The Performance Tests (PTs) are like a scary haunted house. It’s frightening at first, but once you suck up the courage and go in, you come out the other side with candy and a fun, ‘that-wasn’t-so-bad’ experience!
Did I say fun and PT’s in the same sentence? Maybe that’s pushing it, but the PT’s are not too bad once you dig into them.
I vividly remember sitting down to take my first performance test. I promised myself I would finish, and I didn’t even last 15 minutes. The thing was so weird and confusing!
Ahh, but once I saw the sample answer and took a couple more PT’s, my PT confidence was running higher than Wolverine fighting against Sabretooth, for his lady love, Jean Gray (I know you love the analogy!).
Here’s an in depth analysis on how to slice and dice the PT so you never see it again. And just to warn you, this post is long but it is VERY thorough. I’m digging deep into the PT’s. Stick with me and you’ll come out the other side knocking this section down.
I will be explaining my own personalized version of the PT method I learned in barbri. I will be frequently referencing the Feb 2010 Day 1 Performance Test. Please click if you want to follow along. This was the PT I took during my bar exam.
Understand Thy Opponent
Let’s understand what the heck is in a darn PT first. There exists three components:
a) Instruction Sheet (containing directions)
b) Task Memo (containing Statutes and Facts)
c) Library (containing legal authority)
PART 1: Instruction Sheet
Why it’s important:
Truthfully, this is not that important. Read it once during practice and you’re probably good to go. However, I do want to point out three things about this:
1) “File and Library” vs. “File”
When it comes to bar exam day, you only need to look at one thing on the Instruction sheet.
Look on Page 4, Section 3, and see the words “File and Library.” Most PT’s will have a library in them. Every so often, however, there is only a file, no library. So if you see that your PT doesn’t have a library, don’t automatically assume the bar examiners hate you and purposefully left it out so you would fail. First, check this statement to make sure they said, “File and Library,” not just “File.” This won’t be an issue 99% of the time.
2) 90 minutes to outline
Although Sections 1 – 6 are pretty self explanatory, Section 7 may be eye-popping.
Section 7 is important because it tells you to spend 90 minutes outlining your PT! 90 minutes! They want you to spend half your time outlining. I know some of you don’t even spend a third of your time outlining your bar exam essay, and now half the time for the PT?
Well, guess what? Spending about 1/2 your time outlining a PT is a good idea! Barbri recommends it and after my bar exam experience, so do I. Ok, so why 90 minutes outlining? Carry on.
3) Your grade is based on compliance with instructions… and organization
That takes us to Section 8. Take a look at the statement, “Your response will be graded on its compliance with instructions and on its content, thoroughness, and organization.”
The first and most important thing they tell you is to Follow the Instructions!
“Duh!” you yell back at me. “I already know that.” You would be shocked how many people fail PT’s because they don’t follow the instructions or don’t know what the instructions mean. More on this later.
You will also be graded on content and thoroughness, which is a given.
Section 8 also tells you to be Organized! Your PT grade lives and dies on organization, even more-so than the essays. The graders are very explicit about it by telling you here.
Ok good, let’s move on.
PART 2: TASK MEMO (Memorandum)
1) Why it’s important:
Learn the tone of your paper.
a) Writing a Persuasive or Objective Memo?
This is where the ‘compliance with instructions’ first comes in.
First, figure out what kind of tone you are supposed to write. You will be required to either write 1) Persuasively or 2) Objectively. How do you know which? The Memorandum will tell you, very explicitly. The bar examiners want you to get this right. They want you to pass, and do their best to make this clean and clear as the sky.
Note our PT (Page 5, Paragraph 4), reads, “…the ENE opinion must persuade the parties…” Bingo! That means our memo must be a persuasive memo. The tone MUST be persuasive. If you write objectively, you’re begging the grader to drop your grade significantly. Yes, it’s that important.
If they wanted you to write an objective memo, they will use the word ‘objective.’ In an objective memo, your tone must be neutral. In both a persuasive and objective memo, you will need to discuss opposing facts and law; however, the tone will obviously be different.
