The Italian Bar Exam

Alessandro Barzaghi, LL.M.*
abarzaghi@antonellicocuzza.it

When I passed the Italian Bar Exam in January 2001, I promised myself that I would write about it. Here it is five years later, and now I have finally found the time to share my experiences of taking the Italian Bar Exam.

This topic is very delicate because, as I would like to give my personal account, it may seem unusual for those on the outside, and at the same time I want to honor the Italian Bar Exam and the experiences of those who take it.

Before going forward, I should note that the bar exam has been recently reformed by a law enacted in 2003 (see “New Rules” below). Only two classes of graduates have taken the new exam in December 2004 and December 2005, any effects the New Rules may have are developing as this article is being written.

Many of the things that I experienced remain the same with the new system as well.

The Rules

To be admitted to the Italian Bar, one must take an exam. The exam is structured in two phases: written and oral.

The written section consists of two essays and pleadings to be turned in by candidates. Each day, supposedly at the same time, the president of the board of examiners of each district where the exam is taken (roughly twenty-two districts throughout the Country, see discussion below) dictates in a microphone to candidates, who write down hypothetical problems on the following topics: Day 1 - Civil Law; Day 2 - Criminal Law (in both instances two hypotheticals are given, each candidate chooses one and writes an essay on it); and Day 3 - either Civil Law, Criminal Law or Administrative Law (each candidate chooses either Civil, Criminal or Administrative and writes a motion in the style of those to be filed in court).

In this phase of the exam, candidates spend three consecutive days with eight hours allotted each day. This implies that once a candidate chooses the hypothetical (the choice itself may take approximately an hour), he or she then has the remaining seven hours to develop the papers. Candidates (often thousands per session) are usually all packed in the same room and the noise is so great that it may be difficult for a candidate to focus. There is no lunch break, but candidates may bring food and eat it throughout the examination. Coffee spilling on papers during the exam is not a rare occurrence.

The second phase consists of an oral examination. The board of examiners is composed of judges, practicing lawyers and law school faculty. When registering to take the written exam, candidates choose the five topics they wish to be orally tested on, options include: civil law and procedure, criminal law and procedure, corporate and commercial law, administrative law, international law, and, as obscure as it may seem, ecclesiastical law. All candidates must take legal ethics as part of the exam. The oral exam is usually 45 minutes to one and a half hours long. Luckily, the venue where the oral exam takes place is much more intimate (usually a courtroom) than the one used for the written portion. Although the examination is open to the public, it remains silent throughout the examination.

The written phase takes place once a year, in the later part of December. The results of the written portion are announced between six to ten months after the exam is given. The oral phase takes place in a six month time span after the written portion results are announced. This system is extremely slow and inefficient.

Candidates take the written exams first and then wait to see if they have done well enough to take the oral exam. When a candidate passes the writing portion, but fails the oral, she fails the whole exam and must take it – both the written and the oral part - all over again. Often a candidate who passes the writing section is forced to take this section again in the next year, just because she could not take the oral section yet.

A candidate may fail one of the three written tests, but grades in the passing papers must satisfy a certain total score. Results of the written exams are totally separate from results of the oral exams, and therefore even a very high written score may not outweigh a mediocre oral score. Usually, less than 20% of candidates who pass the written test fail the oral phase.

A Matter of Benue - the Southern Advantage

Each candidate takes both phases of the exam in the District of the Court of Appeal where she resides, provided that the candidate spent the last six months of her required two-year apprenticeship.

The place of residence of all Italians is recorded in a special register, called “anagrafe”, which is located at the City Hall of each Italian province and town. In the registry, which is now computerized, everybody is associated with a place of residence, which must be updated.

The domicile is so important, that a summons is considered officially served to a defendant for any purpose by the sole fact that an attempt has been made to serve it to the defendant’s officially recorded place of residence. If the defendant, for any reason, is not there to receive the summons, the summons is deposited with the City Hall, and the proceedings may start.

When I took the exam, it was considered much easier to pass the exam in the Districts of the Court of Appeal of the South than in the Districts of the Court of Appeal of the North. For instance, in 1999, Catanzaro, a city in the deep south of Italy, in the Region of Calabria, was by far the easiest location to take the exam, 92.4% of candidates were admitted to the orals while in Milan, which is located in the North, in Lombardia, only 42.9% passed. The national average of candidates admitted to the orals was around 50%. The situation seems to be the same today (see “New rules” below).

The skewed results show that candidates in the North were particularly ignorant, or that candidates in the South were legal geniuses. However, I believe, that the results have more to do with the grading of the exams.

To take advantage of this disparity, many candidates used to move their place of residence and ask complaisant lawyers in Southern Italy to serve the last six months of their apprenticeship there, so that they would be admitted to sit for the exam in those “easier” Districts, therefore increasing their chances of passing the exam.

For the apprenticeship period to count for the bar exam, it is not necessary to spend every day of the period in the offices located in the South. Usually, a few days a month is enough for this purpose. Because apprenticeships are based, among other factors, on the number of hearings which the lawyer-to-be attends, usually such hearings are concentrated on Mondays or Fridays, which allows the apprentice to travel back North and work at their “real” law firm most of the days of the apprenticeship.

For the above-mentioned system to work, senior lawyers need to be complaisant with this system: and many, in fact, are, and took an array of young individuals under their protective wing. Many senior lawyers supposedly found places to stay for the trainees who decided to use this system to raise their chances to pass the exam. Such customs also have financial advantages for senior lawyers who agreed to: having so many young lawyers traveling south supports a thriving business.

Everybody knew about this and some Districts of the Court of Appeals changed the rule so that the apprenticeships in the South were to be a year long, but this actually did not discourage people from traveling southward to take advantage of the system.

“All-included” organizations were formed which provided, against payment of quite a conspicuous sum, Southern law firm for the apprenticeship, a place to stay and provide even the bus service to the Court during the days of the exam. This crazy system contributed to the weak economies of the regions of Southern Italy, which are poorer than the ones in the North. In the past century, and also today, the Northern part of Italy is much richer, while the South has much less industry and instead supports it mainly with tourism. This particular type of “legal” tourism was treasured in the South.

The Days of the Exam are Here!

I sat for my bar exam in Milan with 4,500 other candidates.

Half of the candidates generally work in banks and are not likely to practice law in their careers, but they take the test to provide more career options. Their two years of apprenticeship has mostly been done “on paper,” at a complaisant friend’s law firm. This friend certifies at the local Bar organization that the apprentice did work at its firm.

Waiting in line, all sorts of nonsense is heard, including candidate’s confusion on basic legal concepts, stories of candidates who wrote perfect essays, and, inexplicably, failed.

During the three day written portion of the exam, I picked up my friend early in the morning. We left towards Assago Milanofiori, a huge arena in Milan, where concerts and basketball games usually take place. We arrived at 7:00 a.m., an hour before the doors were supposed to open.

It felt like a crowd waiting for the gates to open into a rock concert.

The Italian Bar exam is open book in the sense that codes with jurisprudence are allowed in the room, i.e. civil code, criminal code and civil and criminal procedures codes annotated with most relevant cases, but not hornbooks or other texts. Although our system is not based on judge-made law or common law, cases are very useful to explain rules and apply it to the presented hypotheticals, and therefore give valuable leads for finding solutions to the essays.

One candidate was foolishly brought in more books than he could carry.

I thought I overdid it by bringing in codes of three different editions, fearing that maybe what was annotated in one was not in the other. A more reasonable friend just picked one edition and stuck to it which, in retrospect, seemed to make sense.

I remember a man, in a very elegant Loden coat, who did not limit himself to carrying the codes as other candidates did, but brought a series of metal shelves with wheels, on which was trembling unsteadily a full encyclopedia of the laws, featuring case law, and therefore, in theory, permitted. Clearly, he was being provocative and I am not sure the staff allowed him in with all such books, but that showed the limits of having a rule that permits some books and not others.

During the examination, examiners inspect whether the books candidates brought in are permissible. Considering that the Board of Examiners in each district for written exams is composed only of 10-12 members, it is very unlikely that they will be able to inspect much of what is carried in.

Where is the limit set? Would it not make more sense to let people bring in exclusively the bare codes, without any annotation whatsoever? I personally believe that this would level the playing field.

