Success on the performance test part of the bar exam requires keeping control of your time and following the instructions to the letter. Too many people just launch into the work product on the performance test without looking at the clock, hoping they will somehow cover the material. That’s like jumping into the Atlantic Ocean and starting to swim, hoping you will get to Europe. It is impossible to finish on time.
You don’t need to know any particular law for the performance test. The test asks you to draft a work product at the level of skill of a first-year associate. The Multistate Performance Test (MPT) version comes from the National Conference of Bar Examiners and is administered in many jurisdictions. The bar examiners give you a file, which contains the instructions and simulated law office materials like letters and transcripts of interviews, plus a library of research materials. You must follow the instructions in the task memo (the “Partner Memo”), do the research in the simulated materials provided, and draft your work product, all within 90 minutes. The California Performance Test (PT), on the other hand, allows three hours, but it may contain two or three separate assignments. If you have trouble with understanding a new area of law or reading the cases or statutes, it can add to your problems.
Here is a successful system for finishing the performance test on time.
First, divide the performance test into parts and time each part. You must control your time on each part of the test separately. I’m going to talk about the MPT here, but everything I say can be translated for the California Performance Test, the Pennsylvania Performance Test, and every other performance test. First, on the MPT, I recommend spending five minutes reading, understanding, and outlining the instructions on the Partner Memo.
You may need to study some other documents as well. For example, the Partner Memo may refer you to another memo in the file that contains the law office’s format for a brief or a memo or another type of document. Or the Partner Memo may refer you to a letter from opposing counsel, to which you must respond. These documents must be understood and outlined along with the Partner Memo. You will decide how to phrase the main issue or issues in the case as you do your outline.
You should spend the next thirty-five minutes reading quickly through all the materials in the file and the library, noting which points will help you respond to which instructions in the Partner Memo to resolve the main issues. You must push yourself to read fast enough. I recommend reading the statutes first, since cases usually apply statutes, then going back to the beginning of the file and reading straight through all the materials. Sometimes the key to the main issue is in the cases in the library, but reading the cases first without knowing the facts is inefficient.
Before you start to write the work product, go back and re-read the instructions and the Partner Memo, plan how to divide your time, and get mentally focused. Following the instructions in the Partner Memo is the key to success on the performance test. Nothing is more damaging to your grade than to drift away from the instructions and hand in a work product that does not respond to the Partner Memo.
You should allow forty-five minutes for drafting the work product. Use the clock to help divide your work product into parts. Suppose, for example, that the work product is a memo, and you are told to draft an introduction, a discussion, and a conclusion. The discussion may have, for example, three subparts. That means that your memo in effect has five parts. Divide your forty-five minutes accordingly. The three main sections might get ten minutes each, while the introduction and conclusion could both be polished off in the other fifteen minutes. Controlling what you write according to the minute hand on the clock is the only way to make sure you will finish.
Treat each section of your work product like a short answer question. How can you control what you write and not ramble? Write a conclusion for each section before writing out the whole work product. For example, if the discussion section of the memo will have three parts, write three sentences, one for each section, and then fill in the rest of the section with an additional two to four sentences. If you limit yourself to two to four additional sentences for each section, you will never find yourself in the middle of an ocean of words.
At the end, spend five minutes going over the entire project again. Read the instructions in the Partner Memo yet again, to make sure you have followed the instructions meticulously. Check your format. Make sure you have not overlooked ethical issues. Proofread. Hand in the paper.
The performance test will never be your best work. It will always be just a first draft. But if you manage your time and finish it, you can be sure that you have handed in your best first draft.
Originally published 2012-06-29.