So be sure to get the tone right. This might seem minor, but it does make a lot of sense. As an attorney, you’ll have to be good at taking directions and understanding the needs of your boss and clients. The graders want to make sure you know how to follow directions (remember, ‘compliance with directions’ was the first thing they said that you would be graded on).
Note, they even spent another entire sentence to tell you not to write objectively by stating, “on the one hand this and on the other hand that,” is not the way to go. Get this right and you’ll be ahead of a lot of people.
Ok good, so now we know how we’re supposed to write, let’s see what we’re supposed to write.
PART 3: Statutes
The next section is the Galena County Rules of Court. Most PT’s should have a similar page.
This page is Golden! It provides big points for ‘compliance with instructions,’ if you read it. But most of this page is also irrelevant. It’s the bar examiners trying to make the page all professional looking.
There are three sections of code (5-1, 5-2, and 5-3). Which sections do you think matter for our exam?
— insert Jeopardy music here —
I’ll give you hint. Go back and look at the Task Memo (Memorandum).
— more Jeopardy music —
The memorandum specifically says, “pursuant to ENE Rule 5-2 (c), I should provide them with a written opinion on the enforceability of the waiver.” Booya! No matter what, we had better be reading what Rule 5-2 (c) has to say. And as if the bar examiners didn’t love you enough, in the Task Memo, they explicitly put it again, “Please prepare my opinion for the parties consistent with ENE Rule 5-2(c).” See, I told you they want you to pass!
Ok good, so we know to use Rule 5-2(c), but let’s look at the other rules just in case.
Relevancy of other Rules?
5-1 is pretty useless. It’s just describes what proceedings we are going through with the opposing party. It’s irrelevant.
5-2 (a) discusses what should be done ten days before, in preparation for the ENE session. Well, your boss already had the ENE sessions, so that rule is useless too.
5-2 (b) discusses the rules of the actual ENE session. Again, you don’t even come into the picture until after the ENE session, so blah blah.
5-2(c) is our money ball as discussed earlier. We know that, let’s mark it and come back to it.
5-2 (d) tells us, “the ENE session shall be informal.” Well, that is great, and I hope they brought chips and soda to the session. You might think the whole “Rules of Evidence shall not apply” might be important, but again it’s just talking about this imaginary session your boss already had with opposing counsel and the witnesses. Blah blah.
5-3 informs us not to tell anyone what you read in the Library section because it’s confidential. This is completely irrelevant to our exam as well.
Don’t worry, if you didn’t get all these other little nuances. Most of the time, if you just focus on the Rule they give you to follow, you’ll be ok.
What main rule says
Now, Rule 5-2(c). What does it say and how does that help us pass?
After reading it, you know what this looks like to me? Darn close to something I KNOW you are familiar with…
5-2(c)(2) is telling you to “state the legal and factual issues”…. ie. Issue (I)
5-2(c)(3) is telling you to “assess… the parties’ contentions”… ie. Rules & Analysis (R) & (A)
5-2 (c)(4) is telling you to “draw(s) a conclusion”… ie. Conclusion (C)
Ok, is that all that it meant? Yes, it is.
Now, back track to Rule 5-2(c)(1). This is something that might be new to you. It says to include a “statement of facts…”
Statement of Facts
That means you MUST include a statement of facts, in addition to your IRAC. This is pretty easy to do. A statement of facts is merely a ‘chronological statement of what relevant facts happened in the case.’ You’ll basically go through the case, find the relevant facts, and write them in chronological order.
The facts should be in chronological order and only include what is relevant, meaning only the facts the legal issues turn on. I recommend you do this AFTER you have written everything else. By then, you’ll know what facts are relevant and what are not.
I emphasize MUST because the examiners told you to do it. In fact, you want to put a big, fat, bold statement, “STATEMENT OF FACTS” near the beginning of your answer so you let the grader know, “Hey, see I’m ‘complying with instructions.'”
You will not always be required to include a statement of facts. Some PT’s require it and some don’t. That’s why you will need to read the MEMO and find out what’s up.
Ok, good, getting bored yet? Still reading? Good, because RIGHT NOW IS THE MOST IMPORTANT PART!
