Announcer  0:00  
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,

Tim Kowal  0:17 
welcome everyone. I am Jeff Lewis and I'm Tim Kowal AS certified appellate specialists. Both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, please recommend it to a colleague. Yeah,

Jeff Lewis  0:34  
and if you like being surprised in your legal practice, take this as your spoiler alert.

Tim Kowal  0:38 
All right, Jeff, today's guest, Jackie Gardena, is going to talk to us about some things that they're probably not unusual, but they are new to me, and maybe they're new to you. We're going to be talking about some some issues of accessibility and in legal education, and we're going to be talking about some changes in in the bar exam, some that I've not been keeping up on and and some proposed future changes to the bar exam. So we can kind of keep, you know, keep our thumb on the pulse of where the legal industry is going. And maybe one of the questions I want to ask Jackie is, I've been noticing that that a lot of new, new lawyers are suddenly demanding a lot more money and and a lot fewer hours. I want to know if that's it's related to any of the trends that Jackie has been working on. Jackie Gardena leads the colleges of law as dean and chief academic officer, and she hosts the sidebar podcast. It's a twice monthly podcast. You should check it out. Previously, Jackie was Professor of Law and associate dean at Vermont Law School, where she focused on topics including the Solomon amendment, the Don't Ask Don't Tell, law and Domas intersection with the bankruptcy code. She serves on California's Blue Ribbon Commission on the Future of the bar exam and other key committees including the Ventura Harbor port board. Jackie, welcome to the podcast. Thanks for joining us. Thanks so much for having me. And that was the short bio that I read. The long bio would have taken us to the end of the hour. And you do a podcast that we talked and we just mentioned the sidebar podcast twice monthly. And I think you talk about these issues, and I perused your list of guests. You've got a lot of interesting topics there. Tell us a little bit about the sidebar podcast and in who its audience is. Yeah,

Jackie Gardina  2:28 
so thanks for asking about that. One of my colleagues, Mitch Winick, called me up about it two and a half years ago and said, Hey, do you want to do a podcast? And he had this whole pitch ready for me. And I just said, Sure, let's do it. And for us, I think it's a way of taking our natural inclination to educate and bringing it to a broader audience. And so we really wanted to focus on constitutional issues and civil rights. And I have to say, I have learned more through that podcast than I would have had I not done it. And you're right, we've been able to speak to some really amazing people, Nina Totenberg, Robbie Kaplan, Steve Vladeck, people who are doing really cutting edge things in the law. And it's been a joy to be able to be a part of it. Yeah,

Tim Kowal  3:14 
that's terrific. And that's that's very true. That's been my experience as well. I've learned so much by doing this podcast, and it reminds me of that, that bit of wisdom that you know you learn by you learn more by teaching. And that's that's totally true, because you have to, you have to learn some of the subject matter so that you don't come off like a total fraud you only want to look like. So let's get right into talking about the bar exam. I've just been following headlines. I haven't really dived in depth to some of the changes in the past several years, but I know just the the bullet point version is that some of the changes over the past seven years is that the bar exam has been reduced from three days to two days. We've removed the MBE section of the bar exam and there's a lower passing score. Can you talk a little bit more about these changes, where they come from and where they have led us so far?

Jackie Gardina  4:12  
Yeah, and I want to make one correction while the State Bar is no longer going to be using the NC bees, quote, unquote, multiple multi state bar exam portion. There is still going to be 200 multiple choice questions that are part of the bar exam. They're going to be created by Kaplan and not the ncbe, and we can certainly get into why that's the case.

Tim Kowal  4:37  
Okay, so are they going to be California specific, then they're gonna

Jackie Gardina  4:41 
reflect similar to what the ncbe did, which is broad based, probably focused mostly on federal law right now because the State Bar of California can't shift the focus of the bar exam substantively unless they've given law schools two years notice to be able to shift. Shift their curriculum and focus their students in preparation for that exam. So any big shifts to the substance of the bar exam won't happen until law schools have at least two years notice, and that hasn't been given yet.

Tim Kowal  5:12  
Okay, what is, maybe I'm not grasping. What is the What's the objective of switching from the MBE is to a new set created by Kaplan.

Jackie Gardina  5:21 
So an honest answer would be budget. So the National Conference of Bar Examiners, there's two things that they required. One, it costs a great deal for us to get the MBE from the National Conference of Bar Examiners. And two, the National Conference of Bar Examiners requires that that exam be given in a vendor approved location, which costs the state bar a significant amount of money to have the Cow Palace or a place down in Pasadena or LA and the State Bar Admissions Office found itself in a rather large deficit, and scrambled to find a way to close that deficit. One of the ways to close it was to get a new vendor to create the multiple choice questions for the exam, and one that would allow the exam to be offered remotely, so that the State Bar wasn't in the position of both purchasing the large venues for the exam, but even more importantly, perhaps purchasing those hotel rooms and other small venues for those who received accommodations. Okay,

Tim Kowal  6:30  
so for the from the end user, point of view, the the aspiring lawyers taking the bar exam, are they going to see a substantive difference when they're taking that the multiple choice section of the exam.

Jackie Gardina  6:43 
So in theory, the answer to that is is no. In practice, I can't guarantee that, for those of you who know anything about writing a multiple choice exam, it's incredibly difficult, and when the ncbe writes questions, they actually test them during the bar exam. So about 25 questions every year, in fact, test questions that the ncbe gives, but don't count towards the final score, because they're seeing what how they read, whether or not they're they're answered correctly, or if there's problems with them. Now, Kaplan is going in and writing an exam in about six months, they did do an experimental exam to test some of those questions in November. But it's hard for me to say whether six months with only one experimental exam as a testing place is going to be sufficient for the validity of the multiple choice questions to really be that for me to feel confident about them.

Tim Kowal  7:42 
And what about the tell us a little bit about the lowering of the pass the bar pass score. What was the what was the purpose behind that? And what did the effects been that we can tell so far?

Jackie Gardina  7:53 
So I think there's, I mean, the effects are, I can't say it's, it's been a higher bar pass rate. If you look back over the years, with 1440 and with 1390 we still hover around that 50 to 55% bar pass rate in each administration. So it's not as if more people are getting licenses as a result of the lowering of the score, but what I can talk about is what led to the lowering of the score. So I was actually part of the Assembly Judiciary Committee hearing that was held, gosh, seven or eight years ago, in which Elizabeth Parker, the then State Bar executive director, was invited to testify. And one of the questions that she knew in advance, so that she could do some research on was, how did the State Bar of California come up with the score 1440 as the basis for determining minimum competency to practice law in the state of California. And her answer to that question before the Assembly Judiciary Committee was, we don't know. There was absolutely nothing in their records to indicate why they chose 1440 there was no standard setting done to establish that 1440 was, in fact, the appropriate score to determine minimum competence in the state of California. That did not go over well, as you can imagine, and the Supreme Court of California ordered the state bar to do what's called a standard setting study. And the standard setting study is bringing psychometricians in and they do things I don't understand exactly, but they come up with what they call kind of a range of appropriate scores. And 1390 was a range of the appropriate scores for the bar exam. After that standard setting came out, is when the Supreme Court of California lowered it to 1390 so one could say that 1390 is actually an accurate score for determining minimum confidence if one believes in the psychometricians work and 1440 was just a random number they chose out of the air.

Tim Kowal  9:55 
What is a standard? A standard setting study? Do. I mean, I understand that the objective is to try to come up with some sort of objective number that would that would tell you someone, someone who tests and meets this number, is going to be a competent attorney. But what does that mean? It's still that that number. How do you translate that number into competent attorney? Yeah, well, first you'd

Jackie Gardina  10:17 
have to start with the premise that the bar exam, in fact, establishes competency to practice law, and I would like to challenge that premise off the bat. So picking a number of 1390 to say passing an exam that is a two day timed exam with multiple choice questions and timed essay exams as a measure of competency is questionable to begin with. But I'm not going to try to explain the psychometricians work, because it still confuses me. But there's an entire study on the State Bar website that identifies the steps that they went through to kind of get the range of answer or scores that would meet that minimum competency.

Tim Kowal  10:57  
Well, so, so with that topic, teed up of you know, how do you determine what competency is and is does the bar exam? Can it even get to assessing competency? What is, what is left? What is the path forward for the bar exam to actually to get us from a crop of aspiring attorneys and weed out the ones who are not going to be competent attorneys, and leave us with the batch who are going to be competent and serve the public and serve their clients and serve the justice system well?

Jackie Gardina  11:26 
Well, I mean, certainly I'm not someone who necessarily believes a standardized test is the answer to that. I think a standardized test establishes who's really good at standardized tests. If you're going to do well on the LSAT, it's more likely that you're going to do well on the bar exam in part because your brain works in that context, and that's fantastic. And I've been very fortunate that my brain is a brain that works well in a standardized testing environment. Does that mean that I'm a great attorney, or was a great attorney when I was practicing? No, I was completely clueless when I came out of law school, even when they gave me my license to practice law, if I had hung a shingle out on my own, it would have been a disaster. So luckily, I was part of a firm that gave me lots of great mentoring. So I don't believe that a standardized exam is the best way to test competency, but it's the way that we've chosen to do it since about the 1970s and so and it appears as if the California State Bar is going to continue to use that the California Blue Ribbon Commission on the Future of the bar exam did make a recommendation that the bar exam be altered, and it could be altered in a couple of ways. One, a change in the subject matter. So the other thing about the bar exam that makes it somewhat ridiculous is that not only did they not do a standard setting study to determine what score should be, they also never did what's called an attorney practice analysis that is figuring out what does a new attorney actually need to know and understand, so that they could then build a test that would test for the things that a new attorney needs to be competent at so we actually in California have now done that analysis, and maybe you, or some of your listeners list participated in the survey, and the Blue Ribbon Commission took the outcome of the practice analysis and said, All right, what would a bar exam look like if we were actually testing When a new attorney needs to be able to know and do well, it would have fewer subjects because some of the subjects being tested on the current bar exam weren't actually relevant to a new attorney's practice, and it would be testing subjects that aren't currently on the bar exam. And one that stood out really brightly was administrative law, so the blue ribbon commission made some recommendations about changing the subject matter of the bar exam, reducing the number of topics tested, moving away from a closed book environment, simply because that doesn't reflect the Reality of practice, and trying to impose more skill based opportunities in there, and not just kind of knowledge based opportunities to show your competency. What the Blue Ribbon Commission didn't do is recommend an alternative pathway to licensure, but the Board of Trustees of the State of California after the Blue Ribbon Commission provided its recommendation, said we'd like to actually know about an alternative pathway to licensure. So I was able to serve on the working group that presented the Board of Trustees with that alternative pathway to licensure option. Can

Tim Kowal  14:38  
you give us a thumbnail of what that alternative would look like if it's not, if it's not something like the traditional bar exam that we all know and maybe not love, but we know it,

Jackie Gardina  14:47 
and think that everyone after us should have to go through it as well. I know the right of passage. It's like the right of passage, yeah, it was more of a supervised practice portfolio Bar Exam. Pathway. So it required independent work to be submitted, to be scored, but it was based on and a certain number of required hours and both pathways would be available. The State of Oregon has adopted the portfolio bar exam pathway. Nevada has taken what I think is probably going to be a more popular pathway, which is a general knowledge test that can be taken during law school, followed by supervised practice. Washington has adopted a supervised practice pathway as well, and as we know, Wisconsin has had diploma privilege for ever, and there is absolutely nothing within their statistics to suggest those who entered with diploma privilege were any more at risk for ethical or malpractice issues than those who passed the Wisconsin bar exam. So we certainly have examples, both historically as well as currently, of something other than a standardized test being a way to measure competency.

Tim Kowal  16:03  
You mentioned, Wisconsin has a diploma privilege. What's a diploma privilege?

Jackie Gardina  16:08 
Diploma privilege in Wisconsin, and it used to be the norm in states across the country. Wisconsin was the only one that kept it is if you graduate from a Wisconsin law school, and there's only two Marquette and University of Wisconsin, you're automatically admitted into the bar in Wisconsin without sitting for the bar exam.

Tim Kowal  16:30 
Okay? So the so the law school pretty much vouches for you if they give you a diploma. They're vouching that this is going to be a competent attorney,

Jackie Gardina  16:38 
correct? And there's no evidence that the bar exam kind of makes a difference in terms of how Wisconsin lawyers perform in terms of ethical issues or malpractice issues. So

Tim Kowal  16:51  
is the Wisconsin model a model that should be followed. You mentioned that most states followed that model until what was it around the 70s or so when, I guess, when a lot of states decided that we need a new, shiny, new object, a bar exam as a as an addition, we're going to heighten the competency of the bar in our state. So

Jackie Gardina  17:12  
it actually goes back a little bit farther than that, more like the 20s and 30s, and it coincides with the access of black and indigenous people to education in ways they hadn't had before. So one of the things that legal the law profession did is say, Hey, if you want to be a lawyer in our state, you have to have a BA degree, and you have to go to law school. And then if you do those two things, we're going to let you practice in our state through something called diploma privilege. So it actually was intended to close the door on marginalized communities from having access to law schools, or, I should say, the legal profession, because although black and indigenous citizens had access to education, it was very few and far between that they were able to get into a higher education institute, even rarer that they were able to get into a law school. Well,

Tim Kowal  18:04  
and then, can you close the circle for us on so where did, where did the the law the bar exam come in, if we've got a system where we have law schools, what was the bar exam meant to be a way to do to close a gap there where people who are not didn't have access to diploma privilege could get a license to practice law a different way. Yeah,

Jackie Gardina  18:30  
well, standardized tests kind of came into vogue in the 1950s it's when the SATs were created. So standardized tests started to become more of a norm for entry into either higher education or into professions at that point. But it probably took about 20 years from the development of that kind of norm for it to be the norm within the legal profession itself.

Tim Kowal  18:55  
Okay, well, so what is, what is the path forward? Is it? Is it the diploma privilege model and doing away with the bar exam entirely, or is there a kind of a middle ground? Are we going to try to ease, ease our way off of the bar exam, throttle down progressively, rather than ripping off the band aid all at once?

Jackie Gardina  19:15 
Yeah, I don't know that the bar exam will ever go away, at least not in my lifetime, but whether or not there'll be alternative pathways to practice, I think, will depend in part on the experiments that we're seeing come out of Oregon, Washington, Nevada, New Hampshire, Wisconsin is already rich with data. So I think California is in a tough place when it comes to diploma privilege because of the number of different kinds of law schools that they allow graduates to sit for the bar exam in California. So I'm not sure diploma privilege is a realistic pathway in California, but I do hope at some point, California will look beyond the bar exam into some alternative pathways to licensure. The Supreme Court rejected the alternative pathway that was presented to them, in part because they said statute didn't allow them to move outside of the General bar exam, because that was a statutory requirement. So the next step would be to approach the legislature to see whether or not loosening up some of those stricter requirements to allow for alternatives is a possibility. Yeah, it

Tim Kowal  20:25 
sounded like you had a question that

Jeff Lewis  20:27 
was exactly it the role of the legislature in conjunction with the State Bar, in terms of the future, and do you have any prediction or inside knowledge on whether or not the legislature would be open to softening the rules in terms of allowing for this alternative path. I

Jackie Gardina  20:46 
think there's, there's members of the legislature that are open to discussions to an alternative path. I don't know whether it would be a priority of the legislature, and I think the at least my experience has been the attorney lobby in the state of California is extremely strong and isn't in favor of an alternative pathway to licensure, so I think it would be a battle. Yeah,

Jeff Lewis  21:12 
interesting. I wonder on a totally unrelated point during COVID, I imagine bar exam had to shift gears in terms of how the test was administered and graded, etc. Did the bar exam learn any lessons from COVID that they've taken forward and retained in a post COVID world in terms of how to administer the test, and any good come out of COVID in terms of how the bar exam changed for that short period of time? Yeah.

Jackie Gardina  21:41 
I mean, it's a good question. One thing they learned, and I think it certainly influenced how they approached their decision to move to Kaplan and away from the ncbe, was the ncbe refused to allow remote exams with the multiple choice questions. So that's why that july 2020 exam was moved to october 2020, because the ncbe said, No, you can't use our questions in a remote environment. That lack of flexibility, I think, really hit the state hard and made it think twice about whether or not, not just budget wise, but whether or not they wanted to create the flexibility of a remote exam, because I think COVID gave that kind of evidence that remote exams could be possible. And by

Jeff Lewis  22:28 
the way, is California an outlier, or other states kind of jumping ship and moving away from the NCBA multi state exam?

Jackie Gardina  22:37 
Yeah, so the ncbe is has created what you might have heard called the next gen exam. And the next gen exam goes into effect in 2026 and you either have to adopt the next gen exam or you have to, like, not have access to anything, meaning that you don't get access to the MBE any longer. So I think New York, there's not all states have adopted the next gen so it provided an opportunity to break with the ncbe in a way that kind of was post COVID, post kind of, what do you mean? We can't do this remote during a pandemic, and we're not ready to adopt this new exam because it hasn't been fully tested yet. So California may move in the direction the next gen, after it's been out for a while. I don't know. I

Tim Kowal  23:29 
see, let me go back and ask a question about something, something that you mentioned earlier, made me think of this when, as as most of us know, in California, the California bar does, does not reciprocate with bars of other states. So if you pass, if you're a lawyer in good standing in another state, and you want to to wave into California, you can't do it. Many other states have ways of waving in but California doesn't that. It occurs to me that maybe there's, there's one of two reasons California has that more restrictive rule. And I'll pre object to this question as argumentative. But here it is. The first possibility is that that California takes a position that no we, we, we set the bar much higher than everyone else. Our attorneys are much more competent than the attorneys of all you other states. Or option two is, well, the laws in California are so complicated that it's just too hard to be a competent attorney here, so you have to take our special bar exam. So is it one of those two options, or is it something else?

Jackie Gardina  24:34  
I would say none of the above, but I can't I know, having been a lawyer in another state, I reckon every state thinks they're exceptional. Every state thinks that their laws are need to be understood and learned and tested on in a very specific way. So California isn't exceptional in thinking that it's exceptional, and I can't. Speak to the competency, the attorneys I've worked with on the East Coast are incredibly competent. The attorneys I've seen here are incredibly competent. So I don't think that's it either. What I can say is that the Blue Ribbon Commission on the Future of the California bar exam did recommend to the Supreme Court of California to allow for reciprocity under a particular set of rules, as you might experience in another state, you know, so many years of practice, good standing, etc, and the Supreme Court rejected it. So the Blue Ribbon Commission, after looking at the map and looking at everything, said, well, at least one thing that might be a good pathway is reciprocity. Not only would it help our attorneys wanting to practice across borders, it would also help attorneys who want to come here, but Supreme Court rejected that. So did

Jeff Lewis  25:51 
the California Supreme Court reject that because the legislature is the law set up a certain way that they didn't have the power to do it, or did they just say, No, it's not a good idea. I believe

Jackie Gardina  26:02 
that the rule regarding outside attorneys rest primarily with the Supreme Court. The legislature does have some pathways regarding in house counsel, military spouses and things like that, but I don't think it's based in statute. But to be honest, I'd have to go back and look at the order of the Supreme Court,

Tim Kowal  26:23 
I see, and one one last question as we just tie up this, this issue of the bar exam, and we'll make sure to include a link in the show notes so our listeners can find as it can keep up with the updates on this subject From the Blue Ribbon Commission. But what are the what are the factors involved? Obviously, we want a competent bar. We want and we want objective standards. We don't want to just set the set the rules arbitrarily as a barrier to entry. What are some other factors? What? Why is this so hard? Is it because it's is the data inconclusive? Is the the weighing really difficult, or is it because maybe, as a as a group, we can serve we, we lawyers tend to be kind of traditional, and we've a we've all practiced with the bar exam, and, you know, we'll be damned if we see it go.

Jackie Gardina  27:20  
I certainly think that that plays into it. I mean, it's inevitable. Change is hard, and there's always going to be people that resist it, but I think the reality of creating a new exam, especially one that isn't standardized, is creating one that's fair, valid and reliable. Those are the three things every exam needs to be and that means that if a person takes the exam in February, it's going to be comparable to exam sat in July, comparable to the one that is taken the next February. And so that's why there's the loss of the MBE, which is national so across the country, and things are scaled against that MBE. The MBE, in many ways, is that kind of fair, valid and reliable piece of the bar exam that everyone takes and we have data on, and then the essays are scaled against it. So I think one of the biggest challenges, it's not that it can't be overcome. Is, how do we create that kind of fair, valid and reliable exam that we know is a measure of competency, standardized exams, at least, gives us the illusion that we're doing that I can argue on fairness. I can also argue on validity, but, but that is the big psychometric kind of argument against going away from a standardized exam. Well,

Tim Kowal  28:50 
and we've been talking about the bar exam as it's kind of an issue of accessibility into the practice of law, on that, on that broader subject of accessibility. You've also done a lot of work with the California Supreme Court in reshaping legal education to make it more accessible and inclusive. Can you discuss, what are some of the programs and proposals that are being developed to address these kinds of barriers to accessibility, and what does accessibility mean? Just to kind of orient the discussion about, what are we what, what is the problem we're trying to solve here?

