A Bar Examiner Clears Up Performance Exam Myths

Myths abound about what is required to pass the Performance Exam, including:

• The importance of the Call of the Question to the final answer
  
  
• How much material from the Performance exam packet to use
  
  
• Whether to outline before writing the answer
  
  
• How much time to allocate to writing the final answer

To clear up these myths, Fleming's went to the source - a former bar exam grader who evaluated Performance exams for 10 bar cycles. She revealed what Bar Examiners look for in a passing Performance exam answer.

THE CALL OF THE QUESTION - FOLLOWING DIRECTIONS

The Call of the Question frames the interest of the Bar Examiners in the exam and what they want to know when they read the answer. It also provides directions for crafting the answer. Thus, understanding the Call of the Question, together with all directions given, is vital from the start because the Call gives context to all that follows. If the final answer does not specifically respond to what has been asked - and in the manner requested in the Call - it will receive little to no point value. 

As stated by Bar Examiner Harjit Sull, “Following directions is an absolute requirement to pass the Performance Exam.” 

Bar Examiners are intolerant of answers that fail to specifically follow the instructions given in the exam packet. Taking the time to understand the instructions and to answer accordingly is essential for passing. 

According to Professor Sull, the number one reason bar candidates do not pass the Performance Exam is that they do not take the time to understand the instructions and answer as directed.

HOW MUCH TO USE IN THE PERFORMANCE EXAM TEST PACKET

The Performance exam test packet is a closed universe that is made up of two distinct sections - a File and a Library. What is contained in these sections is what should be used for purposes of gathering relevant data to use in the final answer.

The File is where all the facts related to the controversy are located. The Library is where all the legal authorities related to the controversy are located. Both the File and Library in every Performance test packet contain relevant and irrelevant information. It is up to bar candidates to select only what is relevant to the Calls of the Question. This ability is what Bar Examiners evaluate when grading the final Performance Exam answer.

With all Performance Exams, bar candidates must carefully sort through the facts in the File, and select only those that are relevant. Irrelevant facts should be eliminated. The same goes for the authorities in the Library. Every authority in the Library is intended to be used (absent a specific instruction not to do so). However, not everything in every authority is relevant. Thus, bar candidates must extract what is pertinent from each authority and eliminate what is not. Once again, the Call of the Question is vital in assisting bar candidates to understand what is relevant in order to sort through the materials in the File and Library to select relevant information, factually and legally.

Professor Sull noted that in too many of the Performance exam answers she has graded, bar candidates are looking for too much so they typically fill up their answers with irrelevant data, both factually and legally. This immediately tells her these bar candidates did not take the time to fully understand the issues raised by the Calls and separate relevant data from irrelevant data before entering the writing phase of the exam. An answer that is replete with irrelevant information distracts from the quality of such an answer and results in a lower grade.

Because the Performance test packet provides the facts and authorities related to the controversy, all facts and law must come from the File and Library and nowhere else. Facts not contained in the File should not be used. Authorities not appearing in the Library should not be cited. Rules not contained in the Library authorities should not be used. 

OUTLINING AND ORGANIZATION

In order to pass the Performance Exam, an organized answer is a must. This requires effective exam outlining and organizing before launching into the writing phase. 

Professor Sull stated unequivocally that outlining and organizing the law and facts in the exam on a separate outline sheet is essential before entering the writing phase. Without an effective outline, it is nearly impossible to see the connecting threads between the facts and the authorities, and how the parts fit together.

Bar candidates who try to write the exam without first organizing the law and facts on a separate outline sheet are generally unorganized. They may see what is factually and legally relevant, but they simply do not see how the parts connect. 

According to Professor Sull, the number two reason bar candidates do not pass the Performance Exam is that they do not properly outline and organize their exam answers.

TONE – CONSIDER THE AUDIENCE

Another common error bar candidates make is that they do not take into consideration the proper tone to use in their written answer. Tone depends on who the recipient of the assignment is - the audience. The tone one would use with a judge or with opposing counsel is not the same tone to use in a memo to the senior partner or in a letter to the client. Failure to use the proper tone is another common reason that an exam answer receives less than a passing score. Once again, bar candidates who do not take the time to understand the Call of the Question and take into consideration who the audience is will not pass the Performance Exam. 

Understanding the interest of the audience is vital to crafting a proper exam answer. 

WRITING AND TIME ALLOCATION

Performance exams in California - and in most other states - are tested in 90-minute increments. Bar candidates may use this time as they see fit. The writing time is dependant on how long it takes to read and outline the exam before entering the final writing phase. 

Generally speaking, an exam answer should average between 1000 – 1200 words. To support that estimate, Fleming’s has many examples of Performance exam answers that have received passing scores. One sample answer received an 80 with only 961 words, which demonstrates that it is quality, not quantity, that receives a passing score.

Most typists average 30 -40 words a minute. They can easily produce a passing answer averaging 1000 – 1200 words in 35-40 minutes. The same is true for hand-writers, who typically average 25 words a minute. Thus, bar candidates who take the time to properly outline and organize their data before entering the final writing phase, and then work from that outline, can easily produce a quality passing answer within these given parameters.

There are rumors that some bar review courses tell their students to write for 45 of those 90 minutes “no matter what.” When asked about this, Professor Harjit Sull completely debunked this 45-minute writing myth. The Bar Examiners are looking for quality, not quantity. The Performance exam answer is not evaluated on its length. The Bar Examiners have no way of knowing how long a bar candidate writes. What the bar grader does know is whether the Performance answer follows directions, is organized, uses the proper tone, applies the authorities and facts in a lawyerlike discussion, and is responsive to the inquiry posed in the Call of the Question. 

Students who enter the writing phase prematurely, before they have put the puzzle together and organized the law and facts, rarely produce a passing answer.

According to Professor Sull, the number three reason bar candidates do not pass the Performance Exam is that they do not properly allocate test time.

PERFORMANCE EXAM PATTERNS

All Performance exams contain patterns for issue spotting and material fact identification. It is for this reason that all bar candidates should include Performance bar exam practice tests in their bar exam prep - because the more bar exam practice tests they take, the more patterns they will see emerging. 

Those who really practice during bar exam prep before taking the Bar Exam will not only perfect their Performance lawyering skills, but they will soon recognize that the Bar Examiners deliberately include clues in the exam test packet that assist them in finding what is most important, factually and legally. 

Nothing is hidden. 

Bar candidates who take the time to practice and follow the clues embedded in each exam packet will see the patterns emerge.

PERFORMANCE TRAINING

Most bar review prep courses have Performance exam instruction. However, few have a step-by-step method for handling a Performance test like Fleming’s 4-day Performance Workshop. The Fleming’s Performance Workshop is included in our bar exam review courses. It can also be taken as a separate course for those who only want Performance training. The course includes Performance bar exam questions together with the opportunity to write 4 exam answers for personal feedback from Fleming’s readers.

Fleming’s also offers private tutorial services with its attorney tutors for those who want individual instruction. 

If you have heard myths about the Performance exam and wonder what to believe, this interview summary with a bar grader should clear them up so you know fact from fiction.

Contact Fleming’s today for more information on its Performance Workshop and private tutorial services.