Our Outline is Given to Us
Plaintiff’s Early Neutral Evaluation Statement
The bar exam graders are so nice to you, in the next section they TELL YOU what they want you to write about. All your PT’s will have a similar statement.
Read the Legal and Factual issues. Yes, we saw these exact words, “Legal and Factual” before in Rule 5-2(c)(2), ie. Issue. So now the graders are going to do you a HUGE favor. They’re going to tell you how to structure your answer and what headings you should use.
And the graders will make it as clear as daylight. They even number it for you. You see it?
“The waiver is not valid or enforceable on several grounds:
1) The validity and scope of the waiver are legally deficient.
2) Waivers are void as to hazardous activities.
3) Mr. Ochoa’s signature because he could not and did not understand the document. Defendant was aware that Mr. Ochoa could not read English when he signed the waiver.”
You might as well take this grouping and copy and paste it word for word into your exam answer because you now have your outline and your issue headings. Don’t believe me? Scroll down and look at both model answers. That’s almost exactly what they did.
I don’t advocate comparing your answer to model answers (model answers are insanely good and scored way above a passing 65), but just take a look so you see how easy it is to structure your exam like a model answer.
Side note, there is no need to get cute or creative and change the wording of the headings. Plagiarism is good on the bar exam. Copy what the bar examiners gave you, they like that.
So now we have our issues and our basic structure.
This is the launching pad of your PT. It’s like shooting a spaceship to the moon. Get the launch coordinates right, and you’ll have a nice, soft landing.
And guess what, if you made it this far, you are WAAAYYY ahead! You have clearly demonstrated to the graders you can ‘comply with instructions’ and you have created a solid organization and structure. Believe it or not, a lot of people don’t even get to here. If you make it here, you’re over halfway there to having a passing exam answer! I know, right?!
Alright let’s continue slicing and dicing and knock this thing out of the park!
PART 4: FACTS
The next set of documents include 1) Columbia Mountain Heli-Ski waiver, 2) Coroner’s Report, and 3) Notes from the ENE session.
Each PT will label these documents differently, of course, but their purpose will all be the same – it’s loaded with facts! I mean loaded! This is good and is what you want.
Essay Facts vs. PT Facts
So, let’s distinguish the PT facts from the bar exam essay facts. In a bar exam essay fact pattern, every single fact has some sort of relevance! Every word was picked for a reason.
In a PT, there are lots of useless facts! It will be up to you to determine what is useful and what is useless. That’s when your last three years of law school come in.
However, getting every single useful fact into your exam answer is NOT important. Yes, you do want to use as much as you can, but you want your essay to be coherent. Don’t sweat too much about making sure you get all the facts. The graders don’t really care. They care about 1) Compliance with instructions, 2) Good organization, 3) and Lawyerly writing. So get all the major facts in there, but you won’t need to include little intricate details. They’re only going to spend a few minutes reading your answer, and they want to get on with their lives as much as you do. Don’t bore them!
Believe it or not, the bulk of your work was already accomplished by 1) figuring out whether to write persuasively or objectively and 2) writing your issues as your headings.
You can do one of three things with the facts:
1) Read them thoroughly and parse them out now,
2) Skip over them and read the Library to see the law first, then come back and read the facts,
3) Breeze through them now and come back later after you have looked at the law in the Library.
I recommend Option 3.
Option 1 is no good because you can’t parse the relevant facts without knowing the relevant law.
Option 2 is ok, but I would feel a little blind going into the Library without having at least looked at the facts.
Option 3 is my favorite because I get a brief look at the facts, read the law, and then come back. Option 3 obviously will take the longest, but the PT is 3 hours long, and you have enough time. Practice different ways and see what you like best. Plenty of people successfully use Option 2 as well.
When you do look at the facts, you’ll go through and find what’s relevant or not. You’ll get a lot of relevant facts, and you’ll miss a lot too mostly because you don’t have time and some are just really detailed.
Organization and Readability are More Important than Facts
That’s ok, no one gives a whoopty doopty. The grader doesn’t expect you to get every single relevant fact. Nor do they want you too if it will make your exam answer too long or unreadable. They want a solid, concise, organized answer they can read and check off as passing, not an essay with too many duplicate facts that rambles on.
