While it’s the most “lawyerly” part of the bar examination, drafting a winning performance test isn’t easy. After all, the examiners expect you to demonstrate several important skills, including time management, reading comprehension, and drafting legal analysis, in a measly ninety minutes. We previously posted some tips for perfecting your performance test approach in this blog post. Today, we’re sharing a few additional tips to add to your performance test toolbox.
Add in Analogical Reasoning
The performance test is the one place on the bar examination where you can showcase your ability to draft rule proofs (also known as case illustration) and explain how or why the facts in the file are analogous to or distinguishable from a precedent case. Trust us when we say that a grader is going to expect to see you demonstrate this skill—so make sure you don’t skip it.
The good news is that you don’t have to devote paragraphs to drafting a winning rule proof—this can usually be accomplished in just a few sentences. Be sure to include the name of the case, the key facts (TOP TIP—these can usually be found immediately following the rule, where the court articulates in reasoning), the holding, and the reasoning.
Try this formula: In [CASE NAME], [KEY FACTS]. The court held [HOLDING], reasoning that [REASONING].
In your analysis or argument section, be sure to be explicit in comparing or contrasting the precedent case with the fact in the file. An easy way to accomplish this is to start with language like, “Here, as in [CASE NAME],” or “Here, unlike in [CASE NAME].”
Lots of Statutes…Start with the Cases
You will typically use EVERY case included in the library, but this isn’t always the case with statutes. Sometimes, the drafters will intentionally include immaterial statutory provisions to test your ability to distinguish the relevant from the irrelevant. If you’re faced with a slew of statutes, read the cases first (even if the statutes come first in the library), and make note of the statutes that cases cite—these are likely to be the key provisions.
When you’re drafting your performance test, you simply don’t have time to think about what an objective memorandum (or a letter to opposing counsel or a brief) should look like. To that end, spend some time developing “templates” for what each document should look like in advance.
Need some more assistance with preparing for the California Bar Exam? Here are some BarMD tools that may help: