Now that I’ve wrote the two posts below about how to prepare for the MBE and Essay portions of the bar, I’m writing my next post about preparing for the ever-challenging California Bar Performance Test.
What is a the Performance Test in California?
Brief rundown for those who don’t know: the PT in California is a three hour portion of the the exam given on the first and third afternoon of the test. You will be required to draft some type of legal document (typically a memorandum, but can be a closing argument, letter to opposing counsel, etc) based on a given set of facts (found in the “file”) and a given set of law (found in the “library”). For the purposes of the performance test, you do not need to have law memorized since they give you all the law necessary for your answer. However, your knowledge of legal application does come into play. It’s a pretty challenging aspect of the test since it requires a lot of sound organization, analysis and law to fact application. In my opinion, the best thing you can do is think of the performance test as a competence exam where you are showing the examiner your badass writing skills without the burden of worrying whether or not you memorized the law correctly.
While the PT does not require substantive knowledge, this doesn’t meant the PT should be ignored in studying. The PT is sometimes overlooked, and that’s a shame! Stating the obvious: scoring well on the PT can make the difference between passing and failing. Plus, one theory I have is that the PT curve can be slightly more lenient than the essay curve. Therefore, if you are a strong PT taker, you may be able to make up more ground on points vs someone who is a decent essay taker. But, that being said, all six essays count do more than the two PTs.
(I may give a breakdown of how much the PT is worth in a later post). Moving on…
How do I start preparing?
When preparing for the performance test, I think the first thing to do is to give yourself a diagnostic exam. You can find the past performance tests here with selected answers. Print one out, and give it to yourself. Obviously, PTs can range in difficulty from easy to medium to hard. I think starting out with an easier one is probably a good idea, and the PT I would recommend starting out with is PTA- Pannine v. Dreslin from the February 2009 bar exam. I’d rank this PT as easy to medium difficulty.
If you’re looking for a difficult PT, check out PTA- In re Clef from the July 2012 bar exam. And for an even more challenging PT (in my opinion), check out In re Clef’s evil twin PTA- In re Sia from the July 2013 bar exam.
On initial diagnostics, stay within the 3 hour time limit. Generally on a PT, you want to give yourself 1.5 for reading the file and library and outlining an answer and 1.5 hours for actual writing.
Once you’re done with the PT, compare your answer to the model answer checking off whether you issue spotted correctly and stated the rules correctly. Don’t worry if you draw differing conclusions since this doesn’t really matter too much. If the PT went really well– then good for you! You can probably feel good about your baseline PT-taking abilities. If it was difficult– then you know you need to focus on the PT portion more. Remember, PTs range in level of difficulty, so it’s best to take a few in order to get a good feel for the PT.
Then what? How do I improve?
After you’ve gotten a good idea of where you stand in performance test-taking ability, I think the next step is to start refining your approach. Decide whether it’s worth your time to maybe brief every case? Or perhaps you think it would be a better strategy to read the library first, then the file. You may want to try giving yourself more than 3 hours to see where you would stack up if the PT was 5 hours long. If you write an amazing PT in 5 hours that hits all the issues, then you know you’re doing something right, you just need to work on better time management. If it’s more of an understanding/comprehension issue, then perhaps your time is best focused there.
What if I’m not improving?
Honestly, I think the best thing to do if the PT seems like an unsurmountable challenge is to hire a tutor to provide further assistance (or perhaps find a kind, patient faculty member at your university that you feel you can trust with this challenge). Tutors can provide a specific approach to the PT, which can be very helpful. I think too many examinees are tempted to just sweep the PT under the rug and pretend like it doesn’t exist, but that’s really not going to benefit you at all on the exam. Trust me, a poor PT performance on day one is going to haunt you through the rest of the exam, even if you feel like you killed all three day one essays. Trust me. You want to feel good about your performance going out of day one.
My general PT tips
First and foremost, identify the call of the question. Seems simple, but sometimes it’s actually not that simple. I tend to speed through the file and take my time in the library. But, I stop and spend as much time as I need identifying and fully understanding the call before moving forward. It’s that important.
Make sure you are organizing your PT answer based strictly on the call. If the call is asking you to talk about three things, organize your PT in three parts in the exact order they give you. If the call is asking you to talk about 9 things, make sure you talk about all 9.
Be aware of any embedded specific requests. The PT will tell you if it wants you to write a statement of facts. It’ll tell you whether it’s objective or argumentative. It’ll let you know if it’s looking for a specific style of headings (long and argumentative, or short and to the point). Be on the look out for this stuff, and following the instructions can be a very easy way to pick up points, and not following them tells the grader you don’t know how to follow instructions.
Play around will approaches. Maybe on one practice PT, try and see if you are more comfortable reading the library first. Try and see if briefing cases help.
My specific PT tips — take these with a grain of salt since I do NOT profess do be an expert
Ok, I don’t want to get into too many specifics since I think the PT can be different for everyone, but one thing that worked well for me (I think) is inputting the law and some of the facts directly into the organized structure I put on my screen right away after reading the call, instead of taking notes on paper or highlighting in the file, etc. When I took notes on paper or highlighted in the file, I tended to lose track of the law and facts once I reached the end of the both the file and library because of the sheer amount of information. The more PTs I took, the more obvious it became what certain facts and certain cases were triggering which issues in the call. So, to stay on top of all the information better, I started inputting more directly in order to keep the massive amount of information better organized. This worked for me. Keep in mind, it may not be what works for you.
Final thoughts
I wish I could write a blog post telling you exactly how to take a PT and be successful each and every time, but I don’t feel capable of that since I don’t have experience as a grader or tutor. However, I do feel that if you a struggling, a tutor may be able to provide you with their approach to taking a PT, which could result in being successful each and every time.
All in all, the PT is really about practice and it’s one part of the exam I think you can start practicing well-before the exam without the danger of forgetting information as time passes.
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CalBarista 