The Memo gave us our issues, the three documents gave us our Statement of facts. Now, the Library will give us our rules!
On to the Library!
PART 5: LIBRARY
Remember in law school where you had to intricately read and analyze cases so you could answer all the side questions and hypos the professor was going to ask you in class? Well, good news because reading the library cases won’t be nearly as intensive as what you did in law school! Not even close. Let’s see why.
In the Library, we have 3 cases. There will almost always be cases. Sometimes there will also be statutory codes.
1) No matter what, make sure you ALWAYS ALWAYS ALWAYS use the case authority in your answer.
The bar exam writers put these cases in for a reason, and not acknowledging their hard work by talking about a case in your answer is analagous to not bringing a present to a friend’s birthday dinner at her house. It’s rude, and you might get kicked out! Even if the case is against you, use it, and distinguish it based on facts or another superseding case which should be given more weight.
2) Pay attention to the Year of the case and Court the case was heard
As you know, cases in the Supreme Court will be more binding than cases in appellate courts. Cases more recently decided will supersede earlier cases. These are minor details, but nevertheless good to mention in your answer, if you come across conflicting rules and decisions.
3) If a rule or statutory code section is named or numbered, or if certain factors are repeated more than once in the same case or amongst cases, they are important and should be included in your answer!
So any code section or any kind of factor or word that is repeated either in a case or amongst cases, we should use. The bar examiners want to make things as obvious as possible, so they will repeat things to signal to you it’s important.
Let’s read the cases
The first case is Randas. Two paragraphs in I see a heading numbered ‘1’, Civil Section code 1668, and a quoted definition of Civil Code 1668. Not only that, we saw this Section code mentioned earlier in the Memo on page 10!
These are dead giveaways that the bar exam graders think this section and the quoted definition is important. So, put the words, “Civil Section 1668” and the quoted definition in your answer under one of the appropriate three headings in our outline. For now, just mark it.
Next paragraph down, I see the words quoted, “the public interest,” followed by a Supreme Court definition of the term! Holy yes! This better go in our answer too as another rule. The footer to the rule is long, boring, and doesn’t include any cool things like definitions or factors, so the footer is useless.
Then I see a few examples of the differences between public interest activities and recreational activities, with the words ‘essential’ quoted. Wow, when was the last time you saw all this stuff ‘quoted’ in real cases? Clearly the bar exam graders like you and are trying to point to you what’s important.
So, we had better be using the words ‘the public interest’ and ‘essential’ in our answers to show the graders how much we appreciate them giving us keys to the PT castle.
Further, I see ‘death-defying.’ Also ‘dangerous’ appears to be important because Tunkl didn’t include it in its factors. Then we get to part 2 of the case.
Where to Put these Rules?
But before we go on, if we had to put all these rules and factors we just found into our essay, where the heck would we put them? Let’s go back to our outline:
“The waiver is not valid or enforceable on several grounds:
1) The validity and scope of the waiver are legally deficient.
2) Waivers are void as to hazardous activities.
3) Mr. Ochoa’s signature because he could not and did not understand the document.”
These rules we found have to go under one of these subheadings, otherwise where else would we put them? The rule we found probably doesn’t apply to Section 1 and clearly doesn’t apply to Section 3. They seem to very explicitly point to Section 2. So, in our outline, let’s mention this rule, key words, and definitions under Section 2. Later, we will go back to the three documents of facts and see what we can pull from the facts that apply to the hazardous activities rules we just pulled.
Ok good, now part 2 of the case: “The release is clear and ambiguous.” Hmmmm, this is probably going to apply to Section 1 of our outline, but let’s keep reading.
Bam, first paragraph is a specific rule! The next paragraph gives specific examples of the rules applicability. Not only that, it mentions components of an actual waiver. Guess what? We have an actual waiver in our fact statement! So bam, a rule we can copy and paste and then we have a waiver we can analogize for the factual analysis.
Part 3 of the case will go straight to Section 3 of our answer.
