Performance Test Essays SPOT ISSUES & WORK WITH FACTS If you know the law, you talk about the law. But that always hurts. You WANT TO TALK ABOUT THE FACTS!!!! (This cannot be stressed enough). Answer questions asked. Day 3- people usually do worse on day 3. It is a good day to make up bad days 1 or 2. Don’t ever give up. Grading o You get 40% for just showing up. Average grades tend to be 63.5%-65.5% o Each essay is worth 100 points (total 600) o Each Performance Test is worth 200 points. o MBE (136 out of 200 raw school) varies between 126-136 Never more than 3 or 4 major issues on the essays Write in an organized fashion that is easy to grade. They are looking for competence, not perfection. If you see an issue and you don’t understand it, you get points for putting in the issue. Don’t leave out an issue you don’t understand. Always look for the obvious o Whatever you leave out, they will assume you didn’t know it. Performance Exam Closed universe (everything is in the material) Parts of Performance Exam o Library Cases (real and/or fake) They can change a case, modify the holding, the decision, anything. Statutes Regulations Secondary Authorities Restatements Law can be anything, not necessarily something you have studied for the bar. o Client’s File
Consists of complaint, answer, depositions, interrogatories, will, deed, request for admissions, letters, correspondence, medical reports, contract anything they think is relevant. The facts in the file can be misleading, incomplete, irrelevant, ambiguous o Task Memo**** Direction from the supervising attorney to you telling you what they want. ***This is the most important part. Skills Tested on Performance Exam o Legal Analysis o Fact Gathering Finding the facts o Fact Analysis Law is given to you or agreed upon and the disputes are just on the facts. Like a closing argument. o Tactics/Problem Solving o Ethical Considerations MUST TALK MORE FACTS THAN LAW.******* Objective Persuasive writing Communication o They look at your TONE and your AUDIENCE. o Don’t use a bunch of legalese. Know your audience and talk to your audience. Time Management & Organization
Task Memo Most important part. Do not rush through the task memo. It clarifies what they are asking. Often they ask for a memorandum. They Do NOT WANT A FORMAT UNLESS THEY TELL YOU. Memorandum does not mean what it meant in law school. ***If you see “AND”, circle it. It means they are asking you to do different things. Be SPECIFIC Be focused. Sometimes they want you to redraft the proposed ordinance.
If you include something they don’t want to see, they ignore it. If you don’t include something they want to see, they will mark you off. You do not need to bluebook cite, or give page numbers, but give a reference to the case. What to do? 1. Read the Task Memo 2. Outline the Task Memo 3. Tear out the Task Memo a. Have it in front of you 4. Read the Library or a. Pick out the issues and the elements in the library 5. Read the File a. You only have time for one read of each part. So figure out which works best for me. b. Pick out the facts that go with the elements. The Main Reason people fail is because they don’t follow directions The Library Read the footnotes Read the cases Rip out the Index of the library. If you see Elements, make sure you grab them Honingsberg Grid- if you want (pg 18). Outline Cases Outline Task Memo Outlining Goal- all outlining- be done in 85 minutes. Take a 5-10 minute break- gets you back on track. Think Big Picture FOCUS- be clear about what they want. Examples of Legal Analysis Documents The Bar Examiners have used on Previous Performance Exams Memo of Law
o objective Memo of Points & Authorities Trial Brief Appellate Brief Memo to Judge o Persuasive Client Letter o objective Letter to Opposing Attorney Position Paper o Ex. persuasive letter to agency Theory of the case memorandum Case plan
Document Instruction Sheet Statement of Facts- don’t spend too much time on it. o = LEGALLY SIGNIFICANT FACTS. o If they ask for it o If they are damaging, include them, but surround them with positive facts. o If you put all the legally significant facts in your statement of facts, and the non-legally significant facts in your analysis, it is ok. Jurisdictional Basis o If they ask for it Do NOT leave out a case that went against you. Bart’s Kingdom of Toys Performance Test Top two answers are wrong Even if you didn’t understand the cases COMPETENCE. Follow the directions Why did I take too long? Take out the key words and run with those. “Recommendation”= make sure you recommend. Title? No, unless they ask for it. NOT LOOKING FOR RIGHT OR WRONG. LOOKING FOR COMPETENCY!!!! o Can you follow the facts and the issues? Authority
o Start with Primary Authorities before secondary authorities. Don’t ever put an outline answer in. It tells the grader that you can’t budget your time, that you can’t complete the job. You do not have to mention every case every time. If you are not sure if it is relevant, better safe than sorry. You never lose points for including extra material. DO NOT NEED TO PUT QUOTES FROM CASES!!!!!! Organization Library o Read the first case. Highlight whatever is important. Legal ISSUES that are relevant!!! o Pg. # reference Fact Gathering o Theory or Ultimate Fact o Elements or Factors o DPT- (Documentary, Physical, Testimonial) These are the types of facts Some people just focus on testimonial evidence. It is important to get all the facts. o Sources o (Tools/Means—if required) o Don’t look for facts outside the file. Never worry about admissibility when you gather facts, unless they tell u in the library to consider evidence Don’t just look at the incident, look at background and other types of things. Fact Analysis o Where the law is given or agreed upon, and you are just arguing or disputing the facts. o The best example is a closing argument. TO A JURY: argue facts!!!! ORGANIZATION!!! TO A JUDGE: you can use the law if the judge wants you to use the law. o Opening Argument State the theory of your case in a way that will command the fact finder’s attention, Anticipate defenses
FOLLOW THE INSTRUCTIONS Don’t argue law or facts. Just talk persuasively. In an opening, you tell the story persuasively. Drafting Jury Instructions o Unlikely, they’ve only done it once. The instructions were real poor. BRING COMMON SENSE IN WITH YOU. USE IT. Affidavits = Declarations o LINE 1:Begin by identifying the declarant o LINE 2”Give the Basis for knowledge (for why they are talking) pg. 61. o Don’t give opinion o Sometimes they’ll ask: If there are any facts that can be inferred from the file, include them o Instruction sheets are generic, but you should follow the task memo if they contradict. If you have to make columns, you gotta think about how you are going to do it.
Drafting Documents In California, they may have you draft statutes, contracts, deeds, trust, wills. they are all the same. Every document is about regulating behavior. (1) whose behavior and (2) how. You want to meet a client’s goals. ***they could very possibly have us draft a will Contract. In a RECITAL: see page 72. Trust pg 74.