Performance Test on California Bar Exam: What to Expect

The performance test should be the easiest portion of the California Bar Exam as long as you practice.  It should be what helps you to pass (easy points) - it should not be what prevents you from passing.

I'm not a betting man, but you can be fairly certain that the performance test prompts will ask you to prepare (a) an objective memorandum or letter and (b) a persuasive letter or memorandum of points and authorities (i.e., the argument section of a brief).  Below (after the jump) is a chronological listing of all of the performance test prompts dating back to February 2007.  The actual exams and sample answers are linked to in the headings for your easy reference.

If you study with one of the commercial bar preparation programs, they will probably expose you to a few other oddball prompts (i.e., write an opening argument, prepare deposition questions).  It's always possible that they could throw a curve ball your way (i.e., February 2012 Performance Test B), but this hasn't seemed to be the recent trend.  I have a feeling that such curve balls create too far of a spread and make grading quite difficult.

My advice:  You had better be ready to write an objective memorandum/letter, a persuasive letter, and a memorandum of points and authorities.  These prompts should not surprise you.  You should be able to do these in your sleep and you should breath a sigh of relief when they show up on your bar exam.  HOWEVER, you should also practice one oddball performance test.

California Bar Exam July 2012 Performance Tests

Test A: OBJECTIVE MEMORANDUM: "Please prepare a memo that presents an objective analysis of whether the following actions violate Columbia law or the Attorney General’s proposed requirements..."

Test B: MEMORANDUM OF  POINTS & AUTHORITIES: "Please prepare our proposed memorandum of points and authorities in opposition to the demurrer following our attached guidelines. In anticipation of a demurrer, we incorporated into the complaint all the facts indicating professional malpractice. We have nothing to add. Thus, do not argue that we should be given leave to amend the complaint in order to make additional allegations."

California Bar Exam February 2012 Performance Tests

Test A: OBJECTIVE MEMORANDUM:  "Please draft a two-part memorandum to prepare me for my upcoming meeting with Mr. Swayne."

Test B:  CLOSING ARGUMENT:  "Please write out the argument exactly as you would give it if you were presenting it.  It might be helpful to read the Library first.  You need to understand the elements of each charge in order to understand how each witness' testimony establishes the facts necessary to support our argument that each of the elements has been proven beyond a reasonable doubt.  Follow the guidelines contained in the office memo on Closing Arguments: Bench Trials."

California Bar Exam July 2011 Performance Tests

Test A:  OBJECTIVE MEMORANDUM:  "Please draft a memorandum analyzing the issues raised by Mr. Quillen’s questions. For each question, be sure to state the likely outcome. There is no need for an introductory statement of facts in your memorandum."

Test B:  MEMORANDUM OF POINTS & AUTHORITIES:  "Please draft a memorandum of points and authorities opposing counsel’s expected motion to compel arbitration. Follow the firm’s guidelines for persuasive memos that is attached."

California Bar Exam February 2011 Performance Tests

Test A:  OBJECTIVE MEMORANDUM:  "Please draft an objective memorandum that analyzes the legal and factual issues related to each of the four Grounds of Relief asserted in Enviroscan’s petition. Be sure to include in your memorandum an analysis of which party (SESA or Enviroscan) is likely to prevail on each of these grounds."

Test B:  MEMORANDUM OF POINTS & AUTHORITIES:  "Please draft a persuasive memorandum of points and authorities that argues that the IJ’s decision should be reversed. The regulations provide the framework for the issues that have to be addressed on appeal. In your memorandum, be sure to address each of the regulatory requirements for establishing the right to asylum, show how the available facts support our client’s position, indicate how the IJ erred, and show why the BIA should reverse."

California Bar Exam July 2010 Performance Tests

Test A:  PERSUASIVE BRIEF:  "Please draft the brief supporting our position. You need not include an additional statement of facts at the beginning of your brief."  [Note:  This is essentially the same as a memorandum of points and authorities.  Don't let the switch in terminology throw you off.]

Test B:  OPINION LETTER:  "Please draft an opinion letter, in accordance with our guidelines, addressed to Black, answering the questions she asked in the interview."  [Note:  This is essentially an objective memorandum, but the audience is your client rather than a partner.]

California Bar Exam February 2010 Performance Tests

Test A:  LEGAL OPINION:  "Please prepare my opinion for the parties consistent with ENE Rule 5-2(c). To be effective the ENE opinion must persuade the parties that it reflects the probable outcome if the case were to proceed through discovery and to trial. An opinion that says ―on the one hand this and the other hand that‖ and that does not reach a conclusion will not lead the parties to appraise their chances realistically and negotiate sensibly."  [Note:  This is essentially a memorandum of points and authorities, but from the judge's perspective rather than an advocates.]

Test B:  MEMORANDUM OF POINTS & AUTHORITIES:  "Please draft a memorandum of points and authorities in opposition to Rettick‘s motion, making sure to follow the firm‘s instructions. Present our best arguments, and rebut each of Rettick‘s arguments, including any of his unsupported legal or factual assertions."

California Bar Exam July 2009 Performance Tests

Test A:  PERSUASIVE BRIEF:  "Following the guidelines set forth in the attached memorandum regarding persuasive briefs in support of motions for summary judgment, please draft a Statement of Uncontested Facts and a persuasive brief in support of our motion in which we argue that the one-page letter is not enforceable as a contract, varies the one-year term of the policy, and is not a sufficient basis for Farley’s fraud allegation."  [Note:  Again, this is essentially a memorandum of points and authorities.  Don't let the terminology throw you off.]

Test B:  OBJECTIVE MEMORANDUM:  "Please prepare an objective memorandum for me that analyzes whether any defenses to Ms. Williams’ claim for defamation based on privilege are available." 

California Bar Exam February 2009 Performance Tests

Test A:  MEMORANDUM OF POINTS & AUTHORITIES:  "Following our firm‘s guidelines, which are attached, please draft a persuasive memorandum of points and authorities in support of our client Pannine‘s motion for a preliminary injunction."

Test B:  OBJECTIVE MEMORANDUM:  "Therefore, in order to help me prepare for this meeting, I would like you to draft a counseling memo in accordance with the guidelines set forth in our office policy, which is attached."

California Bar Exam July 2008 Performance Tests

Test A:  OBJECTIVE MEMORANDUM:  "Please write a memorandum that evaluates his possible civil claim against Savings Galore. Your memorandum should do the following..."

Test B:  MEMORANDUM OF POINTS & AUTHORITIES:  "Please prepare a draft of a persuasive Memorandum of Points and Authorities that argues the motion should be denied.  Arguments on motions to suppress require a detailed showing of how the facts in the case relate to specific factors identified by the courts in suppression cases. Therefore, your memorandum should relate specific facts to those specific factors and conclude how your analysis would establish that the evidence should not be suppressed. Where appropriate, explain how the defendant’s version of the facts is not credible. Finally, take care to anticipate arguments defense counsel is likely to make and explain why they are not persuasive."

California Bar Exam February 2008 Performance Tests

Test A:  MEMORANDUM OF POINTS & AUTHORITIES:  "I need your help in drafting certain sections of our memorandum of points and authorities in opposition to the demurrer. I have attached for your reference our office guidelines for drafting Persuasive Briefs and Memoranda. Please draft those portions of the memorandum that persuasively argue that..."

Test B:  OBJECTIVE MEMORANDUM:  "Please write me an objective memorandum in which you analyze the likelihood of obtaining a preliminary injunction based on retaliatory employer action in violation of Dr. Snyder’s First Amendment right to free speech under the State of Columbia Constitution."

California Bar Exam July 2007 Performance Tests

Test A:  OBJECTIVE MEMORANDUM:  "I haven’t yet decided how to rule on the motion. Please prepare an objective memorandum that analyzes the legal and factual issues raised by the motion to

disqualify plaintiff’s law firm, NCHC. After objectively analyzing each issue, your memorandum should conclude with a recommendation as to how I should rule."

Test B:  PERSUASIVE LETTER:  "Please prepare a letter to Mr. Philmore that persuasively explains that our clients should get their father’s entire estate because..."

California Bar Exam February 2007 Performance Tests

Test A:  MEMORANDUM OF POINTS & AUTHORITIES:  "Please prepare our memorandum of points and authorities in opposition to the motion for a preliminary injunction, following our attached guidelines. Your memorandum should present our best arguments, and at the same time, address each of the arguments made in Phenom’s brief to preclude our use of the voicemail as evidence..."

Test B:  OBJECTIVE MEMORANDUM:  "Your task is to draft for me an objective memorandum analyzing whether Mr. Schaeffer’s agreement not to work for a competitor and the forfeiture provisions of the Ergometrix stock option plan are enforceable against Mr. Schaeffer."