Editorial Advisory Board//November 15, 2022
//November 15, 2022
Beginning next fall, every student entering Maryland law schools is likely to take a Next Generation Bar Examination following graduation. In fact, there are some students already in law school whose future licensure may be determined by their performance on the NextGen exam.
Deans and faculty at both law schools have already begun to reexamine curricular offerings and consider changes to prepare their students for the coming exam. Hiring partners may want to adjust their expectations for prospective candidates, focusing more on legal skills than doctrinal knowledge. And law firms may want to rethink their orientation programs for newly admitted lawyers, perhaps exposing them sooner to more challenging tasks. Here’s why:
According to the National Conference of Bar Examiners, which creates the Uniform Bar Exam now in use, the NextGen exam will be designed to test less broadly and deeply within subjects covered, thus requiring less memorization of legal doctrine. At the same time, there will be a much greater emphasis on lawyering skills.
NCBE promises to retain the values of fairness, accessibility, affordability, and score portability of the UBE, but the content will focus on eight foundational subjects and seven foundational skills.
Specifically, the subjects examined will be limited to civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law, and real property. Family law, secured transactions, and trusts and estates will no longer be tested.
Many topics within the subjects that remain will also be eliminated. For example, knowledge of the elements of common-law crimes will not be tested; rather, examinees will interpret statutory definitions of crimes. Torts questions will no longer cover contributory negligence, defamation, or invasion of privacy. And the rule against perpetuities will finally be gone.
Skills coverage will include legal research and writing, issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationships and management.
Overall, the NCBE will determine the breadth of coverage by frequency – subjects that come up often in entry-level practice; universality – issues common to multiple practice areas; and risk – topics that could create a risk of malpractice or poor client outcomes if the practitioner is ignorant of them.
NCBE has offered some hypothetical questions to illustrate how the testing might work.
Examinees might be given an initial scenario raising issues of criminal law and evidence, including a police report, a statute governing assault and battery, and a short excerpt from a case interpreting the statute.
They might then be asked what fact in the police report will be most helpful in proving the element of “knowingly,” whether the police officer will be permitted to testify in his own words about the victim’s description of the incident, or what three avenues should be pursued to gather other evidence relevant to the issue of “great bodily harm.”
The scenario might continue with new materials, such as the transcript of a law clerk’s interview with a witness, and facts, including the resolution of several outstanding issues. Examinees might be asked to review the transcript and identify two mistakes the law clerk made, or to raise concerns about a prospective plea deal offered by defense counsel.
Other examples are available on the NCBE web site, but nothing has been carved in stone. Extensive pilot testing of questions will follow with a view toward determining the impact of providing legal resources during the exam and the amount of time examinees will need to answer new question types.
Grading rubrics will also be developed with the help of subject matter experts. Later, NCBE will try to determine the best interface for new question types and the optimal combination of question types for specific subject areas and skills. Examiners from the various jurisdictions will participate in testing grading rubrics and standard-setting exercises.
The Maryland Board of Law Examiners is closely watching the development of the new bar exam. While questions remain as to whether Maryland should adopt the exam in the first wave, expected in 2026, or wait a year or two, adoption at some point seems inevitable.
The NCBE is developing the NextGen exam as the “new” Uniform Bar Exam – the old exam will ultimately go away. And there is no serious consideration being given now to alternative paths to licensure, such as diploma privilege or apprenticeships.
We believe the adoption of the Multistate Performance Test as the practice-oriented component of the current UBE was a good start in the right direction. The NextGen exam promises to be an MPT on steroids, and we urge the Maryland legal community to take an interest in, and, where possible, participate in, its development.
We believe such involvement will enhance the potential of the NextGen exam to help law schools better prepare new lawyers for practice. And we believe the public will ultimately benefit from that preparation.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Andre M. Davis
Arthur F. Fergenson
Julie C. Janofsky
Ericka N. King
Susan F. Martielli
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.