CA Bar 2009: Performance Test Tips
PERFORMANCE PERFO RMANCE TEST TIPS 1 A. Part Partss of of Per Perfo form rman ance ce 1. Library: contains the legal authorities needed to complete the task, including fictitious/real/modified fictitious/real/modified cases. a. Sometime Sometimess there is no librar library—i y—instr nstructio uctions ns will tell tell you what’ what’ss to be included included b. Do not assume assume that seemingly seemingly familia familiarr cases follow follow what happened happened in real life—re life—read ad them anyway anyway.. c. You can use abbreviations and omit page citations when citing from the library but use easily understandable citations. 1) Cite to to the cases cases or the statut statutee (but no blueboo bluebooking king or ALWD) ALWD) 2) You can bring in your “general “general knowledge knowledge of the law” but the performance performance test is a closed universe universe prob 2. Client’s Client’s File: factual materials about your case incl a memo containing instructions for the tasks you need to complete 3. Task Me Memo a. Will ill tel telll you you the the tas task k b. Will tell tell you you the the tone tone to to perfo perform rm it it c. Whatever Whatever order or or method method exam exam gives gives you, you, you you should should follow follow it d. Note the number number of topics topics that exam wants you to address address e. If memo indicat indicates es something something that that may or may not not be of continui continuing ng validity validity,, you must includ includee it. f. “Memorandu “Memorandum” m” on the the bar: bar: is a nonspe nonspecifi cificc format format unless unless the the exam specifies specifies.. B. Skills Skills Test Tested ed on the Perf Perform ormanc ancee Exam 1. Legal egal Analy alysis sis a. Obje Object ctiv ivee writ writin ing g b. b. Pers Persua uasi sive ve wri writi ting ng 2. Fact act Gathe thering ring 3. Fact act Analy nalyssis a. Is not not leg legal al anal analys ysis is re only disputing the facts b. It’s where the law is given to you or agreed upon and you aare c. Exampl Example: e: a closing closing argum argument ent/op /openi ening ng statem statement ent 4. Tacti actics cs/P /Pro robl blem em Solv Solvin ing g a. Came ame up up in in Feb Feb 2009 2009 b. b. Was tes teste ted d 8 yea years rs in in a row row 5. Ethi Ethica call Cons Consid ider erat atio ions ns a. Someth Something ing w/ ethics ethics is alwa always ys tested tested 6. Com Communi munica cati tion on a. Orga Organi niza zati tion on of of mate materi rial alss b. b. Pres Presen enta tati tion on of of mate materi rial alss c. Time man manaageme gement nt Tone + Audience (ie, use layman’s terms when talking to a client) d. 7. NB: these these areas areas can can overlap overlap and may may or may not be neatly neatly segregat segregated ed on the the exam C. Ou Outl tlin ining ing the the ans answe werr 1. Skelet Skeleton on outl outline ine firs firstt of the the task task memo: 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 every “and” “and” and “or” indicatin indicating g compo compound und questions questions c. Note the audience, audience, law questions questions and fact fact questions questions 2. Substa Substanti ntive ve outl outline ine of of Libra Library ry and and File 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 times—it’s a key word that the exam is testing you on 2) Don’ Don’tt bri brief ef them them.. Inst Instea ead: d: A) High Highllight ght B) Focus Focus on: elemen elements, ts, big big issues, issues, repeated repeated key words words C) Holding Holding may may or may may not be impor important tant D) Dicta Dicta may or may may not not be be importa important nt b. Statutes 1) If there’s there’s lots lots of statute statutes, s, focus focus on the ones that that are cited cited in the Task Task Memo Memo 2) If a case mentions a statute that also appears in the Task Memo use it! 3) If prob prob has has 30-40 30-40 statutes, statutes, just pick out a few. few. 4) If prob prob has a coupl couplee of statute statutes, s, need need to read them carefully carefully c. Subs Substa tant ntiv ivee out outli line ne 1) Use quick cites and page numbers to turn the TOC TOC for the Library and File into an index of major issues/facts
CA Bar 2009: Performance Test Tips
