CA Bar 2009: Performance Test Tips

PERFORMANCE TEST TIPS 1

A. Parts of Performance
1. Library: contains the legal authorities needed to complete the task, including fictitious/real/modified cases.
a. Sometimes there is no library—instructions will tell you what’s to be included
b. Do not assume that seemingly familiar cases follow what happened in real life—read them anyway.
c. You can use abbreviations and omit page citations when citing from the library but use easily understandable
citations.
1) Cite to the cases or the statute (but no bluebooking or ALWD)
2) You can bring in your “general knowledge of the law” but the performance test is a closed universe prob
2. Client’s File: factual materials about your case incl a memo containing instructions for the tasks you need to complete
3. Task Memo
a. Will tell you the task
b. Will tell you the tone to perform it
c. Whatever order or method exam gives you, you should follow it
d. Note the number of topics that exam wants you to address
e. If memo indicates something that may or may not be of continuing validity, you must include it.
f. “Memorandum” on the bar: is a nonspecific format unless the exam specifies.
B. Skills Tested on the Performance Exam
1. Legal Analysis
a. Objective writing
b. Persuasive writing
2. Fact Gathering
3. Fact Analysis
a. Is not legal analysis
b. It’s where the law is given to you or agreed upon and you are only disputing the facts
c. Example: a closing argument/opening statement
4. Tactics/Problem Solving
a. Came up in Feb 2009
b. Was tested 8 years in a row
5. Ethical Considerations
a. Something w/ ethics is always tested
6. Communication
a. Organization of materials
b. Presentation of materials
c. Time management
d. Tone + Audience (ie, use layman’s terms when talking to a client)
7. NB: these areas can overlap and may or may not be neatly segregated on the exam
C. Outlining the answer
1. Skeleton outline first of the task memo:
a. Outline every question and sub-question as a heading in the skeleton outline
1) NB: for questions that ask you to do something “if you think it’s required” (ie, “redraft the proposed statute if
you think it is required. . .”  do the redraft in your answer!
b. Note every “and” and “or” indicating compound questions
c. Note the audience, law questions and fact questions
2. Substantive outline of Library and File
a. Cases
1) NB: if you don’t understand a case, don’t keep re-reading it, instead lift words into the headings and fake the
analysis as best you can, especially if a particularly word has been repeated several times—it’s a key word that
the exam is testing you on
2) Don’t brief them. Instead:
A) Highlight
B) Focus on: elements, big issues, repeated key words
C) Holding may or may not be important
D) Dicta may or may not be important
b. Statutes
1) If there’s lots of statutes, focus on the ones that are cited in the Task Memo
2) If a case mentions a statute that also appears in the Task Memo  use it!
3) If prob has 30-40 statutes, just pick out a few.
4) If prob has a couple of statutes, need to read them carefully
c. Substantive outline
1) Use quick cites and page numbers to turn the TOC for the Library and File into an index of major issues/facts
 CA Bar 2009: Performance Test Tips
2) In break, fill in Task Memo outline w/ the TOC notes but keep the Task Memo outline big picture otherwise it’ll
get too cluttered
d. Footnotes
1) Don’t ignore it, it can be helpful and is footnoted b/c of the cap on exam problem words
e. You should only wind up w/ 3-4 major issues + some minor issues
f. You should have a good enough outline so that you don’t have to keep referring to the materials when writing the
answer. This is a “superficial” exam.
D. Grading
1. Compliance to instructions
2. Content
3. Thoroughness
4. Organization
5. NB: prob may tell you the weighted grade breakdown—it matters most when the breakdowns are grossly uneven b/c
passing might turn on passing the larger part only
E. Barbri suggested approach:
1. First 85 mins:
a. Read the general directions
b. Read the task memo
c. Outline the task memo
d. Tear out the task memo (in CA, you’re allowed to tear it out)
e. Tear out and read the Instruction Sheet (if one is provided)
f. Read and outline the Library and File
1) Tip: Might want to read Library first to understand issues and elements, then read File
2) Practice both orders
3) You won’t have time to re-read both
g. Organization and headings are critical!
2. Take a 5-10 min break/review task memo/think organization
3. Write answer in 85-90 mins
F. If there’s a document instruction sheet:
1. Jurisidictional basis for the case
2. Statement of Facts
a. Must include all legally relevant facts, whether they make your client look good or bad
b. Couch the negative facts with some positive facts—make your client look good
c. You can introduce new facts into the argument but they must be secondary facts. If they are legally significant or
dispositive, they must be in the SoF
3. Questions presented
a. Once before, the exam asked you to include a section entitled “Questions Presented”
b. you must state the precise question or questions presented, as a combination of legally relevant facts + precise point
of law
4. Summary of Argument
a. Succinctly encapsulate the argument in your favor
b. Can be the declarative statement version of the questions presented.
5. Headings: should be a specific application of the law to the facts and not just a bare legal conclusion or factual
conclusion.
6. Argument
a. Analyze applicable legal authority and persuasively argue the facts and the law
b. Authority supportive of your position must be emphasized
c. You must cite and distinguish contrary authority/documents, not just contrary cases.
7. Do not do the sections out of order—you’ll forget to go back!!!
8. You don’t need to provide: a TOC, table of cases or index.
G. Logistics
1. If your computer crashes, the bar examiners can retrieve whatever was encrypted and saved thus they’ll just add it to
whatever you handwrite—so your handwritten answer should pick up where your typed answer left off.
2. Writers and computer-users tend to get similar grades
3. Do some handwritten practice questions in case laptop fails
4. Sometimes installing things after you’ve downloaded ExamSoft, it will uninstall ExamSoft so make sure it’s working.
5. Some exam formats require you to use columns—ExamSoft now lets you do columns; other people used paper for this
portion.
6. Skip lines b/t paragraphs so that distinct issues are separated out.
7. Use headings.
8. Writers have to use blue or black ink.
9. You can bring highlighters into exam.
CA Bar 2009: Performance Test Tips