On Appeal: The Case for a Rigorous N.Y. Bar Exam
2.7.2025
Justice Mark Dillon of the New York State Supreme Court, Second Judicial Department, agreed to spend an hour discussing the New York bar examination with the co-chairs of NYSBA’s Committee on Legal Education and Admission To The Bar, Suzanne Darrow-Kleinhaus and David R. Marshall, who co-authored the feature article in the Fall 2024 issue of the NYSBA Journal concerning the negative consequences triggered by New York’s adoption of the UBE in 2016. (Read the article at this link.) Justice Dillon’s multi-dimensional career in the law gives him an especially valuable perspective on the impact that the bar exam has on law students, practitioners, judges and clients. A transcript of Justice Dillon’s interview has been reproduced on the NYSBA website to make his remarks more broadly available to NYSBA’s members and Journal readers. The transcript has been edited for length, continuity, and clarity.
DRM: Welcome Justice Dillon. Thank you for agreeing to be the featured guest at this virtual informational webinar about the New York State bar exam. Let me introduce you to our listeners with a thumbnail sketch of your career milestones. Justice Dillon started his career as an assistant district attorney; was an associate and partner for many years in two civil practice law firms in Westchester County; served in the front-line trenches of the civil court system as a local town court judge for a number of years; has taught New York civil practice at Fordham Law School for 16 years; and, since 2005, has served as an appellate judge in the Second Department of the New York Supreme Court. The Second Department covers half of the population of the State of New York, and handles the largest volume of appellate cases of all the four judicial departments in New York.
A Decline in the Study of New York Law
DRM: Justice Dillon, the Fall 2024 Journal article about the UBE described dramatic declines in enrollment in New York civil practice courses at three New York law schools after New York adopted the UBE and eliminated testing of New York law for one full day of the bar examination. Can you describe what happened to the course you teach at Fordham Law School in New York civil practice after the UBE was adopted?
Justice Dillon: For years, enrollment in my course was a hundred students, with some others turned away because the fire codes limited us to no more than a hundred students in the classroom. When New York State converted to the UBE, my enrollment fell to roughly 17. That number has rebounded somewhat to the mid-thirties, low-forties, but many of my additional students are international LLM students, who, to their credit, take New York practice to familiarize themselves with New York law as a means of compensating for having legal training that is derived mostly from a foreign country.
DRM: Can you elaborate on how the adoption of the UBE affected the number of sections of civil practice that used to be taught at Fordham and the number that are taught now?
Justice Dillon: Sure, and I’m also very, very grateful that Domenick Napoletano [NYSBA President] is on the line. It does show the importance of the subject. Now, Fordham, I don’t think is really much different than what was happening in any of the law schools in the State of New York. But prior to the implementation of the UBE, there was my course that was taught in the daytime during the spring of every semester with that 100 cap to it that was mentioned. But we also had a professor who taught New York practice in the daytime of the fall semester, and we had a professor who taught New York practice in the evening division in both the fall and the spring. So it was a total of 4 offerings.
My class was always the largest one, because most students take their classes during the day, and most students before the UBE wanted to take New York practice in the spring, because it was closer to the bar exam than the prior fall would have been. But when the numbers for interest in that subject crashed, the school did what you would expect any school to do, and it reduced the number of offerings in New York practice to what it is now, which is just my one course in the spring of every semester prior to the bar exam.
But a lot of my recent increase in numbers, as mentioned, are international students that are coming from abroad. They have their degree from a foreign school. They can spend a year getting an LLM and then be eligible to take the New York State Bar Exam. And I would say now that about 25% of my class is comprised of LLM students, and the remaining 75% are the traditional type of JD students.
DRM: How are students being advised as to whether to take your course? And how is it that the foreign LLMs came to the understanding that a good way to understand the American legal system, especially in New York, is to take New York practice?
Justice Dillon: As to the foreign LLM students, I don’t have any direct knowledge how they’re being advised by the law school, or whether it’s just a matter that they’ve figured out on their own. But as far as the JD students are concerned, I do know, from conversations with some of my students over the years that the Bar Review courses are actively encouraging students to not take New York practice, wills, domestic relations. Those subjects are practical in nature but are very unique to New York. And you can understand the motivation of the bar review courses that I’m told are doing that. Their interest is to get their students to pass the bar.
