Will We Never Learn Our Lesson About The Bar Exam?

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. Hey, Joe Patrice from Above the Law. I'm Catherine Rubino, weirdly also of Above the Law. I don't know how weird it is, but thanks for sharing. We are here to discuss, as we always do, the big stories in the legal industry from the week that was. And we begin by having a little bit of small talk as people. You know, you got to do that now because these podcasts that are AI generated are starting to sound so good. I don't know if you saw, but Sam Altman is saying that that's what you should do with your children's.

0:47You should put your children's Google calendars into it because children have Google calendars so that you can have a podcast that explains their soccer game or their upcoming birthday party while you're riding in the car with them. That is exactly what a robot would suggest. You could also talk to your children, but. Yeah, correct, correct. That is more dystopian than I think he thought it was gonna come out. It does not seem time saving. It seems like you are disengaged and maybe have a touch of the tism. Yeah. You know, it really is. With every passing day, it seems the Silicon Valley, the TV show, was less a comedy than a documentary.

1:30I did not watch it, although you do quote it a fair amount. So there's a certain amount that I've become familiar with. I actually haven't watched. I never really watched it in first run. So I haven't seen it all the way through. But I've seen several clips over the years. That have stuck with you and you've decided to interpret it. One of their funders in the show has a child, but he also has a AI home assistant that he calls upon whenever he has to discipline the child. It's like the kid's like, I want this. And he'll like hit a button and the robot will be like, no, Timmy, blah, blah, blah.

2:01And he's like, it's out of my hands. I will say that I also spent the better part of the weekend thinking about child care. I don't know what your FYP looks like, but I've been getting served a lot of information and clips of kindergarten teachers complaining about some schools have already started in other parts of the country about how ill-prepared. This is like, you know, your COVID generation of kindergartners, how ill-prepared kindergartners are, how they can't, you know, cut with scissors, how they can't take off their own backpacks, how they don't know how to put on their own shoes. And I am taking this and really spiraling because I have a little kid.

2:42My kid can't do these things. My kid can't cut. My kid can't put on their own shoes. My kid can't, you know, turn off the water correctly, all this kind of stuff. And I'm kind of spiraling. And then I needed to take a pause and say, oh, but my kid's three, not five. My kid is two years to come up with these skills. But, you know, that's what anxiety will do for you. So all of a sudden I spent hours on all these sort of teacher tech talks being like, this is how to prepare your kid, your kid for kindergarten. And I'm like, that's what I have to do over the next two years. Now I have a list in my head of all the things that need to be accomplished over the next two years, not two weeks.

3:17I mean, if you think your kid not being ahead of the curve is fine, you know, if that's fine. So you're trying to amp up my anxiety. Yeah. Always? Is that what you just said? I mean, I feel. You can write the hell off. I don't know. I just feel like as a co-worker, it's always best when people are on edge. So I don't think I don't think that. But I am describing, you know, I worked at Big Law. When people live in a constant state of terror, they put out their best work. In fairness, this would tear about my personal life, not my job. But sure, sure, sure. I'm sure that generalized anxiety disorder does not discriminate.

4:01That's why it's generalized. As we discussed last week, sometimes your personal life is your work life. That's true. Anyway, yeah, so. Yeah, still feeling the anxiety of my kid not knowing how to cut. And every time I try to correct them, I'm cutting a scissor because you've got to have your thumb up. And she's also a lefty, too, and I am not a lefty. So trying to teach a kid whose dominant hand is the opposite of the one that you have, I feel like, has another kind of layer. And I was asking a friend of mine whose kid is also a lefty. I was like, what did you do differently? She's like, oh, nothing.

4:30I have kids who are righties, lefties, and kind of taught them all the same. And then she paused and went, of course, my left-handed kids still can't really cut with a scissor, and they're eight. And I was like, okay, so I really should focus on that one. So don't do that. She's like, she's not really good at cutting with a scissor. And I was like, oh, okay. So a precautionary example. But my kid screams every time he tried to tell her to, like, hold the scissor the right way and thumbs up. And I have a friend who's a preschool teacher who's like, glue googly eyes on the thumb hole so that she knows that her thumb goes.

