The results of February’s bar exam aren’t out yet and July’s exam is still months away. But across Maryland, seven attorneys are hard at work coming up with questions to test the mettle of would-be lawyers in February 2013.
They are the members of the State Board of Law Examiners, and for them, the bar exam never ends.
Working nearly a year ahead, each member of the board writes one or two questions. Earlier this month, they circulated the draft questions for next February’s test for review.
“There is no formula for devising the questions,” said Jonathan A. Azrael, who has chaired the board since 1995. “Some of us draw on our own experience. Some of us read recent [Court of Appeals] decisions and that might spark a question.”
And while it’s commonplace to refer to a convoluted fact pattern in a real case as a “perfect bar exam question,” board members say the opposite is true.
In fact, the main purpose of the review is to “make sure there are no red herrings,” said John F. Mudd, an examiner for more than 20 years.
“We want to test on mainstream stuff,” said Mudd, of Mudd, Mudd & Fitzgerald PC in La Plata. “It’s not a matter of trying to trick anybody.”
Charles N. Insler, who took the most recent exam in February, said the board is hitting the mark; he found the questions “fair and straightforward.” He recalled the questions involved wrongful death, civil procedure, evidence, family law and professional responsibility and contained no extraneous facts.
“There was no minutiae,” said Insler, a contract attorney at Joseph, Greenwald & Laake in Greenbelt, who is already licensed in Missouri and Illinois. “I kind of saw the question and knew where I was going from there.”
The board members will meet in late May to go over the questions together, as well as finalize the question for the exam to be administered this July.
The day-long essay portion of the bar exam consists of 11 questions, with 10 designed by the board. (The final question is submitted by the National Conference of Bar Examiners, which also prepares the multiple-choice Multistate Bar Examination given on the second day of the Maryland Bar Exam.)
The essay schedule is designed to give examinees 25 minutes to answer each question.
That is sufficient to read through the fact pattern and question at least twice, organize their thoughts and write “an answer that is responsive to the call of the question,” Mudd said.
“It’s not a picnic, that’s for sure,” board member Gregory H. Getty said of the pace.
Due to the time constraints, organizational skills are important but penmanship, spelling and grammar are de-emphasized, said Getty, of Geppert, McMullen, Paye & Getty PC in Cumberland.
“We have to be aware of the pressure they are under when they take the exam,” he said. “It’s nice to write beautifully, but it’s hard to do that when you’re trying to finish in a timely fashion.”
Making the grade
The board member who drafts a question must also grade that part of the examination. Mudd said he can grade 10 to 15 papers per hour if they are typed, slightly fewer if they are handwritten.
“Typed books are just wonderful because you don’t have to fight the handwriting,” he said.
To ensure consistency, each member has two aides — both attorneys — who also read through the answers. The aides receive an annual stipend of $10,500.
The members themselves are each appointed by Maryland’s top court to a five-year term. As chairman, Azrael receives an annual stipend of $25,700, and the other board members receive $25,200.
Like the seven judges on the Court of Appeals, the seven board members each represent a different judicial appellate circuit.
Joining Azrael, Getty and Mudd on the current board are David E. Ralph of the Baltimore City Law Department; Linda D. Schwartz of Paley Rothman in Bethesda, who was recovering from surgery and unavailable for comment; Matthew T. Mills, with the Maryland-National Capital Park & Planning Commission in Upper Marlboro; and Maurene Epps Webb, zoning hearing examiner for Prince George’s County. Mills and Webb did not return telephone messages seeking comment.
While board members are appointed by the Court of Appeals, the high court has no say in the making or grading of the exam. Nor does the board consult with Bar Counsel, although questions involving an attorney’s ethical obligations are woven into each test.
“Our mission is to protect the public from lawyers who don’t demonstrate what we consider to be minimum competence or who lack the character and fitness to be trusted with other people’s money and other people’s affairs,” Azrael said.
Ralph said the goal is to test a candidate’s professional competence in all senses of the word.
“We see too many [lawyers] before bar counsel with things that they really shouldn’t have been there for, like mishandling client money,” he said. “We want to see people who are ethical and have some minimum level of competence.”
On the substantive issues, Ralph said, test-takers should not try to impress the board with how much they know.
“We’re not looking for a right or wrong answer…,” he said. “We’re looking for their analysis. We’re looking for people who can transition from being a student to being a lawyer.”
The board sets neither a pass nor fail rate for the bar exam, he said.
“There is no quota,” he said. “There is no minimum. There is no maximum. It just is what it is.”
The essay questions are graded from on a scale of 0 (worst) to 6 (best). The score on the 11th question, provided by the National Conference of Bar Examiners, is multiplied by 1.5, for a maximum possible score of 69 points for all 11 questions.
Examinees get at least one point on the essays just for signing their name, Azrael said.
But Mudd is not so generous.
“I give out zeroes when they’re horse manure,” Mudd said of answers rooted in neither the facts nor the law.
The essay score is added to the Multistate score, which is not graded by the Maryland board. If the scores add up to 406 or more, the candidate passes.
In the case of near misses — those within 10 points of 406 — the board gives the essays a second look, “only with an eye toward grading up,” Azrael said.
He added that about half of the essay exams they re-read get a passing grade.
This internal review, done without the test taker’s knowledge, is the only appeal the board permits, Azrael said; it will reject an unsuccessful applicant’s request to regrade the exam.
“We already re-read your test and we gave you more points,” Azrael said. “We think that’s a fairly good failsafe procedure to ensure that anyone with minimum competence is going to pass.”
Those who fail have one additional avenue of recourse: Retake the test.
Of the 1,527 people who took the July 2011 test, 77 percent passed. That’s up from 75 percent for the 1,441 people who took the test a year earlier.
The results from February, which are traditionally lower than the July figures, are expected to come out in early May. In February 2011, 536 people took the test and 65 percent passed.
Daniel M. Shemer, who has helped prepare students for the bar since 1981, said the questions have really not changed that much in the last 30 years, though the time to answer each question has become more consistent, at 25 minutes, and the subject matter has changed, with family law having been added in recent years.
“In fact, there are questions they have reused several times” though only after several years have passed and the names of people, places and things were changed, said Shemer, the founder of Shemer Bar Review LLC in Baltimore.
“It is still basically the same kind of question,” he added. “Something has happened and the client comes to you.”
Another constant, Shemer said, is the advice he gives to his students.
“It’s a fact test; it’s not a law test,” he said. “It’s much more about your ability to communicate that you can think like a lawyer.”