Earlier this year, a federal court has ruled that the National Conference of Bar Examiners (NCBE) will cause a blind law school graduate irreparable harm unless it provides her the technology-based testing accommodations she needs to take two exams required to become a member of the State Bar of California. The court issued its ruling in an order granting the law school graduate’s motion for preliminary injunction on Thursday, February 4, 2010. The court’s ruling allows the Plaintiff, Stephanie Enyart to take the February 2010 Multistate Bar Examination (MBE) and March 2010 Multistate Professional Responsibility Examination (MPRE) on a laptop computer equipped with the assistive technology software Ms. Enyart relies upon for screen reading (JAWS) and screen magnification (ZoomText).
The Plaintiff is represented with the support of the National Federation of the Blind (“NFB”) by Labarre Law Offices, P.C., in Denver, CO, and by Brown, Goldstein & Levy, LLP, in Baltimore, MD. The Plaintiff is further represented by Disability Rights Advocates (“DRA”), a non-profit law center that specializes in civil rights cases on behalf of persons with disabilities, based in Berkeley, California.
Dr. Marc Maurer, President of the National Federation of the Blind, said: “The National Federation of the Blind is extremely pleased with the ruling in this case. Law and equity simply do not permit the NCBE to dictate a one-size-fits-all solution for all bar candidates with disabilities. We hope that this ruling will cause the NCBE to think long and hard before it denies the requested accommodations of applicants to take its examinations.
Anna Levine of Disability Rights Advocates, an attorney representing the plaintiffs said,
"I hope that our hard fought victory here will send a message to testing organizations that they need to comply with the ADA and provide each individual test taker with a disability the accommodations that he or she needs to demonstrate his or her actual knowledge, skill and abilities."
The Plaintiff, Stephanie Enyart, said, “A little over a year ago I sent my first request for accommodations on the March 2009 MPRE and tonight I can go to sleep knowing when and how I can effectively take the exams to fulfill my dreams.”
The suit was filed on November 3, 2009, due to the NCBE’s refusal, on multiple occasions during the past year, to allow Ms. Enyart to use the same technology on the MBE and MPRE that she has used on university and law school exams and in various jobs and internships. The suit charged that the NCBE violated the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act by denying accommodations on the MBE and the MPRE.
NCBE had argued that it fulfilled its legal obligations to Ms. Enyart by offering alternative accommodations, such as a human reader, notwithstanding evidence that these alternatives did not, in fact, accommodate Ms. Enyart’s disability. In rejecting NCBE’s argument, the court’s ruling paves the way for other individuals prevented from pursuing their professional dreams by high stakes testing providers who take a rigid approach to disability accommodations.
READ THE PRELIMINARY INJUNCTION ORDER
http://www.dralegal.org/downloads/cases/NCBE/Enyart_order.pdf
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Steve Liosi was recently interviewed by Michelle Fabio, of About.com, a Website suite operated by the New York Times
MICHELLE FABIO (F): How important is it that law school graduates take the first bar exam offered after graduation?
STEVE LIOSI (L): Fairly important, but not an absolute prerequisite to passing. Sometimes, life gets in the way of taking the bar exam right after graduation. And if that happens to a candidate, not all is lost. Taking the next bar exam would be soon enough.
In a perfect world, though, taking the bar exam administered right after graduation would be the best plan, as at least some of the pertinent law would be fresh in your mind. The more bars that pass after graduation, the greater the chances of your legal knowledge diminishing. It is best if the bar review process, at least when it comes to the black-letter law, is a mere review of the law and not a process where the candidate is actually learning the law.
Too many students think the bar review process is a 6-8 week cram session, and that would be an OK perception if the bar exam was simply testing a person’s ability to memorize. But, the bar exam is testing a candidate’s analytical skills, problem-solving skills, and that reality segues nicely into the next question.
FABIO: How long before the bar exam should they start bar exam prep—and when should they stop?
LIOSI: My knowledge of the bar exam is confined to the California bar exam and I will answer this question from that perspective.
California is considered the nation’s most difficult bar exam to pass, and it’s not because of the law. California’s bar exam covers 17 subjects, while some bar exams cover 24 subjects. And the states that have its candidates responsible for 24 subjects have higher pass rates than California. So, it is not the law covered, nor the amount of law covered that makes California’s bar exam the most difficult.
