Re­flec­tions on the Bar ex­ams – Week Two

Manila Bulletin - - Views • Features - By J. ART D. BRION (RET.) Read­ers can con­tact the writer at jadb.legal­front.mb@gmail.com.

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”).

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