Board of Examiners

I attended a special school to prepare myself for the bar exam, much in the style of the Bar Bri review course, except that it was less intensive but lasted longer. These schools, which can be quite expensive, are becoming more popular in Italy: focusing on preparing people to pass the bar exam.

One of our teachers, an excellent judge from Milano who taught criminal law, used to admonish us with the following adage: “Few words expressing few clear ideas will open the doors of the bar exam to you and win you the benevolence of the examiners” and used to say that good handwriting is at least half of a passing score. The exam, in fact, cannot be taken on computers (which are not allowed in the room) and must still be, old-style, handwritten. His advice was great because of how examiners are selected.

Each board is composed of a number of judges, law school faculty and practicing attorneys, who are requested to serve. Usually, a board is composed of 8 members. They are not quick enough to find a good excuse not to serve. They are paid very little money and therefore hate what they are doing and try to grade the essays in the shortest possible time.

Usually, the whole board does not grade all of the essays, as it should be according to the law, but by single examiners, who divide essays among themselves by subject matter. Therefore, a judge who specializes in criminal law, grades criminal law essays, a practitioner expert in civil law grades civil law essays and so on.

An example will clarify the matter: Let’s say each board must evaluate the essays of 400 candidates, a likely number all things considered. Each candidate turns in three papers amounting to 1,200 papers that need to be graded.

Now, can you imagine how long it would take if the commission stuck to the rules and graded all those essays as a body. Considering the length of the papers, which are usually four to six pages long, and, being realistic, assuming two minutes for each page, that would add up to 12,000 minutes, i.e. 200 hours, i.e. 40 days at five hours a day. Now, that is much more time than each professional wants to allot for this painful task.

Generally, a practicing lawyer or a judge is willing to contribute no more than 8 afternoons (4 hours afternoons) total to the task. That’s less than 1/6 of the time, which would be required to correct all those essays.

Therefore, what do examiners do? They divide the work among themselves.

In the above example, each examiner will take 150 papers (which is quite a number anyway), and correct them by himself.

Now, 150 elaborates is quite an impressive number anyway and what frequently happens is that commissioners have very subjective views on the solutions. This leads to the paradoxical situation that different examiners might give different solutions to the same hypothetical. This is often unacceptable and risky.

Examiners are suspected to skim through the essays, and not really read them. This gives an extraordinary importance to legible handwriting and clarity of concepts.

This brings us back to what my professor used to say: two or three key concepts, well organized and clearly written, in a legible handwriting, are what it takes for such absent-minded examiners. An overcrowding of concepts would confuse examiners, and is likely to cause examiners to think that the candidate was either deceived or confused. A paper written in a bad handwriting is often simply discharged by the examiner, who is less likely to give a favorable grade to an essay he cannot read easily. This leads, then, in turn, to essays which tend to oversimplify matters, much in the style of first-graders instead of lawyers-to-be.

In the end, it isn’t dissimilar to what happens with the bar examination for any state in the United States, where candidates are suggested to make use of some key words in their essays, because examiners do not really read through the whole essay but just look for those words.

New Rules

After this, sometimes tragic, sometimes comical account, one would hope that the system was drastically changed. Not at all: the most sensible change that the law enacted in 2003 brought to the current rules, for the sake of discouraging candidates traveling to the South of Italy, is that board of examiners for each District of Court of Appeal are now drawn differently each time.

For instance, papers written in Milan are going to be graded by the Board of Examiners in Catanzaro, in Southern Italy and vice-versa. With the result that papers graded in the South will pass with sensationally high percentages, while those graded in the North will fail with the same high percentages.

It’s the same as before, only a tad more fortuitous for those living in the North.

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* Alessandro Barzaghi, LL.M., 2003 at University of Pennsylvania Law School, practiced law in Italy for 5 years before coming to the U.S. Mr. Barzaghi specializes in corporate law and mergers & acquisitions. He has just completed a year with Pepper Hamilton LL.P. in Philadelphia as a foreign visiting attorney, before going back to his Italian firm in Milan, Antonelli Cocuzza & Associati (www.antonellicocuzza.it), a fast growing Italian law firm with a prominent international practice.