Five Common Issues on the Performance Test and How to Fix Them

Bar candidates are often intimidated by the performance test because the materials that present the question are so long they consume an entire packet!  However, success on the performance test does not depend on how fast you can read, but how well you can read and if you have mastered an approach for each section of the performance test.  In addition, much of the work you did for your legal writing class has given you the tools you need to do well on the performance exam.

As explained below, most of the mistakes bar candidates make on the performance test are actually reading comprehension issues.  If you make sure that you read well, you will do well on the performance exam.

Mistake #1:   Failing to follow directions

Bar candidates tend to breeze through the one or two documents that comprise the directions too quickly.  They write a memorandum when a letter is called for, or they write a brief when a motion is requested.  One of the first things you should do on a performance exam is to identify exactly what type of document you are asked to produce.

Another aspect of failing to follow directions is not using the format requested in the documents in the packet that give you your instructions.  After you identify what type of document you need to produce, make sure that you use the format that is requested.  You might even outline your performance exam answer using the format laid out in the performance test instructions.

Mistake #2:  Failing to use the right tone

Most performance tests require either an objective tone or a persuasive tone.  An objective tone means that you try to predict what the most likely legal outcome will be in given a particular set of facts and law.   A persuasive document argues that one particular side should prevail, and presents the arguments for why that side should prevail

Some bar candidates mistakenly assume that a particular type of document will always be objective or always be persuasive.  This is not at all the case.  For example, a letter can be objective or persuasive.  A letter to a client recommending a particular course of action is objective because you are trying to inform the client of the most likely legal outcome.  In contrast, a letter to opposing counsel is persuasive because you are presenting your strongest arguments as to why your client will prevail.

Similarly, a memorandum to a colleague at a law firm or legal department analyzing a given situation and making recommendations is an objective document.  A memorandum is persuasive if it supports some type of motion or other pleading.

Mistake #3  Failing to Guide the Bar Examiner Through Your Answer

For some reason, bar candidates who sprinkle their essays liberally with headings and subheadings will write one or two lengthy paragraphs for their Performance Test.  Sometimes they don’t even use headings in their performance tests!

Bar examiners dread this type of answer because it is difficult to follow the bar candidate’s reasoning process, and this makes that type of answer difficult to grade.

What types of headings should you use?  Often the instructions will contain headings or types of headings in the format instructions.  Go ahead and use these headings.  In addition, you can use the same types of headings that you use in your essay exams:  causes of action, rules, elements, etc.

Mistake #4:  Creating Elaborate Case Briefs

This mistake is entirely understandable.  You are used to briefing cases for a law school class, where you were grilled on minute details of the facts of the case, the procedural history, the holding, the judge’s reasoning, and any new black letter law that emerged.

You don’t need all this stuff when you do a performance test.   As a matter of fact, if you include all this stuff you will significantly decrease your chances of getting a good score on the performance test because doing such an elaborate brief takes too much time!  Instead, focus on finding the rules of law that the court used in its decision.  Make sure you can find those rules when you need to apply them to the given situation.  If there is a strong policy argument, you can note that too.  Remember, this is an artificial situation with extreme time pressure so any document you produce will, of course, be less complete than something you will produce when practicing law.

Mistake #5 Failing to Use the Facts

This mistake is also common in essay exams.  As a matter of fact, if you don’t make sufficient use of the facts in your essay exams, you will most likely fail to make sufficient use of the facts in your performance test.  Remember, the bar examiners placed each fact in the file for a reason.  You should scrutinize each fact to determine where it can be related to the given law.

The best way to ensure that you do not fall into one of these mistakes is to take lots of practice performance tests.  Your will maximize your chances of passing the performance tests if you write out all the answers completely, rather than just outlining the answer.

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Did you find this post helpful? Check out some other great articles:

• The Performance Test: Why You Should be Studying Now
• The Key to the Performance Test: Find Your Approach
• Can Paper Clips Help You Pass the Performance Test?
• Are You Evaluating Your Work? You Should Be!

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