Jackie Gardina  29:24  
Well, I think part of the problem we're trying to solve is one that I described earlier, that kind of the barriers to the legal profession were set up at a time getting an undergraduate degree, going to law school, sitting for a bar exam, at a time when, when, sadly, the profession was attempting to restrict those individuals. They didn't want to enter it. So immigrant arbitrary restrictions. Yeah, correct. So part of it is like, Well, should we, can we erase or lift some of those California already? Does that by statute. As as frustrating as it is for some, you don't even have to have a college degree to sit for the bar in California, you don't have to have a bachelor's degree. You could have just an associate's degree. You could have no degree, and you're eligible to sit for the bar in California. You don't have to go to law school to sit for the bar in California, you could sit for or do it through the practice route. You have to eventually sit for the bar, but you don't have to attend law school. So California has already done so much more than other states to actually make the legal profession accessible. I would say the bar exam is a sticking point, but it's not so much the work that I've done, but the work that the state has already done through statute that opens the door to the legal profession in California so much wider than it's open in other states now that opportunity is meaningless, or that access is meaningless unless there's actually support and structure to help those students be successful, not just in the pathway they've chosen, but ultimately on the bar exam. So the bar exam is really the measure in California, since you don't have to attend law school for who is going to be allowed into the profession. And so what happens for me anyway, is that I'm not preparing people for the practice of law, I'm preparing people for the bar exam. And I see those two things as incredibly different. And so when you say there's people out there who, oh, my god, I can't believe they passed the bar exam, well, I could probably believe they passed the bar exam, but they're in no way prepared to practice because their entire educational experience was based on passing the bar exam, which is very different from being competent to practice law. Yeah.

Tim Kowal  32:00  
Yeah, I Yeah, a word that that is sometimes used as Credentialism. We live in a world that's that's highly credentialized. Any profession you want to go into, a lot of industries you want to go into, you have to get some credential or a license or a permit or approval of some sort. But let me off, you know, and I tend to be against Credentialism, but let me offer like one or two cheers for Credentialism. And that's a credential that the Jeff and I both hold is a certification issued by the State Bar for the or the specialization of appellate law. And I value that credential very much. It was something that that I worked hard to get. It is something that I can put on my email signature or on my website, and it sets me apart from other attorneys. And I could say, Hey, I'm one of only, you know, two or 300 of such attorneys, so that's why you should choose me. Yada yada yada. But getting that that credential did require me to do a lot of additional education. It gave me a lot of confidence to go through and get that education and then get the credential. And it is, it is been more than just a mere economic value, because it's a form of protectionism, but it actually did make me a better attorney, and I could propose a compromise, maybe that, that I would agree with you, that maybe we should, you know, not be so credentialized in with the bar exam and eliminate, or at least relax that barrier to entry, but maybe have even more credentials in other areas of law. And then we should have local Credentialism that the Orange County Bar Association approves this attorney, you know, or this group of attorneys, and have some localized sets of approvals bar Credentialism to say that we vouch for you. You know anyone can practice law, or more people can practice law, if you have this bear legal certificate, but maybe more astute clients will look and see, yeah, this my the legal community where I am vouches for this person, as some someone is specially approved.

Jackie Gardina  34:02 
And so I have two questions for you. One is or a question and a comment as as as it goes. One is, what did you have to do to establish or earn that credential?

Tim Kowal  34:14 
The we have to sit for an exam. And it's not unlike the bar exam. There is a there's a multiple choice section of it. It's a full day long. Half the day is multiple choice, and the second half was written closed

Jeff Lewis  34:26 
book. By the way, some certification exams are open book. This one is closed book.