4:59Oh, yeah. And make your eyes match the eyes. Look at the eyes with your eyes kind of thing. And, you know, kind of working on that. But maybe. Maybe. Yeah, that sounds like a great idea, actually. Yeah, well, that is somebody who's a professional in the industry. Yeah, that's why people are professionals. Yeah. All right. Well, let's end our small talk there. The smallest of talk about the littlest of people. Yeah, it was very small. And we will move on to slightly bigger people, but not quite full grownups. We'll talk about the bar exam. Ooh, okay. So last week was the bar exam. If you are one of the people who took the bar exam, congratulations on getting through it.

5:41And we're very, very sorry that we continue to fail you as a profession. Yes, says Joe Patrice, the patron saint of deployment privilege. Like, yeah. Fair enough. I don't think that's a bad descriptor of you, your position in the legal commentary sphere, right? Like you are a big proponent of the diploma privilege. I am. I think that if you go to law school and you graduate law school, you should be able to practice with, you know, with the character and fitnessy kind of stuff. Like all of that is still valuable. But doctrinally, you should not have to finish law school and then take another doctrinal test to find out if you understand all the subject matters that you just spent three years of iterative testing.

6:25And I will say, I think you're aggressive, I think, about it, but I will say the notion that a closed book cram everything you've learned across three years into a two-day test is the right way when you should not be practicing law without references, right? That's malpractice, arguably, to just to never research and to go back to the books and to look at the case law, right? Like that's the actual skill. Right. So that has been a critique for a while. I also, just as an aside, just to close the loop, another reason I'm very big in diploma privilege is I think that for too long there's a tier of law schools that rip people off, that collect their tuition money and send people out who are not capable of passing the bar exam and practicing.

7:11And I think a world of diploma privilege would come along with a world in which we would have tighter standards on law schools such that people actually got what they needed. And I think that would be better for everyone and leave a lot fewer people with huge debt and nowhere to work. So that's a whole other thing. But let's go back to your point about closed book. So for a long time, that's been a concern that it doesn't teach what we would consider good legal practice because you wouldn't want to have answers off the top of your head. You would want to do research. And so the NCBE has tried the people who write the bar exam for most states at this point.

7:52We'll talk a little bit about that in a second. they have created a new version of the exam that includes some packets of material that people have to reference in an attempt to get at the idea of you do research. How did the NextGen exam, this new exam, make sure to go? Not great, Bob. Not great, Bob. Really? Yeah. So NextGen bar exam was rolled out in a number of jurisdictions. and unlike some of the other bar exams, it requires constant Wi-Fi for all of the test takers. And that proved to be a real problem in a number of jurisdictions, but most epically, I think is the right word, in Washington State.

8:33Washington State's bar exam took place in Yakima. Did it take place in Yakima? It did not. It was intended to take place in Yakima, which if my understanding of Washington geography is correct, which it probably isn't, is roughly in the center of the three main law schools that are in the state of Washington, but not necessarily the bustling metropolis that some of the other cities you've probably heard of in Washington are and was wildly unprepared for approximately 700 people trying to log on to the conference center's Wi-Fi. And so the test failed. They were Sent home the first day unable to complete a single question, which a tiny little asterisk here.

9:17Folks who had special accommodations were in smaller rooms and locations and they were able to take the exam. But the majority of the test takers were not able to log on. Sent home day one and be like, come back tomorrow, which is the Wednesday, and we'll make the test, we think, Wednesday and Thursday. And then Tuesday night, as they got home to their hotel rooms that they've sold out everything in Yakima, trying to extend their trips and everything, got an email from the WSB, Washington State Bar Association, saying, actually, we have no confidence that they'll be able to support the Wi-Fi needs on Wednesday or Thursday.

9:54Therefore, we are canceling the entirety of the bar exam. They are currently reportedly trying to schedule a makeup bar exam in September. What questions will be on it? I don't know. I don't know. I don't know what they're planning to do there. And or the people could either, you know, take it in September. They're still working on a date. They could transfer their materials to take the February bar or they can withdraw entirely and get a refund. Which, by the way, that's the refund that the Washington State Bar is responsible for. But the licensing fees and stuff that they paid to NCBE have to be handled separately.