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In break, fill fill in Task Task Memo outline w/ the TOC TOC notes but keep keep the Task Task Memo outline big picture otherwise otherwise it’ll get too cluttered d. Footnotes 1) Don’t Don’t ignore ignore it, it can be helpful helpful and is footnot footnoted ed b/c of the cap cap on exam problem problem words words e. You should should only only wind up w/ 3-4 3-4 major major issues issues + some some minor minor issues 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. Comp Compli lian ance ce to to instr instruc ucti tion onss 2. Content 3. Thoroughness 4. Orga Organ nizat izatio ion n 5. NB: prob may tell you the weighted grade breakdown— itit matters most when the breakdowns are grossly uneven b/c passing might turn on passing the larger part only E. Barbri Barbri sugges suggested ted appro approach ach:: 1. First Firs t 85 mins : a. Read Read the the gene genera rall dire direct ctio ions ns b. b. Read Read the the tas task k mem memo o c. Outl Outlin inee the the task task memo memo d. Tear out the task task memo memo (in CA, CA, you’re you’re allow allowed ed to tear tear it out) out) e. Tear out out and read the the Instru Instruction ction Sheet Sheet (if one is is provided) provided) f. Read and outline the Library and File 1) Tip: Tip: Might want want to read read Library Library first first to understand understand issues issues and elemen elements, ts, then read read File File 2) Prac Practi tice ce both both orde orders rs 3) You won’ won’tt have have time time to to re-re re-read ad both both g. Organ Organiza izatio tion n and headi headings ngs are are critic critical! al! 2. Take a 5-10 min break/review task memo/think organization 3. Write answer in 85 -90 mins min s F. If there’ there’ss a documen documentt instruc instructio tion n sheet: sheet: 1. Jurisi Jurisidic dicti tiona onall basis basis for the case case 2. Stat Statem emen entt of Fact Factss a. Must includ includee all legally legally relevant relevant facts, facts, whethe whetherr they make make your your client client look good good or bad b. Couch Couch the negative negative facts facts with with some positi positive ve facts—mak facts—makee your client client look 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. Ques Questi tion onss pres presen ente ted d a. Once before before,, the exam exam asked asked you to include include a secti section on entitled entitled “Quest “Questions ions Presen Presented” ted” b. you must state the precise question or questions presented, as a combination of legally relevant facts + precise point of law 4. Summ Summar ary y of Argu Argume ment nt a. Succinctl Succinctly y encaps encapsulate ulate the argument argument in your favor b. Can be the the declarati declarative ve statemen statementt version version of the questio questions ns presente presented. d. 5. Headings: Headings: should should be a specific specific applica application tion of the the law to the facts facts and not just just a bare legal legal conclusion conclusion or factual factual conclusion. 6. Argument a. Analyze Analyze applicab applicable le legal legal authorit authority y and persuasi persuasively vely argue argue the the facts facts and the law law b. Authorit Authority y supportiv supportivee of your position position must must be emphasize emphasized d c. You must cite and distinguish contrary authority/documents, not just contrary cases . 7. Do not do the secti sections ons out of order—y order—you’ll ou’ll forget forget to go go back!!! back!!! 8. You don’t don’t need to to provide: provide: a TOC, TOC, table table of cases cases or or index. index. G. Logist istics 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. Writer Writerss and compu computerter-user userss tend tend to get get similar similar grades grades 3. Do some some handwr handwritte itten n practice practice questi questions ons in in case laptop laptop fails fails 4. Sometimes installing things things after you’ve downloaded downloaded ExamSoft, ExamSoft, it will will uninstall uninstall ExamSoft ExamSoft so make sure it’s it’s working. 5. Some exam exam formats formats require require you to use columns—E columns—ExamS xamSoft oft now lets lets you do columns; columns; other people people used paper paper for this portion. 6. Skip lines lines b/t b/t paragrap paragraphs hs so that that distinc distinctt issues issues are separ separated ated out. out. 7. Use he headings ngs. 8. Writers riters have have to use blue blue or black black ink. ink. 9. You can can bring bring highl highligh ighter terss into into exam. exam.
CA Bar 2009: Performance Test Tips