Tim Kowal  34:31  
Yes, that's something that we do. Like Jeff never fails to mention that,

Jeff Lewis  34:35 
because you're in the same room as all these other specialists, the family law and the probate guys, and they're whipping through a book. And you know, the appellate sides are like, Wait, you're not. On

Tim Kowal  34:44 
the other hand, Jeff, in fairness, we have to know zero substantive law to become an appellate specialist. It's all procedure, yeah, so maybe, in fairness, maybe you

Jackie Gardina  34:54 
have to have so many hours of appellate practice. Yes,

Tim Kowal  34:58  
there's a. Complicated matrix, a point system of how many cases you've handled, what types of cases, number of oral arguments, number of opening briefs, appellate briefs, repetitions, et cetera, et cetera. So the specialist

Jackie Gardina  35:09  
has adopted what, essentially Nevada has adopted, which is a generalized knowledge test followed by practice, however you might set it up that, I think, is a better example of credentialing than if you just had to take an exam about procedure and then they they stamped your their you with approval.

Tim Kowal  35:31  
Yeah, yeah. So, so what is that that system is? Can you describe it a little bit more? You said that was Nevada.

Jackie Gardina  35:39 
The state of Nevada just adopted it a multiple choice knowledge test that you can actually take before you graduate college. I mean, excuse me, law school, and then a number of of hours of practice after leaving law school with certain parameters attached to it. So yes, knowledge test like you took, and yes practice to establish that you're actually the scary thing for me is really I could take the bar exam, do well, and then hang a shingle for tax law and never have been tested on tax law and maybe never even taken a course on tax

Tim Kowal  36:17  
law and without a lick of personal experience, correct?

Jackie Gardina  36:22 
So that it's just, it's a system that doesn't make much sense when you examine it closely,

Tim Kowal  36:27 
yeah, yeah, that's right. It's a that's that's a good way of looking at it to get to get a, become a certified spell specialist in any of the areas of law, special Legal Specialization recognized by the California State Bar. There is a, there's an on ramp period. You know, you have to be a practicing attorney. You have to have a certain number of years during which you have to attest that, yeah, I, most of my work was done doing probate law or doing tax law or doing criminal law, whatever it was appellate law, so that you have practical experience when you're going in and you're not getting a legal certification site unseen. Have it with having had no practical experience in that area of law, but with the bar exam, you are suddenly you you get a license and you have no practical experience whatsoever. Is a competent attorney is just going to go out and hang out their shingle? No, they're probably going to go get hired somewhere, so they have a mentor. And so maybe that's maybe the light bulb should go on that maybe that should just be kind of the process, some some mentorship process in getting the bar exam, getting a license in the first place, and not putting so much esteem or pressure on the bar exam, as if that is going to establish once and for all, that this is the batch of competent attorneys that are going to serve the public. Agree? Yeah. So what is so? That's so that was talking about accessibility generally, and we didn't quite get away from the bar bar exam and into lead legal education. But maybe we did, is that maybe that's the idea is, is that there should be kind of a fusion between legal education leading up segueing into the practice of law, rather than just having this, this toll booth where you you cannot pass go until you pass the bar, you have to have some kind of confluence of abstract, abstract knowledge that you get from law school and practical knowledge that you get from the practice.

Jackie Gardina  38:30 
I would like to create a law school curriculum that is really focused on the practice of law, including the generalized knowledge and the foundation that one needs to understand all the specialized pieces to really do that in a way that is meaningful. But I would say the other piece of law school and accessibility is it's hard to divorce entry into law school from entry into the profession, because it's required in almost every state, so you can't really talk about you have access to law school. That doesn't mean you have access to the profession, because you still have to take the bar exam. So the two are married in a way that it's impossible to talk about the two separately. I will say this the legal profession is one part of the legal industry, and the legal industry is growing, even though the practice of law is shrinking in some ways. So there is the possibility of parlaying a JD without a license, into a very promising kind of professional trajectory in the legal industry.

Tim Kowal  39:49 
Can you? Can you separate those out a little bit? What is? What does that mean that the legal practice is different from the legal industry? You give us some examples of what's a profession in the legal industry that's different from practice. Sure.

