Thursday, April 25, 2002 | 9:06 a.m.
After two years of battling the very system he wanted to join, Jason Cook finally won the only case that mattered to him -- his fight to be admitted as a member of the State Bar of Nevada.
When Cook received the results of his 2000 bar exam, he found he had done well on the essay portion of the test. But his score on the multiple choice portion of the exam caused him to fail by a narrow margin. His total score was just five-hundredths of a point short of passing.
"Imagine anyone getting their bar results. You're going to be devastated if it's that close," Cook said.
That thin margin threatened to keep Cook out of his chosen profession. But Cook decided to petition the Nevada Supreme Court, taking issue with the way bar examiners calculate the test scores. Cook eventually won his case -- and in the process, Cook says, he exposed potential flaws in the bar exam's scoring system.
Cook, 32, began his fight simply enough. He researched the examination rules like any would-be lawyer might. He found his exam was eligible to be regraded because of his close call -- he scored 74.952 on a test that required a 75 to pass.
But the second time his exam was scored, the result was even more disappointing for Cook. Cook's score on the multiple choice section was high enough to pass -- but his essay scores were significantly lower than they were the first time.
Of the nine essay questions that were regraded, six received lower scores. Two remained the same and one was higher than the first grading.
The two sets of scores illustrated the flaws in the scoring system, Cook said.
"If scores are based on a consistent grading system, how would it be possible for the results on those essay questions to swing so widely from the first scores?" Cook said.
Rick Trachok, chairman of the Nevada Board of Bar Examiners, said the board has yet to devise a perfect system.
"You show me the perfect test and we'll adopt it," Trachok said. "But we go through a Herculean task of trying to be fair. Our whole mission in life is to protect the public from unqualified practitioners."
But Cook said his exam problems were tied to a unique situation that the Nevada Board of Bar Examiners faced that year. In 2000, the board changed the method of determining the test's pass/fail score and told students who were preparing for the bar that a heavier emphasis would be placed on the essay portion of the exam.
Students who took the exam that year were originally judged according to that new scoring system. But board examiners quickly found out that more people were failing than ever. In Sept. 2000, the Nevada Supreme Court ordered that the new scoring method be thrown out in favor of the old one.
Cook argued that those events affected his final score.
Even though the court promised to regrade "certain applicants" after reinstituting the old formula, Cook's petition maintained there was no promise to regrade "all of the examinations," including his.
Cook also said that to his detriment, he had counted on the new test being heavily weighted toward the essay portion.
"When I found out that there was more emphasis on the essay portion, I concentrated my studies on the essays," Cook said. "If there would have been more of an emphasis on the multiple choice I would have concentrated on that."
Trachok said in an interview last November that tests with any potential for scoring errors were automatically regraded.
There was another issue as well, according to Cook's petition: The test scores were carried out two decimal places and not rounded up. So, for example, if 75 was needed to pass, a score of 74.55 would be considered a failing grade.
That method of grading was not disclosed by the board, Cook's petition said.
Trachok said that method of scoring has been used by the state for more than 10 years. The state's formula was created by a Rand think tank specialist trained in the development of standardized psychological tests, he said.
Examples of calculating bar exam results, however, commonly use whole numbers. Even the National Conference of Bar Examiners, the entity that oversees the multiple choice portion of the exam, scores in whole numbers.
"More states than not use the whole number score," Erica Moeser, president of the National Conference of Bar Examiners, said. "I think it's just a policy judgment on the part of the state."
In the end, Cook won his appeal with five of seven Supreme Court justices signing the order on March 8 to admit him as a member of the state bar. The court did not issue an opinion on its decision, so it's uncertain which of Cook's arguments carried the most weight.
The case is unusual enough, Cook's lawyer Tom Pitaro said, that it's unlikely to open the floodgates for others who might want to challenge their scores.
"His first battle in court was getting admitted and he did an outstanding job," Pitaro said. "But I don't think this will invite more cases like this."
During Cook's two-year paper battle, the 1997 Whittier Law School graduate was already working on one of the highest profile cases of the year -- the Jessica Williams trial. Williams was found guilty of driving with a prohibited substance in her blood after a March 2000 accident that killed six teenagers on Interstate 15.
Thanks to his work on that case, Cook won the respect of Judge Mark Gibbons, whom he clerks for.
"I think he'll be an outstanding lawyer," Gibbons said. "He's smart and he's very savvy and I think he'll make an excellent lawyer."
Trachok said that it is doubtful Cook's case will change the way the board calculates its exam scores -- but he noted the board begins talks Tuesday on designing this year's test, and the case might be considered to some degree.
"None of us, as hard as we try, are able to avoid a mistake sometimes," Trachok said. "It's only when things like this come up that we look at how we can make this test better. Are we going to meet and decide to round up to the whole number? Of course not."
Cook was sworn in on Friday and has received his license to practice law. He admitted the process was awkward.
"It's like the student going up against the teacher," he said. "I'm trying to learn from that authority, which is the bar exam."
Cook said he has a number of job offers.
"This is an absolute miracle that the Supreme Court is going to let me go along in my profession," Cook said. "Now I can call myself an attorney. My abilities as an attorney have been strengthened as a result of the ordeal." He's smart and he's very savvy and I think he'll make an excellent lawyer."
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