Changes of the California Bar Exam: If you think a three-day exam is tough, you haven’t seen anything yet.
November 30, 2015
The recent decision by the California State Bar Board of Trustees to shorten the California bar exam from three days to two, has been met with mixed emotions: while lawyers already admitted to practice law in California reflect on the traumatizing three days and think “Why now?”, law students or other individuals thinking about taking the bar in 2017 or thereafter, are relieved. For a number of decades, the California bar exam was the longest and considered the hardest in the United States. However, the legal education in other countries is even longer and more difficult. As an attorney admitted to practice law in both Germany and California, I will describe a tough and very different approach of becoming a lawyer.
BECOMING AN ATTORNEY IN GERMANY
Education
In Germany, no undergraduate degree is necessary. A person that wants to study law can go to law school right after graduating from High School. This requires an application to the law school of the student’s desire. Most law schools restrict admission by requiring a specific passing score of the GED; this varies from school to school. Even if a person did not meet the passing score requirements, he or she can still be accepted if the school has the capacity available. The average time to study law is nine semesters. Tuition per semester ranges between €42 and €500 (equivalent to $47 and $550).
Once enrolled, each student is required to pass a number of tests to qualify to take the First State Bar Examination. The average student in Germany attends six or seven semesters of law school to gather the required certificates. Thereafter, the average student begins studying for the bar exam: either privately or (as the majority) by enrolling in a bar review course. Bar review courses generally last for one year.
First State Bar Examination
Once a student has met the requirements, he or she will apply to the Regional Court to apply to take the First State Bar Examination. It commences with five to eight written tests, depending on the region the exam is taken, one test per day. Each test is comparable to an essay of the California Bar Exam however, each “essay” is scheduled for the duration of five hours due to the length and volume of the facts presented in the case.
A few years back, an examinee received a four-week assignment a few days after the essays. This assignment contained lengthy and highly complicated facts that required extensive research and the preparation of a thesis. For a number of years now, this four-week assignment has been given throughout the eight or nine semesters of law school.
After completing these tasks, an examinee has to wait about three to four months for the results of the written exam. And it does not end there: once an examinee is informed that he or she achieved a certain amount of points in the written exam, he or she will be allowed to take the last step of the First State Bar Examination: THE ORAL EXAM!
This oral exam usually takes place six to eight weeks after receipt of the score of the written examination. It is a full day inquisition between five examinees and three examiners (usually a committee of judges and/or professors at law school). The examinees are questioned about the law and/or the solution of legal problems for a full day. The examinee must achieve a rating of 40 points or more in the written and oral exams to pass. If he/she does not achieve 40 points, the examinee has to repeat the entire exam (written and oral).
Legal Clerkship/Traineeship
Once an examinee has successfully completed the First State Bar Examination, he or she will have to enroll for a two-year legal clerkship/traineeship, which is one of the prerequisites for the admission to the bar. During the legal clerkship, trainees will work together with judges (six months), prosecutors (three months), civil servants (three months) and attorneys (nine months). The last three months of the program can be performed anywhere the trainee desires (in a law firm, government entity, insurance company, a bank, etc. and even in a foreign country). The clerkship is designed to gain an insight into the professional life and is accompanied by further theoretical preparation classes. Ultimately, the trainee is an official of the federal state and will receive a so-called living allowance amounting to a net average of €800 (The exact amount varies by region).
Second State Bar Examination
Assuming the candidate has stuck it out for the first 21 months into the internship, he/she has to take the written portion of the Second State Bar Examination.
The Second State Bar Examination is similar to the first: it consists of a written and an oral portion as well. However, there are between seven and eleven written tests, depending on the region. Each test is comparable to a performance test in California but German law is applied (unlike in California where the case setting is in a fictitious state with fictitious law).
The oral exam takes place approximately four months after the candidate has completed the last three months of the internship and if the examinee was successful on the written tests. The oral exam is similar to the oral exam of the First State Bar Examination however, it starts with a “solo” so to speak. The examinee will be given a small problem (this can be in Civil Law, Criminal Law, Administrative Law or Labor Law) for whose analysis the examinee has one hour to complete. Immediately thereafter, the examinee has exactly 12 minutes to orally present an analysis with a conclusion of the problem. Once all three to five examinees have presented their oral analysis individually, they will be quizzed together as a group for the remainder of the day. If an examinee reaches 40 points or above, he or she will have passed the exam and finally be considered a full-fledged lawyer. This entire process takes an average of seven years!
THE REAL CHALLENGE
If all of the above wasn’t enough, there are two factors that make the German State Bar Examinations even more challenging.
The Two-Strike Rule
First, an examinee has only two shots for each exam! Yes, that means that an examinee’s career as a lawyer is over if he/she does not pass either exam by the second attempt. (Please note: Many universities are now awarding a “Magister Juris” to those candidates who were successful in taking the First but not the Second State Bar Examination. This allows the candidates to work in the legal field, for example in an insurance company).
There is only one exception to the two-strike rule for candidates who take the First State Bar Examination immediately after the eighth semester; they are granted an additional attempt. Therefore, if the candidate does not pass the first attempt, it does not count and the candidate still has the two (regularly granted) attempts available. This exception is not available for examinees of the Second State Bar Examination.
Score high to win
The second challenge is the importance of the score. On a scale of 0 to 180 points, 40 are required to pass. 180 points cannot be achieved – nobody knows why, but the unofficial explanation is that the law always gives room for interpretation and argumentation and therefore no solution can be perfect. Most firms and government entities require at least one exam of 90 points or higher for job applicants. Sad but true, a few years back, some examinees who knew that they would barely pass the exam, would skip the oral exam and collect a “no pass” just to do it all over again to have a chance to pass with a higher score. Today, most regions in Germany allow a successful examinee to re-take the exam to improve his or her score. Because of the importance of the score to find a job, a lot of examinees make use of this option.
ADVANTAGES AND DISADVANTAGES OF THE SYSTEM
Aside from lengthy and very stressful process of becoming an attorney, the only real disadvantage is that the average newly-admitted attorney is between 27 and 28 years old. As a result, the new associates all look a little bit older than they do in California.
On the positive side, every new lawyer is well-equipped to start anywhere he or she desires. Therefore, a lawyer can immediately apply for a position as a judge. Furthermore, since the score matters for the job market, everybody has a fair chance for a legal career, not just students who were fortunate enough to attend a reputable law school.
CONCLUSION
By describing a much more intense program with very long and challenging exams, the California bar exam cannot and should not be taken lightly. Having had to sit for the bar more than once, I can honestly say that the California Bar Exam is not a piece of cake. The change from three days to two days is not going to change its difficulty and the stress that comes along with it. In contrast, the Bar Examiners know how to test and challenge future attorneys. And rightfully so: they are responsible to evaluate the future lawyers of the State of California. Beginning in 2017, the California State Bar will have to do this on the basis of less written exams. Therefore, be prepared that the exam is going to be even tougher than it used to be. However, it can be done. Good luck everyone!
About the Author
Claudia Borsutzki was admitted to practice law in Germany in September of 2006. Thereafter, she started working as a German Attorney for Murchison & Cumming, LLP and became part of the firm’s International Law Practice team. She has represented the firm’s German client ever since. In 2013, she became admitted to practice law in California. She is part of the firm’s International Law Practice team and General Civil Litigation team.
References/further read
http://abovethelaw.com/2015/07/california-bar-exam-cut-from-three-days-to-two/
