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Sunday, November 19, 2017 29° Partly sunny

Reflections on the Bar exams – Week Two

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By J. Art D. Brion (ret.)

Week One of the Bar exams indisputably went the candidates’ way. The questions that Bar Chairman J. Lucas Bersamin fielded in both the morning and the afternoon exams were very reasonable. To quote a professor with a long Bar exam history, both exams were “based solely on familiarity with and ordinary understanding of the codal provisions and the leading cases.”

Confidence further rose in the morning of the Week Two exam as the trend started in Week One held firm. Civil Law may not be a very difficult subject to understand but the scope of its coverage can be unnerving. The law covers the whole life of a man – from before his birth, his marriage, his life with his family and neighbors, to his death and funeral, and even long after, up to the distribution of the properties he left behind.

Yet, Bar candidates were seen smiling and self-assured as they exited the exam buildings after their Civil Law exam. The Bar chairman, once again, was true to the words he had uttered before the assembly of law deans in the morning of Week One – the exams would be at the entry, not at the expert, level and would be designed to test candidates at this level.

A break in the pattern – a reality check, in the words of a friend – intervened in the afternoon of Week Two in the Taxation exam, shaking up the candidates’ two-week-old confidence. Whether the Bar chairman failed to follow the standard he had set, or there was simply deficient legal education, can definitively be determined only after the exams. But the break in the candidates’ previous exuberance was palpable, neutralized, it seemed, by an acidic Bar potion.

Taxation is a difficult subject in the best of times and I am not really surprised that it served as this Bar exam’s first reality check. But I am sure, too, that the Taxation exam did not really rattle everyone. Taxation is not the only exam and a bad result does not need to be fatal to the bid for admission; Bar candidates all know that it only carries a 10% weight in the overall Bar exam grade.

Perhaps, it is more accurate to say that Taxation simply started the filtration process that separates the potential topnotchers from the rest of the pack, with the coming four exams serving as the finer filters. Commercial Law and Remedial Law – the fearsome endgame subjects of the Bar exams – will presumably serve this purpose and determine the Bar’s final “top 10.”

While it is still very early to pass judgement on the Bar exams, I am very happy with the developments, particularly with the entry-level approach the chairman made in the first three exams. This approach is fair and kind to the candidates, particularly to those who really studied and who at least know the basics. But this should not serve as the Court’s prized approach. The Bar exams cannot simply be informational and cannot rely on the capability to parrot what the laws and the Court’s rulings state.

Aside from English skills and the ability to communicate, the candidates must be tested on logic and on their capacity for original and analytical thinking. These are the qualities that they would rely on as lawyers when they provide legal advice and services to the public.

In law practice, a keen memory is definitely a prized attribute. But at that point, law books can be opened and consulted. The capability to use the information the law books contain – through original and analytical thinking – are the decisive elements that determine how well the client’s interests are served.

I cannot help but comment, too, on the matter of Bar reforms that the Chief Justice brought up during the Week One breakfast with the law deans. She was apparently as elated as the deans were, by the approach that Justice Bersamin took in the Political Law exam.

Bar reforms, however, cannot be considered independently of legal education. In the Bar exams, the Court is merely measuring the fitness of the candidates to be lawyers, based on the legal education they received from their law schools. In short, the Court only tests for the results of legal education.

The Court’s assessment is for a purpose – to ensure that the candidate can competently act as a lawyer ready to serve the public in need of legal advice. From this perspective, public interest is the goal that reforms must ultimately consider.

Thus, the levels at which the candidates would be tested and whether they shall be examined in four or eight subjects are sub-issues that do not need to overly preoccupy the Court. The answers should ultimately depend on whether these sub-issues would serve the Bar’s purpose of admitting lawyers sufficiently qualified to serve the public.

Rather than focus solely on the Bar exams in considering Bar admission, the Court should cast an equally keen eye on the law schools and, given its vast powers, should be able to prod these law schools into action that will serve the purpose of Bar admission.

The Court should be able to ask – are these law schools sufficiently and competently training lawyers for the Bar exams? Only thereafter should it ask – do these exams(adequately) test for the (examinees’) skills they would need to serve the public?

Real and meaningful reform cannot take place, too, unless, separately from the law students, law schools are periodically assessed in terms of their facilities, faculties, and demonstrated record, to determine if they can indeed train would-be lawyers for the intended public purpose they are meant to serve. The law school’s teaching faculty, in particular, is a very critical element whose qualifications should go beyond their previous Bar admission.

Most unfortunately in our current system, it is wholly the Bar candidate who suffers from the lack of necessary training that would equip him to pass the Bar exams. He alone fails, suffering ignominy and misdirection in life for his failure. The incompetent law schools continue to exist, year in and year out, charging fees and holding themselves out as institutions with the capability to train students for Bar admission.

To check on this statement, one needs only to inquire from the Legal Education Board: which are the law schools with the ignominious record of Bar failures for three to five consecutive years and where are they now? Sad to state, these law schools continue to operate and to recruit future “abogadillos” (the term people in my hometown use to refer to those who do not become “abogados”).

Readers can contact the writer at jadb.legalfront.mb@gmail.com.

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