Performance Exams - Tips

I was asked to coach a friend on the PT's, which generally come easy to me.  A PT is no more than a scaled down version of legal research, case analysis, and legal opinion.  Prior to my first attempt at the bar exam, another friend convinced me to take a PT preparation course.  From this course, and from my own experience, I developed several techniques that assist me in approaching the PT.  Many, I find, approach the PT with dread.  Instead, try making the PT's a game.

So, here are my tips, for what it's worth -

First, skim the instructions and read the Memo to applicant.  Both will provide the tasks assigned to the PT.  Watch the weight (e.g. %) assigned to each task to ensure that you are providing the right emphasis to your analysis.  I place the Task Memo in the middle of my desk, in front of me, as a reminder concerning what to look for and write to.  Look at the instructions -- for example, if you are asked to write two separate memorandums, do so!

Secondly, know which side of the fence you are on - Defendant or Plaintiff.  Simple advice, I know, but sometimes, it's easy to lose this point.

I approach the Library first and then read the file, although I may skim the file to pick up a sense of the case before me.

In reading the library, I develop a brief outline by task, and refer to the issues, holdings, and rules of the case by page number.  I don't rely exclusively on my outline; it's simply a road map.  I will refer back to the actual rules and holdings by page number of the case.

Usually, within the first page of each case, the issue being decided is made apparent.  For instance, in PT B of Feb. 2002 (Adair), there were two tasks.  1) To write a memo on express assumption of the risk, and 2) to write a memo on implied assumption of the risk.  In reading the cases, these exact words were called out.  Thus, I wrote in the corner of the case, "A" or "B" to denote the memo that the case would support and note whether the case is "Good" or "Bad" for our client's side.
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Organizing the Library

In reading each case, I note the Holdings as (H) and Rules (R) and the Multi-factor Tests (MFT's).  For example, in Feb. 2002 PT B, a multi-factor test in the Buchan case relates to the "public interest" test. 

Watch for cases within cases, footnotes, italicized and bolded words in the case.  Issues are generally triggered by the word, "whether," while holdings are generally triggered by the words, we...hold, believe, conclude, etc.

I develop a Task A and a Task B pile of notes and cases, so that I can easily reference these when I begin to write.

If there are statutes, I skim them to get the salient points of the law.  I copiously highlight in yellow, and pull out the rules, holdings, etc. using a blue highlighter, making notations on the side of the case.

After reading the library, I go back and read the file.  The library has already told me what's important.  I look for the same issues in the files and match these to the rules and the holdings of the cases in the library. Or to the salient statutes.

I reserve the last 1.5 hours to write my analysis, using the IRAC method.  Issue-Rule-Analysis-Conclusion.

After writing my PT, I quickly review to ensure that I addressed each task.  And, so that I don't forget little things like proper format (e.g. Memo's are addressed to the Law Firm Partner from the Applicant, etc.). Is a signature line required?

Last, I spell check my writing. 

I advise reading and writing a mix of objective and persuasive PT's, which call for different tasks - memorandum, memorandum of points and authorities, appellate brief, letter to opposing counsel, writing declarations, etc. And advise picking out PT's that hit different aspects of the law - torts, con law, wills & trusts, family law. . .

For the Feb. 2009 bar exam, I wrote 4 PT's and read one PT. For the July 2010 bar exam, I wrote 1 PT and read 4 other's. If PT's are not your strong suit, I would advise reading and writing at least 6 PT's and analyze them against the model answers. Did you pick up each issue, rule and holding? Did you refer to a multi-factor test? Look at the organization of the model answers. Examine how the model answers used headings, cases, holdings, and MFT's.

Attached is a photo of how I organize the PT. . .shades of the actual bar exam.  I've landed back in California, secured temp employment for a law firm, and am aiming to nail the bar exam in July 2011.

Organizing the file

Copies of the PT's and model answers can be printed from the State Bar web site.  See sidebar to this blog.

For my friends taking the Feb. 2011 exam, I hope that you "nail" it, too!