10:31And of course, this does not cover the travel expenses because, again, the majority of the applicants do not actually live in Yakima. And hotels and kind of all that stuff is still money that the applicants are out and will have to be out again when they have to retake the bar exam. Although I will note that both the makeup in September as well as the February date are not going to be in Yakima. Those are in Tacoma, which is a place you've probably heard of if you're not from the Pacific Northwest. Yeah. Where, assumedly, the Wi-Fi is significantly better. Yeah. Yeah. It would be. This is horrible.

11:03And this is how what happens when we have stupid tests get you in stupid prizes. It was. And I'll say like the tipsters from Washington state, you know, report that the I.T. folks there were. What do you mean there's 700 people are going to be on Wi-Fi that they they conference center was not at all. The I.T. there was not at all prepared for the scope of what was about to land on them. And that seems like, you know, knowledge that you had ahead of time. You certainly knew the number of people who were planning to take the exam. You certainly knew the technical requirements in order to successfully take the exam.

11:38And it does not feel like the right hand told the left hand what was going on in any meaningful way. And while Washington is pinning a lot of the blame on the location and the Wi-Fi, that doesn't get you out of the problems that were taking place in Missouri in particular and also a little bit in Maryland. It was just poorly done. And what my article about what you wrote about Washington and I wrote about Missouri. And our colleague took Maryland. We really divided and conquered on night one of the bar exam. But what happened in Missouri was that. Cold, cold day. Yeah, yeah, yeah. No, what happened.

12:12But my article about what happened there really focused on the earlier issue with California. California tried because the NCBE was bleeding them dry. They were running in the red with the costs of trying to run the test according to the NCBE's imposed standards. So they took it upon themselves to write a new exam. They then they waited too long, rushed the exam into service without thinking through all of the issues. And it was a disaster. And, you know, for months and months afterward, all we heard was snide remarks from not not from the official organization, but from from supporters of the NCBE about how, oh, you know, that California screwed this up because they didn't let the professionals blah, blah, blah.

13:02the entire time I kept pointing out NCBE is actually pretty terrible at this. They just have a monopoly that allows them to say, to shrug when stuff goes wrong and say, well, I guess that's how it is. And here we have it again. They who have all the resources in the universe to be on top of this can't get it right. And it's because it's a more fundamental problem that exam itself is stupid and shouldn't be done. And we need to, as a profession, figure out a better way of doing that. And unfortunately, a few years ago, I thought there was some opening for that. COVID was creating situations where we needed to start thinking outside the box.

13:44Now, not only is that pressure gone, but horrifyingly, what you see going on in the South, in particular, these Republican-led states that are saying, we don't want the ABA to be accrediting our law schools anymore. You're pushing away from the idea of a national high bar for what a law school education is, opening the door to more diploma mill kind of operations, which is the opposite of what you need if you want to move forward. Yeah. And I think that in a world where the ABA accreditation means very little or is not prevalent in any given state, I think that your overall argument for diploma privilege falls apart.

14:24I don't think that's a criticism of your argument. I think it's criticism of what's going on in the world. Yeah. And I have a context, obviously, in a lot of these industries. And I think that the bar exam prep people hearing what happens and comparing it to California, there's a real sense of irony. And California wasn't so stupid now, were they? kind of going on there, which I think is, I think you're right. I think that is, that is really interesting. And I also want to kind of talk a little bit, you, your last answer, you kind of foregrounded the hubris, if you will, of the NCBE. And I really wanted to talk also about the - About the Odyssey still?

15:03No. You busted out the word hubris. I think we're now - I did, I did, I did, sure. No, but, you know, in the Washington State Bar Association's communications with the test takers have been very, we're so sorry, you know, this is a terrible thing that happened, blah, blah, blah. Whereas the NCBE statement is, you know, this was a historic test that pretty much went great, if you discount the places where it didn't. But you know, their comments about the this year's bar exam, and again, you know, I guess there are in more states than Washington state is, but, you know, it's very much like this was a historic event.

15:37Good job, us. Yeah, you could really, you know, sometimes there's a genre of social media account that whenever some big event happens shows CNN's coverage, MSNBC's or MSN Now and Bloomberg, all of the major networks coverage. And then Fox will have some like, are double cheeseburgers healthy? Like they'll be running something completely else, is completely unrelated so that they don't have to talk about the bad thing that just happened. And that was kind of hit the legal industry when it came to this test, because we had our bar exam disaster headline and Bloomberg had its headline about that.

