Revisiting the Ontario bar exam

book study ontario bar exam

The current exam structure rewards groups of students who have a lesser understanding of the law than others who fail the exams, but are better at finding answers in materials quickly and efficiently. Moreover, it does not weed out those students who are not truly interested in practising law after law school. I think the Law Society of Ontario benchers would be well advised to initiate a pilot project to investigate the examination’s current suitability.

Currently, there are two exams: a barrister exam and solicitor exam — each one containing a number of topics, but the two exams can be scheduled on separate days. It is completely open book (albeit with entry security worthy of the U.S. Transport Security Administration) and completely multiple choice. Some topics are left out (intellectual property law), while others are tested very heavily (bankruptcy) and others very small (securities law) but for the most part, testing is on almost every legal topic in Ontario. Thousands of pages of examination materials are sent out to students prior to the examinations, and they are told that everything required to pass is in the materials. After thousands more papers are copied, organized, printed and highlighted by students, they enter the exam hoping their exam strategies work. Popular strategies include the creation (or the purchase from alumni) of an index, performing practice exams or simply using the table of contents (the latter of which I highly advise as an LSO tutor).

The issue with the current exams is that what it currently tests is not so much the content of the law, but rather how fast a student can read a question, find the answer to the question in the examination materials (the answers are most of the time word-for-word in the materials) and then answer the question — and to do that over and over again over a full day exam. As a result, the exams do not so much test the student’s competency in law but rather the ability for a student to develop a fast and efficient enough system to find the answers in the materials given. Those students who try to study the materials and (god forbid) attempt to answer the questions from memory without finding the answers in the materials are punished. Moreover, since all questions are worth one point, further rewarded are those who understand time efficiency — better to skip questions about corporate dividend taxation or child support where a student has to understand the material enough to calculate amounts. Instead, the better strategy is to simply spend more time on those where the answers are readily found in the materials and analysis is not required.

I’ve heard the argument that the way these exams are structured truly test how a lawyer is supposed to practice in real life: they are not expected to know everything but know how to look up answers and analyze new material. That may be true, but answers are never neatly packaged and organized in materials and answers are never as exact as is called for by multiple choice nor do they need to be provided in one to two minutes from the initial fact pattern. Testing the reality of practice is done during the articling or LPP term (as is in the case of doctor residencies or trade apprenticeships). The purpose of a written exam should be testing technical knowledge and competency in the law.

In other jurisdictions, the examinations are much like school exams. In the U.S. for example, the bar exams are not open book, and there are a balance of essays and multiple choice to demonstrate analysis and knowledge of a wide variety of legal topics including remembering statutes or case names. A student cannot get by on mere strategy but must demonstrate competency in all topics being tested. As a result, bar-passing rates in many states are low. However, those who persist come out with an extremely high knowledge base for the law, even if it is an area they may not practice. Those who do not, move on to another career with their legal knowledge (starting a business, becoming a teacher/professor, writing books) which is not necessarily a bad thing.

The point of the examinations should be to put greater pressure on would-be lawyers to truly know, understand, and apply the law rather than learning how to quickly and efficiently match multiple choice answers to provided materials based on a previously prepared index/colour coding system. Just as doctors are required to know material intimately without assistance, lawyers should require the same standard to obtain their license to practice law. Those graduates who were able to get through law school without appropriate study or interest (and there are plenty) should be weeded out through these examinations, not encouraged.

I would recommend revisiting the examinations and provide for the following changes:

  • Make it closed book: security is already quite high for the examinations, so the enforcement of this is already in place. Bar materials can be used as a study tool only and may not be needed if law school notes are effective study sources.

  • Insert essays: those students who are easily fooled by multiple choice will have a chance to show off competency with essay/written analysis. The reverse is also true — essays will expose those who do not have competency in analysis and writing.

  • Update topics: this is done with the current bar materials — recent additions have included aboriginal business law and immigration work visas. However, current legal trends should determine the reasonability of which topics to emphasize on the examinations (such asintellectual property).

As far as I am aware, the last time the law society visited a review of the examinations was in the law society dialogue on licensing which mainly focuses on different options for revising the articling requirement. In this dialogue, there was a footnote pertaining to not revisiting the examinations and there was a link referring to a blog article written by two U.S. professors. While the law society certainly has other priorities, it is worthwhile to revisit the entry level into the profession to ensure the next generation is up to the task.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.


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