“If you’re playing a poker game and you look around the table and can’t tell who the sucker it, it’s you.” Paul Newman – Movie Star
The most common complaint I hear from applicants preparing to take the bar exam is this:
“I had trouble organizing my answer. This created time pressure to finish within three hours. There is so much material in every Performance Test and so little time to absorb and deal with it.”
“Practice makes perfect” in performance test writing; the more you write the better you’ll get. That said though, you can also practice not being a sucker.
Here’s the difference.
Performance tests contain “tells,” something in how they are put together that suggests how you should organize your answer. These tells- you might also think of them as clues – have worked their way into PT’s over the years. Some are designed into the questions. Some, I think, are unintentional and remain in the tests because the PT creation process has varied so little over the years.
Every PT can be said to be organized in three layers, from the most general to the most specific. Because there are a limited number of PT’s, becoming acquainted with them by going over past PTs at the “Past Exams” web page at the Office of Admissions[1] can put an applicant ahead of students who are just answering performance test questions as they are assigned by bar prep courses.
The Most Common First Layers
These two are the most common:
– The Persuasive Memo. E.g.: Letter to opposing counsel, or points and authorities in support of a motion to exclude evidence, or closing argument. Examples are: PT A (State v. Dolan) from the February 2012 Exam, and People v. Duncan from the July 2008 Exam.
– The Objective Memo. Performance Test A (In re: Swayne) from the February 2012 Exam. In re: Brent Qullen, from the July 2011 Exam. Objective memos often appear as Client Counseling Memos. In those the applicant is asked to prepare a memo analyzing the facts and law not only with an eye to which would be the strongest legal option(s) for the client, but also, for which are most in keeping with the client’s goals. It can be difficult for students who do not have direct client counseling experience and who have not run into it before. E.g.: Phoenix Towers v. Porter from the February 2009 Exam, and In re Virta and Burnsen from the February 2015 Exam.
One more is less common, but has been tested more than once.
– The Investigatory Memo Also exemplified by Phoenix Towers. Most often one call of several in a broader call, this call asks the applicant to suggest additional information that could be collected by an investigator to bolster the client’s case, or shed more light on an objective analysis. This type of call penalizes the applicant who has no clinical experience in civil discovery or in working with an investigator, and who hasn’t engaged meaningfully with this type of question during preparation. Tells to questions such as this are the presence in the material of an investigator, or some other fact collector, who might be called by various titles, including “consultant” or “expert.”
That’s not the end of the story though.
Tune into the next installment of “You and the Bar Exam” if you’re curious.
[1] http://admissions.calbar.ca.gov/Examinations/PastExams.aspx