16:13And Reuters had its headline about that. And Law.com was like smooth rollout. Yeah, really just kind of quoting the NCBE. It was. Yeah, I sent it around with the with the meme of the anchor from North Korean state news, because that's what it really felt like. Yeah. And to close the loop on diploma privilege, I will say that the the deans of the law schools in Washington state have called on the Washington state Supreme Court to issue diploma privilege for this year's test graduates and law school graduates in order to ameliorate the sort of the harm that's happened to these folks. They have to spend more money, as we kind of talked about already, more time, more money, more reservations, et cetera, in order to pass the bar exam through no fault of their own.

16:59And Washington State Supreme Court has issued diploma privilege in the past. As you were saying earlier, in the COVID era, they did diploma privilege and then rescinded it once the sort of pandemic was over. But, you know, the whole concern always about diploma privilege is that, you know, you're getting these people who may not be good lawyers and there has been no sort of increase in incompetence as a result of the COVID diploma privilege. And they could probably pretty easily do it for the test takers of the 2026 July bar exam. But we'll see if they actually do anything about it. Yeah, you raise that and then a completely unrelated story we weren't going to talk about, but whatever, while we're here in Louisiana this this last week, The state Supreme Court's justices, associate justices, all voted together to forcibly recuse the chief justice from a case because the chief was refusing to step aside on a case where he was launching personal attacks at the lawyer involved in the case up to and including sending them threatening letters by threatening legally letters like demand letters like you will do this or else.

18:08uh give you drop this case and apologize or else uh which the reason i bring this up of course is that the entirety of this dispute apparently arose from them having different takes in 2020 on whether or not the louisiana bar should give diploma privilege in the middle of the pandemic uh but that was the source of the animosity between them uh so that's so it it it rankles some people. Anyway, all right, well, let's take a break and we will be back in a moment.

18:45That's my impression of the hold music your callers hear right before they hang up. Smith AI pairs AI with real live agents to answer calls, qualify leads, book consultations, and even send retainers 24-7. Better intake, fewer missed opportunities. No more hold music Solos. Try it free at smith.ai. Mention Above the Law or use code NOHOLD at signup to claim 20 % off your first two months of service. Every legal professional wants to put their clients first, but billing, payments, and case management get in the way. 8AM is the professional business platform that helps law firms get paid faster, manage cases more easily, and grow with confidence.

19:29Trusted by over 260 ,000 legal professionals, 8AM integrated solutions like 8AM Law Pay and 8AM My Case help simplify the business of running your firm so you can actually put your clients first, first. Visit 8AM.com slash LegalTalk to learn more. All right, it's bonus time. More fanfare. Milbank, the law firm that has brought you the big law raises, which have not been adopted across the board. I imagine they will be at the end of the year at a minimum and may or may not be backward looking to the July 1st date, which is when the Milbank raises went into effect. But Milbank has also issued summer bonuses like they did last year, up to$25 ,000, the same scale as last year.

20:16They're nothing crazy in that respect. But the fact that they are doubling down on being firm leaders or industry leaders in terms of compensation is really what is noteworthy. They've done that for a while, right? The fact that big law gets paid what they get paid right now is entirely thanks to Milbank and their decision to really take a stand and to be the leaders here. Whether or not they will always be is, you know, Kravath has not announced a new scale. Now, in the past, what Kravath has done is matched for junior associates and come over the top for more senior folks. That's always a possibility, again, as we're waiting for Kravath to do anything about it.

20:55But the fact that they're also giving out these special bonuses is noteworthy. What we saw last year for a number of big law firms who didn't want to be overall behind but were not interested in necessarily giving money in the middle of the year to their hardworking associates was at end-of-year bonus time, they announced special bonuses as well as year-end bonuses. Which those specials then tracked the summer ones that Milbank and those following Milbank had given. Correct. Correct. I think a couple things. I think that, first of all, it puts a real exclamation point on the rest of big law's inability or unwillingness, at the very least, to not follow quickly to Milbank.

21:34And I don't think that they won't by the end of the year, but it really speaks to their lack of respect for associates in the moment because the chances that somebody leaves mid-year as a result of this is small because they're going to probably wait until they get their year-end bonuses at this point in the year. That's probably true. So the money is not going to necessarily cost them any talent directly, at least not immediately. But they're just saying, we'd rather have the money in the short term. The sort of value of money means more to us than it could possibly mean for you, an individual who has student loans and who knows what other personal responsibilities you have.

22:07And I think that it's really condescending and problematic, I think, long term for those firms. We've seen this a bit the last few years where Milbank moves and not everybody immediately jumps. It is a curious – I don't quite get the strategy whether or not – I think your point that they're not concerned about people leaving mid-year might be part of it. I don't know as though that's a fair assumption, especially if you are an associate with a talent that is hot right now. People will match bonuses and stuff like that if you move mid-year. So there's not really a reason to hold out. It just is every day that it happens just solidifies the this is Milbank's world and you're just living in it, which for years was what Cravath wanted to – that mantle.

22:57It's not a great look to constantly let Milbank push you around like this. I don't know what the strategy is. I don't think it works out because it's one thing if at the end of the year you say Milbank was wrong and we're breaking with it. But you know you're not going to do that. You know you can't afford to do that. I also wonder if the 2026 of it all is impacting the – because this is slower even than the slowest years on matching. I think it is kind of unique in that way. If there's not sort of this latent fear in the industry that there's going to be a real bubble pop in terms of AI or in terms of the market in general, we're maybe at war at any given moment, that it might affect the financials of the firm in ways that they're not willing to bet on quite yet.

23:43Yeah. I mean, obviously, we read last week about trouble with AI stocks being a large part of how that poor guy's wedding fell apart when his fund lost all its money. Yeah, you did tell me about that. It's not something I would necessarily follow in and of myself, but you can tell the story. Yeah, well, you know, we had a large fund that was heavily invested in the new frontier of tech. And as his wedding was about to start, the portfolio started crashing largely. Now, granted that wedding and by about to start, I don't know if it was the wedding proper or the pre-wedding festivities because the pre-wedding festivities were a series of panels and breakout sessions to discuss this because Silicon Valley, I want to remind you, was a documentary, not a television comedy.

24:33Yeah, I, you know, I felt really bad. Could you even imagine how terrible it would be in my head? I'm thinking like, you know, your wedding day, you're really trying to put aside your kind of like work and put it in a box and really focus on this moment for yourself and for your life and for your future partner and all this kind of stuff. And then I heard that, oh, and by that, I mean, he had these, you know, AI VC breakout sessions that were part of his wedding. And I was like, well, maybe, maybe, maybe this is, this is, you know, just desserts. Oh, well, anyway. Let's take a break and we'll be back in a moment to close this thing out.

25:09Every legal professional wants to put their clients first, but billing, payments, and case management get in the way. 8AM is the professional business platform that helps law firms get paid faster, manage cases more easily, and grow with confidence. Trusted by over 260 ,000 legal professionals, 8AM integrated solutions like 8AM LawPay and 8AM MyCase help simplify the business of running your firm so you can actually put your clients first, first. Visit 8am.com slash LegalTalk to learn more.

25:48That's my impression of the hold music your callers hear right before they hang up. Smith AI pairs AI with real live agents to answer calls, qualify leads, book consultations, and even send retainers 24-7. Better intake, fewer missed opportunities. No more hold music solos. Try it free at smith.ai. Mention Above the Law or use code NOHOLD at sign up to claim 20 % off your first two months of service. All right, real quick, we've already talked a lot about making out on park benches and the reasons why you don't necessarily do that if you're a partner with an associate. But there was more follow-up to that since our last recording.

26:34What we learned since that last recording is I think in our last show I made mention that there were a couple of Wachtell stories going on at once. There was this and they had lost, you know, six high profile partners to Gibson Dunn, which Wachtell never loses partners and like, you know. Yeah, this is the second time I think of this year that they've had a pretty substantial group go to competitors, which is unusual. Paying somebody$100 million will get you there. But the additional factoid there, of course, was that it seems that the partner involved on the park bench was one of the intended people to move.