It’s important for law schools to have a high bar passage rate for purposes of the U.S. News ranking and other rankings. And the Bar Review courses, of course, their interest is just getting people through the bar exam. The bar review providers really don’t have any interest in how capable that person might be to start handling files once they get sworn in as an attorney and get to work as an attorney.
So, I would imagine that any advice people are getting to stay away from these courses, and I don’t want to limit myself to New York practice…I would include wills and domestic relations…can only have the effect of depressing the numbers of students that are coming into those courses.
DRM: Your teaching at Fordham encompasses a period well before the UBE and then afterwards. Is there a difference in the type of student that took the civil practice course before the adoption of the UBE? Was it the case that somebody who’s going to a general practice firm to do corporate law and wills and real estate, not just litigators, enrolled in the pre-UBE period and now, after adoption of the UBE, only people who are absolutely certain, in their third year, they want to be New York litigators enroll in your civil practice course?
Justice Dillon: Yes, going chronologically, I can tell you that prior to the UBE, when we had those 100 students in the class every year, there were a number of students that would be interested in going into, and perhaps even already have job offers at, law firms that would have nothing to do necessarily with New York practice. I’m talking about your patent and trademark people, for instance, or your tax people.
So I do think that there were a number of students back in those days that took New York practice because they felt that it would be helpful for the bar exam, even if it might not be all that helpful to them in the anticipated practice that would follow.
With a smaller core now of students in a smaller class, those students are more likely students who are taking the course because they have a true interest in the subject or plan to be practitioners, although you can’t rule out a circumstance where some people take the course because they’re simply looking for a late Monday afternoon course that fits the schedule. I don’t think I can represent to you, and I would never represent to you, that everybody taking the course is taking it for the reason of practicing as litigators after law school is over.
If I was in the position of being a hiring partner at a law firm that practices in the state courts, one thing that I…and I’ve had conversations with people about this…one thing that I would definitely look for, not just the grade point average and not just the writing skills, but I would want to look at what course offerings the student has taken. Because if a student has taken New York practice after the UBE came into effect, well, that tells me that that student probably is taking the law school opportunity very seriously, to take courses that will make him or her a better lawyer after graduation If that’s the attitude people have during law school, it tells me what the attitude would be once they’re out in private practice.
Graduating Lawyers Ready To Practice in New York
SD-K: What do you consider to be a practice-ready attorney, both in practice and coming before the bench. What should law schools strive to do to make and create practice-ready lawyers?
Justice Dillon: It’s not too much to expect law schools to produce practice-ready attorneys. They try to in various ways. Obviously, once someone gets out of law school, they’re not going to have the level of experience that someone will have five or 10 years later or beyond that. But when I or anybody teaches a New York specific course, such as New York practice and some others, I’d like to feel that those students, after they graduate, enter the profession with some level of familiarity with the subject matter that is greater than if they hadn’t taken my course at all. A student who, because of the course, and whatever familiarity has stuck with them, will know what they see, perhaps know what to do with it, and if they don’t know what to do with it, at least to know what questions to ask, so that they can then know what to do with it.
A practice-ready attorney, in my view, would be somebody who, after taking and passing the bar and being sworn in, is someone that a firm could give a file to, or a caseload of files, and know that that individual would be able to perform at least the rudimentary responsibilities of prosecuting a civil cause or a defense on behalf of a defendant. Now, that might be going into conferences with judges; that might be pleadings; that might be discovery demands and responses; it might be how to write a motion or an opposition to a motion; some familiarity with what a note of issue is; and issues with respect to that.
Of course, if that individual is in an environment where there are elders to whom they can turn to answer questions or to oversee and provide guidance, that’s perfect. But, there are some law firms out there, a lot of them that are mom-and-pop type law firms, where you don’t necessarily have the kind of support system for young lawyers that the bigger firms will have. Going back to what we were talking before about how, ultimately, it’s the client that we have to be concerned about, and who may be affected when lawyers make mistakes. The trial-ready lawyer will be less likely to make a mistake that will come back and hurt the client. That’s how I see it.
SD-K: Not every law student who graduates intends to litigate. Is there value in taking the CPLR course and being familiar with the court structure, and how to litigate cases? If you don’t prepare pleadings and court papers, and as you said, many attorneys just do real estate or tax, then is it necessary to know the process for working in the state court system?
Justice Dillon: Well, it depends, because there could be some crossover that you absorb. Maybe you’re not prosecuting personal injury cases, for instance, in a New York court, but if you have an exposure to motion practice, it doesn’t mean that the real estate lawyers aren’t going to be encountering that, or even the tax lawyers. Even people that make their living in federal court. The procedures might be a little different, but some of the rudimentary principles are the same.
SD-K: Is it possible that there is a prejudice or a differential in how law faculty see the difference between process and substance? When we’re talking about the CPLR and the process of law, such as motion practice and all of these other critical things, they’re procedural. The emphasis, and what we require most, in law schools, the foundational courses, they’re all doctrinal. So, is there some kind of prejudice against something that is more process oriented than substantive oriented? Is there that hierarchy?
Justice Dillon: You might be on to something there, because if you look at what the required courses are at most law schools, and these should be required courses, the courses are torts, contracts, real property, and so forth. Maybe federal rules of civil procedure is required at most schools, but that’s the only one that comes to mind now in our discussion of what is procedural in nature, and it has nothing to do, of course, with New York. So there might be some type of bias in the procedural versus the substantive.
In reality, when you’re out practicing, I always view the procedural as being of at least equal importance. It’s a threshold subject, because if the practitioner doesn’t know how to navigate the procedures to get the merits to a judge or a jury, then the client doesn’t get the merits determined. Even if it’s a losing case in the end, it’s one thing to lose a case on the merits as a result of a jury trial or a non-jury trial. It’s a worse thing to lose a case because the lawyer blew the statute of limitations, or didn’t oversee properly the service of process, or any other number of mistakes that we can point to.
An Increase in Basic Errors of New York Law
DRM: Justice Dillon, I wanted to follow up on the practice-ready lawyer concept. I’ve heard the argument made that expecting students to know a lot about New York law and testing them on their knowledge of New York law before they enter the profession is unfair because it holds them to the standard of a seasoned, experienced lawyer. When lawyers come before you, do you handle them differently, based on whether they’re new lawyers just appearing in the court, maybe for the first year or two or three of practice, compared to lawyers in their 30th year of practice?
Justice Dillon: Well, we really can’t. Speaking from the vantage point now of the Appellate Division where I spend most of my time reading briefs and records, and then sometimes, of course, taking oral argument with a panel on those same cases. When I see a brief or record that someone has prepared, I’m not necessarily going to know that lawyer personally or know that it’s a 26-year old versus a 66-year old.
At oral argument, if someone comes in and now you can visually see that it’s a young attorney, must be a young attorney, can’t have much experience. We can’t treat that lawyer any differently than somebody that’s a generation or two older. We have to hold everybody to the same standards and ultimately decide the cases based on what is correct under the facts and the law.
So, the younger lawyer or the less experienced lawyer does have to meet the more experienced lawyer on the more experienced lawyer’s terms in order to be effective.
DRM: Do you see in your courtroom the junior lawyers being shepherded through the appellate advocacy process by the senior appellate lawyers from the law firms?
Justice Dillon: Very rare. Very rarely do you have a situation where a case is called up and you have a senior lawyer and a junior lawyer, and the junior lawyer makes the argument with the senior lawyer present. That’s extremely, extremely rare. There are occasions when a couple of lawyers will come up. We only allow one individual to argue per party, of course, and when that occurs it’s almost always going to be the more senior lawyer or the lawyer that’s most familiar with the case.
DRM: From your observation pre-UBE and post-UBE, which, of course, also tracks the decline in students taking the New York practice course, is that having an impact on the nature of the cases that come up on appeal? Are the types of errors changing?
Justice Dillon: Speaking only for myself, I believe…and I can’t give you statistics…this is anecdotal on my part…but of the total number of appellate arguments that get made, the percentage of arguments that lack merit, I think, is greater now than it was when I started at the Appellate Division 20 years ago. When I say “lack merit,” I’m not talking about frivolous conduct and whether somebody should be sanctioned. But I’m talking about the case where you read the briefs, and it is clear that the appellant’s argument just won’t go anywhere, or the respondent’s argument just won’t go anywhere. It’s a little more egregious when you see it from the appellant, because the appellant is the one that is bringing the respondent into the court, perhaps avoidably. Sometimes decisions are made to perfect appeals that don’t have a strong enough basis to be perfected.
