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What's the big deal about the bar exams?The bar exams – whose results are much-awaited and covered by the media – are, at best, simply a measure of a particular year’s test takers, nothing more
By Atty Theodore Te
www.rappler.com
Published 9:32 PM, November 21, 2018
Updated 9:32 PM, November 21, 2018
This Sunday, November 25, the 2018 bar examinations will conclude, officially signaling the start of the waiting period for the 8 bar examiners to check and grade all the notebooks – a process that will, on the average, take the next 4 to 5 months to complete.
The bar examinations are notoriously difficult and the preparations for taking them – 5 months of review with life being placed in suspended animation – highly stressful. Yet, the number of bar exam hopefuls has increased every year (except in 2016). This year’s 8,701 admitted candidates is the highest since 2013:
2017 – 7,227 candidates were admitted
2016 – 6,831
2015 – 7,146
2014 – 6,344
2013 – 5,593
These numbers show that, despite the low national passing average every year (with the sole exception of 2016 (59.06%), taking the bar exams is still a big deal.
This week’s “Deep Dive” is into the annual bar examinations and why they are not (or shouldn’t be) a big deal.
Open-ended questions, handwritten answers
The bar examinations are the only professional licensure exam not administered by the Professional Regulation Commission (PRC). It is administered by the Supreme Court under Rule 138 of the Rules of Court.
It is the only examination that still uses open-ended questions, not standardized or multiple-choice questions (although this was done in 2011 and partly in 2012), and is still the only examination that requires the examinees to answer by writing in long hand.
It consists of 8 subjects and is given in 4 Sundays in November. Examinees are required to have a general average of 75% in all 8 subjects, without falling below 50% in any subject (although this has recently been waived). Each subject is given a specific relative weight, thus:
2016 – 6,831
2015 – 7,146
2014 – 6,344
2013 – 5,593
These numbers show that, despite the low national passing average every year (with the sole exception of 2016 (59.06%), taking the bar exams is still a big deal.
This week’s “Deep Dive” is into the annual bar examinations and why they are not (or shouldn’t be) a big deal.
Open-ended questions, handwritten answers
The bar examinations are the only professional licensure exam not administered by the Professional Regulation Commission (PRC). It is administered by the Supreme Court under Rule 138 of the Rules of Court.
It is the only examination that still uses open-ended questions, not standardized or multiple-choice questions (although this was done in 2011 and partly in 2012), and is still the only examination that requires the examinees to answer by writing in long hand.
It consists of 8 subjects and is given in 4 Sundays in November. Examinees are required to have a general average of 75% in all 8 subjects, without falling below 50% in any subject (although this has recently been waived). Each subject is given a specific relative weight, thus:
Political and International Law, Civil Law, Mercantile Law – 15%
Labor and Social Legislation, Taxation, and Criminal Law – 10%
Remedial Law – 20%
Legal Ethics – 5%
The passing percentage, set at 75%, may also be lowered at the discretion of the Supreme Court en banc upon recommendation of the bar chair.
The annual series of examinations is chaired by a Supreme Court associate justice, who is given a free hand to choose the 8 examiners, all presumed to be experts in their respective fields, to formulate the questions. The final questions will then be chosen by the chair of the bar examinations from the list of questions submitted and included in the examination to be given for each particular subject.
The human factor
The bar examinations are the only licensure exam where the human factor is highly significant.
Each bar examiner is asked by the chair to submit a list of handwritten questions, anywhere from 100 to 150 (depending on the chair’s preference), in the examiner’s field.
In 2014, as bar examiner in criminal law, and again in 2015, as bar examiner in labor law, I was asked to submit 100 handwritten questions for criminal law and labor law. From the questions submitted for each field, the chair then chooses the final questions that she or he wants to include in the final examination for each subject in the early morning of each Sunday. This is a security measure to ensure against leakages.
After each exam, the notebooks for each subject are given to the examiners in batches, confidentially. The identity of the examiner is known only to the chair, the bar confidant, and a small, discreet group of people with “need to know.” Again, this is a security measure to guard against undue pressure that may be exerted on the examiner. The examiner must personally check by hand each and every notebook.
Because the human factor is so significant – the examiner may be checking anywhere from 250 to 500 notebooks a week, depending on how fast she or he checks – a great deal depends on luck, not just knowledge. A great deal also depends on penmanship. As a former examiner in 2014 and 2015, I found that it was much easier to give points, even token points, for answers that were legible, even if not completely correct, than for answers that were barely readable.
Sui generis
The bar examinations are also the only exam completely sui generis – meaning, completely unique and different every year.
The bar chair is new every year and she or he is free, at her or his level, to introduce innovations, changes, and improvements that do not require the approval of the Supreme Court en banc. For instance, the use of transparent bags for easier security spotting was implemented in 2014 during Associate Justice Peralta’s term as bar chair.
The chair appoints the examiners, entirely at his or her discretion. The bar chair has discretion to fix the scope and field of questions (but this was done, in the past years, in consultation with the law deans), and to select the questions that will come out.
Because it is completely sui generis every year, it is difficult to spot trends and patterns other than to look at which areas of law are asked more than others. It is also difficult to anticipate the questions themselves as even the manner of formulating the questions may vary from year to year.
With the exception of 2011, when the Court allowed an experiment with multiple-choice questions (MCQs) as the predominant mode of questioning, the bar has always favored open-ended situationer or problem-type questions that require the examinee to articulate his or her answer and the reasons for the answer. The lack of predictability in the manner the questions are formulated every year makes it a challenging exam to prepare for.
What’s the best test of good lawyer?
At bottom, the bar examinations are still just a licensure exam; for law students, a necessary hazard to overcome on their way to a career in the legal profession. The bar exams should be, and are, no different from the medical, engineering, accountancy licensure examinations; yet, the bar is the only examination that enjoys prominent media coverage, with the results being highly-anticipated and flashed live from a big screen at the Supreme Court, with the top 10 most successful examinees being interviewed live and featured prominently.
So, what’s the big deal about the bar exams?
For law schools, it is a great marketing tool if their graduates place in the top 10 or have a high institutional passing percentage. It is great bragging rights for one year, until short-term memory fades, or until the next bar examinations start.
For law students who pass, it is a big deal because it ends their waiting period – after 8 (or more) years of formal education with 4 (possibly more) years of undergraduate education and 4 (possibly more) years of law school – before they can officially join the legal profession. It is the second to the last gate before the final door to legal practice is opened – the taking of the oath.
For law students who fail, it may be the signal that life must go on – perhaps a life not in the law, for, certainly, there is more to life than law or becoming a lawyer.
I wish I could say that the bar examinations are a complete measure of legal competence, character, or even potential. But it is very difficult to say that because they are, at best, simply a measure of a particular year’s test takers, nothing more.
The best test of a good lawyer isn’t the bar exams, it is being able to live up to every word of the oath that is taken, every day. – Rappler.com
Theodore Te, Ted to many, is a human rights lawyer and advocate, law educator, font geek and comic book fan, occasional movie and music reviewer, a life-long Boston Celtics fan and a loud opponent of the death penalty, violations of human rights, government abuse, and social injustice. Deep Dive is his attempt at probing into issues of law and rights, politics and governance (and occasionally entertainment and sports) beyond the headlines, the sound bites, the spin, and the buzz.
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