“The release is not invalid…” Really court? ‘not invalid’? I’m glad we were taught not to use double negatives as kids. It paid off now that we’re in the legal field. Ok, sorry back to the case.
Note the words in the next paragraph, ‘well established,’ ‘in the absence of fraud.’ ‘Well established’ indicates something you can probably use. ‘In the absence of fraud’ is good to note too because these are legal words, so they’re probably important. If we see them again in future cases, they’ll definitely be important, and we’ll have to use them.
Bam, we’re done with case 1 and we could write our whole PT right now if we wanted!
Ahh, but we must bring a present to the bar examiner party. Ok, next case.
On to the Allan case!
The first two pages of Allan , we hardly care a whoopty doopty about. It is just rambling. The Library is for us to find rules, and factors, not a bunch of blah blah facts.
If you ever reference a fact in a case to analogize to your own fact pattern, it should be very brief. Remember, the graders want you to be brief and most your points are in good organization, structure, using the rules in the cases, and using the main facts from your factual documents.
At the bottom of page 28, we find what we need: “…it is well established, in the absence of fraud…” Hey we just saw that! Mark it, circle it, write it. That is a rule now and we need to use it for certain. And then bam, a golden rule which favors our client, “the principle has been extended…illiterate.” Solid, and a quick look at our outline will tell us this is to be discussed under Section 3: Mr. Ochoa’s understanding of the document.
Blah blah a bunch more facts. You could use the statement, “The fraud or misrepresentation must be as to the contents of the waiver.” It’s not essential, but would be good to use.
Then the words, ‘general principle’ on page 29 show up. This should flag my attention, especially since a case authority follows it, indicating an important rule. Then some more facts and potential rules, but I say potential because it’s our first time seeing them, so they only might be important to include.
Ok, 3rd case. This is blah blah until second paragraph of page 32. We have seen these words, ‘unambiguous.’ Now that we’ve seen it more than once, include it in your essay. Blah blah, then those words again, “…it is well established, in the absence of fraud…” Ok, 3 cases this was mentioned! You better believe the graders will be hunting your answer for this statement.
Then a bunch more blah blah.
Ok, we now have rules to cover all three issues. They’re a little sloppy and unorganized, but if you make a good outline, you can at least reference where the rules are in the library and go back when you are writing up your answer.
What if there were a Separate Statutory page?
A lot of PT’s will have statutes. In fact, this PT technically had a statute. It was placed in the beginning of the first case. If you have PT with a separate Statute page, the same rules apply. Look for which statutory codes are mentioned in the cases, and you’ll know exactly what to apply.
Back to the Facts
Now, we need to go through the factual statements, look at relevant facts, and ask ourselves where should this fact go?
Don’t spend too much time doing this. Believe it or not, your work is already pretty much done. You have your issues, the cases named and the rules you will be using. If you plug those into your answer, you’ll be more solid than the Great Wall of China. Of course, you haven’t passed yet, because you still need to put the facts to the rules and type up your answer, but you’re well on your way.
How to go through the facts
Ok, so look at the facts. There are a ton of facts, so don’t use the ‘why why why’ test on each fact. That will take forever. Just breeze through them, find the most important facts that go both for and against your case and write about it.
And don’t forget to go back and put your Statement of Facts in the beginning so you will be ‘complying with instructions.’
Alright, we’re done! These tips should take that Sabretooth looking Performance test and make it look like a kitty cat to you now. Now, you’ve got the insider tips, make sure to Practice, Practice, Practice! You’ll only get it through practice.
Although, most of the PT’s will have a similar structure, the bar examiners are known for throwing in ‘odd-ball’ PT’s occasionally. These might be ‘Fact Gathering’ PT’s or other weird-looking PT’s. Remember, the basic structure should still be the same as the example I did above. There will be headings that should be given. There should be good structure and organization. Look for words that repeat and put them under appropriate headings. Take a look at some of these off-colored PT’s so you know what the answer looks like. These things looks more complicated than they really are.
*Please note this post is based on California Performance tests. Tests in other states may be different.
Good luck on your bar exam prep!
“This name appears on the pass list.”