Most bar exams require applicants to complete one or two 90-minute performance tests as a component of the exams. A performance test asks you to complete a sample work assignment typically performed by a law firm associate. The assignment may be objective, like the discussion section of an office memorandum, or persuasive, like the argument section of a litigation brief.
Preparing To Pass
The performance test component accounts for 14-20% of an applicant’s total bar exam score (20% in UBE jurisdictions). This may seem like a relatively small percentage, but it can be difficult to pass the exam if you don’t achieve a minimally passing score on the performance test component. Thus, it is important to think about and practice a strategy in advance of the exam that will allow you to complete a performance test within 90 minutes.
Effectively Managing Your Time
Performance test assignment materials are divided into two components – a file and a library. The file describes your assigned task, the legal issues, and the client’s facts. The library contains the law – usually, a collection of statutes and case law – that you will apply to the facts. Together, the file and library include approximately 15-20 pages of densely packed information. You need to quickly digest and outline this information in order to draft a comprehensive, intelligible answer that analyzes the client’s legal issues.
The following steps should help you effectively manage your time and produce a complete, well-drafted answer within 90 minutes. Ideally, you should put the steps into practice during the months leading up to the bar exam as you tackle several full-length, practice performance tests.
1. The First 40-45 Minutes
The first 40-45 minutes are critical for laying the groundwork and organizing your entire performance test answer. If you follow the steps outlined below during this first half of the test session (feel free to tweak them as necessary to fit your organizational style and pacing needs), the second half should be a relatively straightforward exercise in which you primarily flesh out and perfect the answer that you have already outlined.
Step One: Skim The Instructions
After practicing a few performance tests, you will notice that a list of boilerplate instructions always precedes the file section of the assignment. These instructions are virtually identical for every test and usually begin with something like, “You will have 90 minutes to complete this session of the examination. This performance test is designed to evaluate your ability to handle a select number of legal authorities in the context of a factual problem involving a client.” During the exam, your best strategy is to quickly skim these instructions. Once you’ve determined they’re essentially the same as for previous tests you’ve practiced, remove them from the test packet and don’t give them another thought.
Step two: Read the File And Begin Outlining
The case file always begins with a memo from the supervising attorney that describes your task and the client’s legal issues. Once you identify the task (discussion section of a memo, argument section of brief, letter to client or opposing counsel, etc.), begin outlining your answer with a headline that specifies the task, e.g. “DISCUSSION.” This headline will show the grader that you understand your task.
Next, insert subheadings below the task heading that describe the client’s legal issues as set out in the supervising attorney memo, e.g., (1) Does P Have a Viable Cause of Action for Battery? and (2) Does D Have Any Affirmative Defenses? (Note: If you were asked to draft the argument section of a brief involving these same issues, your headings would be formatted as legal arguments, e.g., (1) P Has a Viable Cause of Action for Battery and (2) D Does Not Have Any Affirmative Defenses.)
After you draft the subheadings, read through the remaining factual documents in the file and insert bullet points under each subheading that list any seemingly relevant facts and note the page numbers in the file on which they can be found. Don’t worry at this stage about whether a particular fact is definitely relevant to a particular issue – your goal is to familiarize yourself with the file and begin to get a sense of where you will address particular facts within your answer.
Step Three: Read the Library and Continue Outlining
Read through the library and insert bullet-points referencing the controlling rules stated in the statutes, cases, and other authorities, and the page numbers on which they can be found. These “rules lists” will eventually comprise roadmap paragraphs that will introduce the legal analysis under each subheading.
Next, read through the cases and determine which ones illustrate particular rules outlined in your roadmap paragraphs. Immediately following your bullet points for the roadmap paragraphs in which those rules are listed, insert bullet points that summarize the courts’ holdings, facts, and reasoning from the cases. In general, you should first outline any cases that reach holdings consistent with the conclusion you anticipate the court will reach (or argue that the court should reach) in the client’s case. Next, outline cases that reach the opposite conclusion.
The legally relevant facts from the client’s case that you began outlining in step two should comprise the last part of your outline under each subheading. Now is the time, if necessary, to edit or move these facts to different sections of your outline based on the legal analysis in the library’s authorities.
Step Four: Skim The File One More Time And Complete the Outline
At this point, you should be about 30 to 35 minutes into the 90-minute test session. You should now spend 5 to 10 minutes skimming the file a final time to make sure you have included all of the client’s relevant facts and omitted any irrelevant facts within the last part of bullet-point outline under each subheading. Make sure to include any facts that are analogous to or distinguishable from the facts described in the library’s cases.
2. The Final 45-50 Minutes
Assuming you carefully completed a task outline during the first 40-45 minutes, the final 40-45 minutes of the test session should go fairly smoothly. Your primary goal during this second half is to complete your answer by fleshing out your bullet points into complete, intelligible, well-crafted sentences and paragraphs. Begin by fleshing out your roadmap paragraphs under each subheading. Then work through the precedential case explanations and the factual analogies and distinctions to your client’s case. Finally, in the last sentence or two of each subsection, state a conclusion that directly relates to the content of the subheading for the particular subsection.
A Final Note
Even if you practice several performance tests in advance of the bar exam, you are likely to feel some time pressure during the actual 90-minute test. Try to avoid letting that pressure shake your confidence. It may help you to remember that every aspiring attorney who takes your jurisdiction’s exam is subject to the same time limit. Because you will have completed several practice tests in advance using the above steps, you can proceed with the assurance that a respectable score should be within your reach.
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