|How to Read a PT||
According to the state bar, the performance test consists of reading, organizing and writing. Most of us have been reading since we were about 6, so you’d think we would have the reading part of the exam down. But how you read each piece of the exam – how fast and with what attitude – makes all the difference. Let’s go through the parts of the performance test to show you what I mean.
|The table of contents||
Did you know that the black bars along the right edge of the table of contents line up with the beginning page of that document? These tabs act like thumb-holes in dictionaries to assist you to locate any document in the file or library faster. If you have taken a course to prepare you for the PT or you have taken PT exams, and this information is news to you, it should lead you to wonder what else you may not know about the PT exam that might help you to pass it.
Why would the examiners go to the trouble of giving you these tabs? The tabs help you to navigate through the material. It indicates that succeeding on the performance test requires more than simply reading it once, cover-to-cover. The tabs help you to refer back to facts in the file and authorities in the library as you see how the law and facts fit together.
|The Assignment Memo||According to the inventor
of the performance test, Armando Menocal, the
committee that finalizes each performance test
spends ten times as long perfecting the wording
of the performance test as it does the entire
rest of the exam. That should tell you how
important this document is. Reading it once
is not enough, no matter how carefully you
do that. It contains subtle information that
you can only see after you have read the remainder
of the file and library. In most PTs, the Assignment
Memo tells you the names of some or all of
the issues, or tells you where the issues can
be found. This makes the Assignment Memo the
Rosetta Stone of the PT—the most important
couple of pages in the entire exam. Read it
three times: when you first read the file,
then after you have read the file and library,
then again when you want to identify the issues.
Most people read the file too slowly. The state bar’s instructions tell you to spend 90 minutes reading and organizing. But most people make the mistake of taking almost the entire time to read. Because the file comes first, and because people are more comfortable reading a story, they read it way too slowly. I think applicants misunderstand the instruction that puts reading and organizing in a single time block. Most of us have not had much experience with open-book exams. You don’t read an open-book exam as slowly as you would an essay exam. You are expected to return to the material when you know how you want to use it. The first time you read the file you are noticing facts that may be important and marking the location of those facts. You can read this much faster than you normally would.
The time allocated to reading needs to be divided into phases. The first reading is to gather information. Then the file and library must be selectively re-read as part of the organizing phase. So the order of events is more like: read; re-read to find the issues; re-read to find the law that addresses each issue; then re-read the facts to assign facts to legal elements. Re-reading the material in this way certainly makes the black tabs on the table of contents useful!
Many performance tests contain instructions as to exactly how the finished product should be organized. The examiners are doing you a favor! Study the format instructions and copy them shamelessly. But be aware of what the format is not: It is not a guide for organizing your analysis.
Everyone understands generally that the law in the library is used to resolve the factual problem. But I don’t think they really get that the facts and the law match up perfectly, like fingers in a glove. In real-life legal research, you have a factual problem and you look for cases that somewhat fit the argument you want to make. You may read six cases for every one that is useful and even then you probably have to argue by analogy. But the PT is a closed universe. It may even be more accurate to say it’s a perfect universe. Every legal authority applies. It is rare that you need to analogize or distinguish a case rule.
Think of a television cooking show, where all the ingredients are pre-measured and set out on the table. It all goes into the dish with nothing left over and nothing missing. That is how the factual problem and the library fit together. Unlike a cooking show, however, the challenge for the applicant is sorting which law goes to which legal issue and which facts go under the elements of a law.
It is this process of sorting that must be done in order to analyze the performance test problem and that has to be done before you write your answer. The formatting document only comes into play in the last stage, when you write your answer.
|Legal pleadings and demand letters||The linking of
law and facts is made easier by discovering
the issues. The assignment memo generally names
some or all of the issues, but sometimes it
calls your attention to a legal pleading or
demand letter from opposing counsel. Pay very
close attention to them, because they frequently
name the issues for you. Finding the issues
under which the law and facts sort is the key
to analysis. You don’t have to invent
the issues; they are named in every PT. Knowing
where to look for the issues is a tremendous
|Library table of contents|| Same black tabs as
in the file table of contents.
there are statutes, don’t read them in
detail just yet. There may be a case that discusses
the statute that makes the statute much easier
to understand. Most PTs depend on case law, not
Most people read cases from beginning to end at the same speed throughout. They mark everything that looks important in a case, briefing it as they did in the first year of law school. They never get a really clear idea of what a case stands for because they see ten things to take from a case instead of one. Until you are clear on the one rule or test that is the most important thing to take away from a case, you cannot see how it lines up with an issue and with the facts.
Performance test cases, like those in real life, have wording signals that lead you directly to the rules. Through experience you can spot these wording signals – and the rule of the case -- immediately. Here are some examples. When a case cites a statute in the PT library, the rule will be very near the citation. Similarly, when a case cites another case with approval, the rule is the quote from the cited case. Then there are wording cues, some as blaringly obvious as, “the rule is unyielding…;” and “this leads to a two-part inquiry….” Another way of finding the rule is to see where the court begins to start analyzing the facts. You will find the rule right above this point. Once you realize that all you need from any case is one rule or test and you practice finding the signals for finding the rule, you can save enormous amounts of time in the library.
Finding the right rule or test is crucial. Your legal reasoning will be off-base unless you find the rules. For this reason, you should spend twice as long reading the library as you do reading the file. Remember the first reading of the file was simply to locate the facts; you will return to the file to pick the facts that prove or disprove elements of the legal tests.
|Read the file then the library||
Law is harder to comprehend than facts. You make your life harder if you try to read the library before you know the facts in the file. Since the main problem I see is that people don’t pick out the right rule of the case, I suggest you get all the help you can in reading the cases. Frequently you’ll be able to recognize the correct test because the facts that the PT case applies to it are very similar to the facts in your PT problem.
Performance tests don’t have to feel like a spin of the Wheel of Fortune. Understanding the exam better and practicing these reading skills can turn performance tests into your secret weapon for passing.
|Author's Bio|| Vivian Dempsey passed the California
Bar Exam in 1978. When she was a bar grader,
she took performances tests when the exam was
under development She later was a bar grader
of performance tests. She teaches The Writing
Edge in Berkeley and LA (or as a home-study course),
which covers the essay and performance tests,
and is the author of ‘Performance Test
©1997-2017 Vivian Dempsey. Phone: 510-219-7795
The Writing Edge All rights reserved.