Jackie Gardina  40:00 
You might think of legal, operations, data analytics, regulation and compliance, which rarely requires a license. So lots of parts alternative service providers love them or hate them, they're growing and they're out there and so E discovery, you don't need a license to practice law to be part of an E discovery team. So there's lots of of growth opportunities in the industry that don't actually require a license. When I first got out of law school, I mean, I cut my teeth basically sitting in a big room with boxes doing discovery that was paper based. They don't need me anymore to do that. That wouldn't be something I'd cut my teeth on coming out of law school. They're going to have ai do that, or someone without a law degree to do the bullion searches and find the stuff they want. So it's just a very different legal services industry than it was 20 or 30 years ago, and law schools can adapt to that new legal industry and create pathways into the profession that don't require a license, but where the JD provides meaning,

Tim Kowal  41:14 
will the law school will there be? Will the law schools be the same? They'll just will they have different programs or curricula for those different pathways into the broader legal industry that don't necessarily where students might not maybe they know that I just don't want to practice law, but I think that there's a lot of interesting stuff going on in the legal industry, and I'm more interested in those things.

Jackie Gardina  41:37 
Yeah, I mean, I think the JD will always be kind of associated with the license, although JD advantage jobs, if you go on indeed or Glassdoor and type in JD advantage, you're going to see a lot of things pop up. So it's not the exclusive thing you can do with the JD. People often talk about the JD being very transferable into other areas. But I think one of the things that you're finding in the legal industry is that law really sits at the intersection of business and technology. So having the ability or having competence in law business and technology is going to be a boon. And we actually have a master's in business law and technology at the colleges of law really aimed at helping learners who are in the profession don't necessarily want to license a practice law, but want to be able to advance within the legal industry in some of these emerging fields.

Tim Kowal  42:34 
Are there any other ways as we as we wind down our conversation here, any other proposals or ideas that would make legal education more accessible,

Jackie Gardina  42:45 
um, so I don't know that it's so much making legal education more accessible, at least not in the state of California, because California is doing a pretty good job. I think that the

Tim Kowal  42:55 
How so, if you would, when you say California is doing a good job as compared to wear. What are the things we're doing? Right?

Jackie Gardina  43:03 
There's multiple pathways into the profession. You've got your traditional ABA schools, you've got your California accredited law schools, you've got your registered law school, and you practice pathway to sit for the bar exam. You don't have to have a bachelor's degree. You don't have to have any degree. So California has set up the framework for access to the legal profession. What I would say is the problem is the legal profession itself. The legal profession is built on a prestige model, and so those who enter the profession through non traditional pathways, and that really means not going to a traditional ABA law school and sitting for the bar and entering the profession through that pathway. Are met with some resistance. So I would encourage the state of California, or really the practicing bar, to recognize that the pathway into the profession isn't as important as whether or not the person across from you is a skilled, competent and ethical attorney.

Tim Kowal  44:12 
Yeah. How do we train attorneys to get off of the prestige model?

Jackie Gardina  44:16 
And I'm gonna need some help from you guys on that. Yeah,

Tim Kowal  44:20 
yeah. Well, Jeff and I are already trying to, we're already, you know, we already have have an insecurity problem, because we don't, we don't have a, you know, prestigious federal clerkship. And so we're always trying to let the air out of that balloon that, ah, it doesn't really mean that much.

Jackie Gardina  44:35 
Well, having had one, it really doesn't well, and

Tim Kowal  44:39 
so, and then we're but then, then again, we're also maybe part of the problem, because we're trying to say that, you know, having a legal certification as a specialist in appellate law really makes us uniquely qualified. But maybe, maybe not, all prestigious marks of prestige are created equal. But maybe we should try to. To judge, ultimately, judge the attorney on their own merits. That's a good place to start, I think. Yeah. JACKIE Gardena, thank you so much for joining us. That was a great conversation. I enjoyed all the things that you told me, I did not, could not grasp a lot of those things, and now they will be, they'll be front of mind, and that broadens our perspectives. I don't know about Jeff, but it broadens my perspective. I'm a broad mind, of course.

Jeff Lewis  45:26 
Yeah, learned a lot. Thank you. Yeah, absolutely.

Jackie Gardina  45:29 
And Jeff, you're such a talker, it was hard to get a word in edgewise with you.

Tim Kowal  45:36 
All right, well, Jeff, that's gonna wrap us up this episode. Yeah, if

Jeff Lewis  45:39 
you have ideas for future episodes or guests, go ahead and email us at info, at Cal podcast.com, and in the meantime, look for future episodes about learning to lay the groundwork for an appeal in the event of a trial.

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