A Law School Oral (Argument) Exam: Should an Oral Component be Added to the Law School Examination Process?

This will be my last post here at PrawfsBlawg, and I again want to thank Dan Markel for having me as a guest blogger for the month of April. I also want to thank the PrawfsBlawg readers for your helpful comments on my posts. 

In the wake of the Carnegie Report, law schools and law professors across the country are funamentally re-evaluating the way that legal education is being conducted. Recently I read a great article, From Grimm to Glory: Simulated Oral Argument as a Component of Legal Education's Signature Pedagogy, 84 Ind. L.J. 589 (2009) by Lisa T. McElroy. In the article, McElory "propos[es] that law professors regularly use simulated oral argument exercises to supplement traditional Socratic dialogue, [thus] meet[ing] head on the concerns expressed by Best Practices and Carnegie that over-reliance on the Langdell method neither mimics law practice nor nurtures student learning."

The article got me thinking that, at least in one way, law school is an enigma wrapped in a paradox. Throughout the semester, law students, more so than maybe any other students, learn material through their oral participation in class, under some version of the Socratic method. At the same time, law students (at least in substantive classes) complete written work for evaluation throughout the semester less so than maybe any other students. And yet, when the end of the semester rolls around, these same law students are tested almost exclusively based upon the quality of their writing and almost never based upon the quality of their oration (besides minor bumps up or down for class participation).

Of course, it wasn't always that way. As Ron M. Aizen notes in Four Ways to Better 1L Assessments, 54 Duke L.J. 765 (2004):

Today, first-year law students typically receive course grades based entirely, or almost entirely, on single end-of-course essay exams. Using a single exam to measure law student performance contrasts markedly with earlier practices at American law schools. From the early- to mid-nineteenth century, students were generally assessed far more frequently than they are today. For example, at the Litchfield Law School, the first professional American law school, students took weekly oral exams. Harvard examined students orally or in writing both weekly and "at the end of each text or topic." Michigan hired recent graduates and young lawyers to oversee daily oral and written examinations. Cornell, Penn, and Columbia combined frequent, often daily, quizzes with more cumulative assessments, such as end-of-term, annual, and graduation exams.

In the late 1800s, however, law schools began to use final exams as the sole measure of student performance. At Harvard in the early 1870s, students were for the first time required to pass annual exams to receive their law degrees. This innovation was introduced by Dean Christopher Langdell, who also popularized the case study method. The case method and the sole final exam allowed law professors to teach and evaluate large classes of students--and high student-faculty ratios were financially advantageous. Dean Langdell's economical model was eagerly embraced by other American universities. By the end of the nineteenth century, the use of single exams to assess student performance had become widespread among American law schools.

In the wake of the Carnegie Report, many have proposed and/or implemented some form of the pre-Langdellian practice of students completing written and oral assignments throughout the semester. I haven't, however, seen anyone proposing some form of oral examination at the end of the semester to match the oral learning that takes place throughout the semester. 

One reason would seem to be that most law professors would have no idea how to give an oral exam because we don't have formal education degrees and we weren't given oral exams in law school. A second reason would seem to be that it is not possible to give oral exams in classes subject to blind grading (i.e., the vast majority of law school classes).

But assuming that a professor could get a pass on blind grading in a class or that the professor were teaching a smaller class not subject to blind grading, what might an oral examination look like? My initial thought was to transform Professor McElroy's simulated oral argument technique into an exam. A professor could prepare something like a moot court problem with materials, have students prepare a brief, and have them participate in oral arguments. Such an oral exam would actually be an oral/written exam and allow students to be evaluated based upon both the quality of their writing and oration.

Do any readers have any thoughts about how a law school oral exam might look and whether it makes sense to add an oral component to the law school grading process? In doing research, the only discussion I found on the subject was in Oral Examinations as a Method of Evaluating Law Students, 51 J. Legal Educ. 130 (2001), where John M. Burman describes how he observed oral examinations of law students in Russia (which seem a lot like high school extemporaneous speaking competitions) and then applied a similar technique at the University of Wyoming College of Law:

Russia

Oral exams are scheduled for a time and date....All the students who wish to take the exam arrive at the appointed time, most dressed as for a court appearance. The testing procedure then goes something like this. Five students enter the classroom while the others wait in the hall. Each chooses one question from about fifty; the questions are typed on separate slips of paper and placed face down on the desk. Each student is then allowed time to think about the answer (without books or notes). As soon as one of the five is ready, she meets with the teacher. After she answers the written question, along with any followup questions, the teacher assigns her a grade, which is then entered into the student's grade book and on the official grade sheet that is later given to the administration. The student then leaves the room. As one student leaves, another enters and selects a question, and the process repeats itself, for hours, until each student has met with the teacher. 

Wyoming

I scheduled the oral exams for the second-to-last week of class. Instead of the cattle-call approach used in Russia, I took a more organized approach. I prepared and distributed a set of general instructions for the exams, which we then discussed in class.

I instructed each student to sign up to meet with me for twelve minutes. Thirty minutes before the appointed time, the student could pick up the exam from my secretary. The exam was similar in scope and content to written exams. It contained a fact pattern followed by three questions. The exam was open-book. Students could consult whatever sources they wished to outline or otherwise prepare an answer to the written questions. They were also instructed to expect additional questions from me.

I began each session by telling the student to begin wherever he wished. Most began with the first question, but others elected to start with the second or third. I found that I invariably began asking clarifying questions within a couple of minutes. Such questions are helpful in determining the depth of a student's knowledge. And an Are you sure? question yields interesting results. On the one hand, it may cause a student to reflect, perhaps take another approach, and demonstrate his knowledge. On the other hand, it allows students who are not well informed or prepared to confirm their lack of knowledge. To virtually eliminate the possibility of cheating, I use several different exams. My secretary rotates them randomly so a student does not know which exam she will have until it is time to pick it up.

I took copious notes during each exam so I could review my impressions later, as well as explain to students where they had done well or poorly. At the end of each day's exams, I classified the exams from best to worst and assigned tentative grades. At the conclusion of all exams, I reviewed my notes and the tentative grades before assigning final grades. Students were then able to get their grades from my secretary before finals, and several met with me to discuss where they had gone astray.