So, if it is not the law, what, then, makes California’s bar exam the nation’s most difficult? Easy answer: the written portion of the exam. Superior writing skills are required to pass California's bar exam. For example, in New York, a candidate has approximately 30 minutes to craft an essay response, which necessarily implies the emphasis is on issue spotting. In California, however, a candidate has an entire hour to respond to a fact pattern, which necessarily implies the emphasis is on both issue spotting and analysis. With that extra half hour, you'd better demonstrate the ability to analyze.
So, how long before the bar exam should a student start bar exam prep? My experience says anywhere from 3 to 6 months before the exam. In California, starting 8 weeks beforehand simply isn’t optimal for the majority of students.
For example, I began preparing for the California bar exam at the beginning of my last year of law school. I made sure that I not only memorized law, but I made sure that I fully understood the law. There is a significant difference between the two that gets lost on a lot in candidates. And, I made sure that I was skillful enough to pass the exam. In other words, I made sure that I knew how to recognize the legal significance of facts, and I made sure that I knew how to think and write in an analytical, problem-solving fashion.
FABIO: How do preparing for law school exams and preparing for the bar exam differ? How are they similar?
LIOSI: The main difference between the two is the amount of material one is responsible for. In an average semester, a law student is typically responsible for only 3-5 subjects, not 17.
And, from a writing perspective, the differences are great. For the most part, especially for 1Ls, law school is an issue-spotting contest, and not a contest of analysis. Of course there are differences among professors, but, for the most part, the best issue-spotters get the best grades in law school.
But California bar graders are looking for both: issue spotting and analysis.
With everything else being equal, analysis is at a premium when it comes to passing the California bar exam. And issue spotting is usually at a premium when it comes to passing a law school final. But, this is not to imply that your law school essays should be void of analysis. Superior law school responses, like superior bar exam responses, will be skillful at both issue-spotting and analysis.
Ultimately, law students need to cater to their professor’s idiosyncrasies. Some professors insist on rule statements in an essay response, some don’t. Some professors want you to begin with a roadmap lead-in paragraph, some don’t. Some professors want you to cite pertinent case names, some don’t. Some professors want you to argue from a public-policy perspective, some don’t. None of the aforementioned would be a necessary ingredient of a well-crafted bar exam essay.
FABIO: Even if they don’t do anything else to prepare for the bar exam, what is the single most important thing bar exam takers can do to be ready?
LIOSI: Understand – really understand – that the bar exam is a problem-solving speed exam and it is not simply an opportunity to demonstrate how much law you have memorized along the way. Once this realization is made, the candidate will place most of their efforts on becoming skillful enough to pass. Knowing the law in and of itself does not mean you know how to recognize the legal significance of facts, does not mean you know how to write in an analytical, problem-solving fashion. Understanding that your thought process is being tested is the single most important thing a bar exam taker can do to become ready, as it will ultimately impact – in a positive way – how they prepare for the exam.
FABIO: How do you feel the bar exam relates to success in legal practice, if at all?
LIOSI: This is simply my opinion, based on absolutely no empirical data. Of course, success is an “ambiguous” concept. If success is predicated solely on the accumulation of wealth, the bar exam has little to do with that kind of success. There are numerous attorneys who struggled with the bar exam, but end up very wealthy individuals. A friend of mine, who took the California bar exam four times before finally passing, is a multi-millionaire, all from the practice of law. So wealthy that he has been known to bet over $100,000 on a single horse race!
Ultimately, I think one’s propensity for building a successful legal practice, whether that success is measured by the accumulation of wealth or a positive societal impact, comes more from desire, people skills and a belief in one’s self, than it comes from any aspect of the bar exam.
FABIO: Finally, on a personal level, what inspired you to become a bar exam prep instructor?
LIOSI: I was born with the heart and soul of a teacher. In law school, I was always helping other students with the law school process. In fact, I helped some of them get the highest grades in their class and I helped some of them avoid academic dismissal. Plus, at the risk of sounding immodest, I knew that I was more talented than most of the people already involved in the business, especially when it came to helping people write better exams. But there were a few great ones in the business that I admired and who inspired me to make a career of helping law students and bar candidates: Bob Feinberg, the founder of PMBR; Bob Hull, a lecturer for a California-specific bar review; and, of course, Wentworth Miller, of LEEWS fame.
And in law school, I was inspired by one of my professors, Jeremy Miller, the founding Dean of Chapman Law School. He taught me, by example, that a no-nonsense, plain-English teaching style, designed to help rather than intimidate, always worked best.
Steve Liosi is the Program Director of Barperfect bar review, which was founded in 1994. For information about Barperfect’s offerings for law students and bar candidates, visit www.barperfect.com.
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