If we’re talking about mistakes being made by the lawyers at the trial level, there’s a difference between a mistake and a basic mistake. And it’s the basic mistakes that should not be getting made, at least, if the lawyer has a sufficient background in the procedures that are involved in the case. There are some basic things out there that we’re seeing over and over and over on appeal, such as a summary judgment motion where the moving papers or the opposition papers submit material where no effort is made to bring it in in admissible form, or burden of proof, or where a case is marked off and the lawyer does not know how to get the case back onto the calendar. Those types of very basic things.
I think there’s been an inflation in the number of instances where those types of mistakes that shouldn’t be getting made are being made, and I’m seeing them on appeal. Appeals sometimes might be brought because if a plaintiff’s attorney is the one that has made the mistake and the client might be out of court as a result of that mistake, the appeal becomes like a Hail Mary pass to see if the case can get reversed on appeal in order to avoid a legal malpractice. I can understand lawyers in that position undertaking an appeal with fingers crossed that maybe there can be a reversal that will save the day. But even that isn’t going to go anywhere for the plaintiff’s attorney, if the mistake is something which is a black-and-white issue, and where we have no discretion, and there’s nothing we can do but affirm what happened.
DRM: There’s an argument that’s been made about cases like that, that if they’re growing in number, there should be a growth in disciplinary proceedings in front of bar ethics committees based on these errors. Since the data doesn’t show that, the inference drawn by some is that there must not be any change in error rate. When you get errors like that …the clear errors…do you make a referral to the disciplinary committee?
Justice Dillon: No. On rare occasions, if we feel an argument is made that’s frivolous, we have imposed monetary sanctions. That’s fortunately very rare. Sometimes we see in our attorney-grievance process a circumstance where a disciplinary complaint was already made of file neglect, for instance, and file neglect might be an issue that also crosses over into issues on appeal. But usually, it’s the grievance that might hit before we get to decide the appeal. So, I think that for something like file neglect, the grievance committees are probably ahead of the appellate divisions. But we don’t refer people if they make an egregious procedural error that hurts the client. No, that’s not something that we would typically consider grievable.
DRM: So there may not be the connection between disciplinary data and error data?
Justice Dillon: I don’t really think so. And a lot of our disciplinary work…the biggest one…subject matter, is escrow account mistakes. So that’s a different world than what we’re talking about here.
DRM: Without revealing any confidences, of course, is this a general concern among your colleagues on the bench?
Justice Dillon: I don’t speak for any particular trial-level or appellate colleague. But generally, I believe that if you were to poll other judges about whether or not we’re seeing more…a larger percentage of appeals that lack merit, some would agree with me. I’ve had conversations with people about that.
If you were to poll my colleagues about whether or not we’re seeing a lot of basic errors that should be avoidable. They probably would agree with me on my view on that as well. But again, this is not anything that can really be quantified by a study. It’s subjective. I mean, how do you necessarily draw a bright line between a basic error versus an error? You know. It’s hard to answer.
One other thing. I think there’s a general consensus amongst judges and seasoned attorneys that not having New York specific subjects on the Bar Exam is contributing to a lesser knowledge on the part of the younger lawyers. That is not good for our court system.
SD-K: How do you measure that…that they have a lesser knowledge?
Justice Dillon: Well, I don’t know how you measure it other than drawing a syllogism that if you have a UBE go into effect several years ago where New York specific subjects now are no longer tested, and now you have people in the judiciary saying, “What are all these basic errors that are being made?” It’s not something that we can quantify objectively, but it’s an assumption or an inference that we’re able to make from the timing and the facts.
SD-K: What about in the areas that have unique New York law, like family law, domestic relations, trusts and estates, decedents estates, wills, and the general obligations law which are unique to New York. Do you see an increase in errors in those areas where they’re not learning any of the New York law?
Justice Dillon: Yeah. But you mentioned matrimonial law. It’s been my experience that in the matrimonial field, it’s a very tight circle of people. You either spend your time as a matrimonial lawyer and do nothing else, or you don’t do any matrimonial law, and you usually stay within one county. I’m not seeing, in terms of what the substantive law of matrimonials is, any difference between what lawyers are doing now and what they used to be doing in the past. But that could be a factor of, you know, being in dedicated matrimonial firms.
