ability to drink quickly and efficiently while balancing other responsibilities. By requiring supervision by other attorneys, we guarantee that no applicant can get away with drinking less than the prescribed five (5) U.S. gallons. If an applicant fails to drink the prescribed five (5) U.S. gallons within the allotted time, loses consciousness, undresses, dances on a test table, wets himself, vomits or dies, he fails. The Association recommends that the Drinking Ordeal be administered before all other Bar Exam sections, so that applicants will be forced to write essays and answer multiple-choice questions while completely intoxicated. This mirrors professional practice. Lastly, applicants must pay the State Bar Examination Board for the alcohol used in this section. This not only generates extra revenue for the State Bar Examination Board, but it also teaches a valuable practice lesson: In professional life, you have to buy your own beer.

In the second new section, the Association tests applicants’ humility and obedience. In professional life, new lawyers start low—very low. They do not start out trying cases or meeting with high-grade clients. Rather, they join a hierarchy; more specifically, they join at the lowest possible rung. They may know legal rules. They may be enthusiastic and bright. But that does not increase their political status as the weakest of the weak. Additionally, new lawyers must know their place within the hierarchy. To do that, the second new Bar Exam Section (“The Emasculation Ceremony”) requires applicants to submit to verbal abuse at the hands of senior partners. Applicants will have 120 minutes to complete an impossible task, such as finding a case that does not exist or a statute that has been repealed. When they have exhausted every source to find the nonexistent law, they must go before the managing partner, who will loudly call them “idiots, morons, losers, disgraces” and “incompetent assholes” who “don’t deserve a cent of my money.” The partner will also yell at the applicants and explain that their failure is costing the firm money, and that they have committed legal malpractice. The partner will scream various personalized insults at the applicant, such as: “You fat ass punk, I wanted this shit done yesterday. And fuck you, too.” He will also falsely tell the applicant that every other associate in the firm does their job correctly, but the applicant does not. If the applicant becomes defiant, talks back, makes excuses such as “I’m new at this,” argues or cries during his Emasculation Ceremony, he will fail the section. If he agrees with the partner’s assessment, apologizes profusely and says: “It was all my fault; I will do better next time,” he will pass. This section tests the applicant’s ability to calmly absorb criticism and blame from superiors, an essential skill in professional life. In the Association’s view, defiant lawyers have no place in the profession. Rather, competent lawyers know their place and willingly accept treatment commensurate with their low station.

In the final new Bar Exam section, applicants must demonstrate their ability to accomplish tedious, time-intensive tasks. In modern-day professional practice, law firms achieve financial success by billing as many hours as they can on particular matters. The Association decided that it would test applicants’ ability to practice that skill. To do this, the third new Bar Exam section (“The Sanity Test”) requires applicants to sit alone in a small room in front of a computer screen for 12 hours straight without rising from a very uncomfortable, hard-backed office chair. All the while, rotating supervisors will enter the room to ensure that the applicant does not get up. If an applicant gets up, speaks, turns around, falls asleep, cries out or urinates, he will fail the test. This section tests an applicant’s mental determination to methodically attend to the most mind-numbing tasks for long hours. In the Association’s view, modern legal practice involves many such time-consuming, apparently pointless tasks. Yet these tasks are very important to the firm, because they form the basis for robust billing. In the end, lawyers must understand that they are economic entities, no matter how many legal principles they memorize. The Sanity Test drives that message home.

In sum, the Association believes that these new sections will adequately prepare new lawyers for their careers in the legal profession. As lawyers, we respect tradition and we draw our strength from the past. At the same time, we recognize that we live in a changing legal climate that demands more from practitioners than ever before. By requiring new applicants to pass the new Bar Exam sections on Drinking, Emasculation and Sanity, we are confident that future lawyers will be better prepared for professional life. They will not only master timeless legal esoterica such as third-party beneficiary law and the Rule Against Perpetuities; rather, they will also effortlessly learn to balance alcohol with work, absorb punishing workplace abuse and resolutely attend to the most inconsequential, counterintuitive and meaningless tasks for hours on end. By mastering such technical skills, lawyers will better represent clients. And when lawyers better represent clients, justice prevails.

We are fully confident that the new Bar Exam will secure justice for all by producing perpetually drunk, abusive legal technicians who can stare at computer screens longer than any layman—for reasonable fees. And they will know how to recite the Holder in Due Course Rule, too. If that does not secure greater access to competent legal counsel in America, nothing will.

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