I think that the real issue going forward from here is whether, in addition to NextGen, what type of New York law specific exam we’re going to have? Whether or not the current NYLE is considered adequate. I’ve reviewed the questions…the 50-question test…and I’ve reviewed them from time to time over the years, and I’ve never been satisfied with that exam because the level of difficulty…I think reasonably intelligent high schoolers with good test-taking skills could probably pass that exam. My criticism of it is that you don’t necessarily need a law degree in order to be able to answer many of those questions to be able to pass, but good test-taking skills.
If the New York Law Exam were to be beefed up in a way that would further incentivize students in school to take these New York specific courses, and again, I’m not limiting it to New York practice, then I think that might be the way to go.
The Bar Exam’s Role in Protecting Clients and Improving Justice in New York
DRM: Justice Dillon, an audience member has asked whether you have thought about what specifically you’d like to see changed in the New York Law Exam in the New York Law Course?
Justice Dillon: Yes, I think qualitatively and quantitatively, there should be a bulking up of that exam. The difficulty level is too low right now, and should be raised. And 50 multiple choice questions which aren’t really inconvenient to do, because nowadays, with laptops, you do it from your home or from your office, and we could certainly ask more questions than 50 multiple choice. In California, I don’t know if this is still true, but for years and years and years, decades, in fact, California always had a 3-day bar exam. I’m not suggesting that we have a formal 3-day bar exam. But there’s certainly headroom, I think the NextGen exam is only a day and a half, so there’s certainly headroom for us to have a New York specific exam, separate from NextGen, done on a different day, different week, different month, that simply is a more serious exam than what we have now.
DRM: Another question from the audience is: What do you think the New York State Bar Association, or perhaps the other bar associations, can do to improve the situation of students, so that they come out of law school more practice ready?
Justice Dillon: As a practical matter, it’s the Court of Appeals that had these decisions to make. Whatever friendly lobbying needs to be done, I think, has to be directed in that way.
DRM: An audience member asked, “How do we feel about expanding the postgraduate CLE requirements to guide the early years of real-life practice in New York and expand the opportunities for more structured mentoring? This focused programming could be quite helpful.”
Justice Dillon: I’m not sure. Currently the CLE requirement structure is that if you’re a new lawyer, during the first two years, you do have a higher 32-credit requirement in terms of the number of hours that you have to satisfy.
But CLEs only go so far because, you know it’s an hour or two here, maybe three. You’re in. You’re out. CLEs tend to be updates and higher level, not necessarily focused on the basics. And one would hope that you’re taking the CLEs that will have practical use to what you do. The CLEs right now are structured where you need a certain number of hours in this area, a certain number of hours in that area, a certain number of hours in another area, so that will, by definition, water down how much you can spend on something like procedure, if that’s what you want to bulk up in terms of your ability, or other areas that you want to bulk up on.
So I don’t think CLEs are the answer.
Domenick Napoletano, NYSBA President: First and foremost, Judge, I want to thank you sincerely for having taken the time to be with us this evening. I think your insight is right on the money. I truly hope and I pray that whatever is going to happen that we have at least the bare minimum of a half a day test of New York practice.
Justice Dillon: Well, if you can work some magic and have that happen, that would be great. The law professors…nothing against the law professors and nothing against the people that work for the bar review courses…but they’re not the ones that are in the trenches. People like you are in the trenches, and it always has to go back to how it impacts on the client. And I think that’s what’s being lost in the discussion. How it impacts upon the client.
Basic attorney errors, when made, impact their clients sometimes quite significantly, and oftentimes in ways that courts have no discretion to overlook. This is why New York State and its law schools should feel a heightened responsibility in having New York law taught in a more meaningful way, as in times past, because of the real impacts that affect real people when mistakes are made by law graduates. I believe that a rough seesaw exists where a lower number of students taking various courses in New York law results in a higher rate of avoidable basic attorney errors that show up at the trial level and appellate court level to the detriment of clients and justice.
Kathleen Sweet, NYSBA President-Elect: I just want to echo the thank you. We really appreciate your time tonight.
