Sunday, June 26, 2011

The Multistate Performance Test for California, New York and other States

I’ve had a number of questions about the performance tests. Here is an Outline for taking the California PT and the MPT.

Review the Instructions

1. Skim the paragraphs to check the requirements. There is an instruction sheet on the back of every MPT. Read it during your preparation so as not to waste precious time on the exam.
2. Verify the jurisdiction paragraph to know what is mandatory as opposed to what is merely persuasive authority. You must know the court structure before you read the cases so you can determine what is mandatory and what is merely persuasive authority.

Scan the Table of Contents

1. Identify the general area of law. From the listings in the Library, you can often determine the general subject area and use it to inform the rest of your reading. Don’t freak out if the subject area is unfamiliar to you. You’ll be given all the relevant law you need to solve the problem.
2. Determine whether it’s a statutory or common law problem

Read the Task Memo Carefully and Completely

1. Identify the issue you’re asked to resolve. Are there sub-issues? The Task Memo reveals the precise issue you’re asked to resolve. Read these paragraphs two or three times to be certain you have identified the issue. It’s usually in the last 2 paragraphs of the memo. Write the issue on your scratch paper so that you remain focused as you proceed. Be careful not to change or vary the language of the question.
2. Read the directions carefully. You may be asked to identify additional facts. Also, note any exclusions.
3. Identify your specific assignment by noting the precise nature of the task: memo, persuasive brief, client letter, contract provision, etc. Identify your point of view – whether it’s objective or persuasive. This will inform the nature of your reading because you’ll read the materials with a critical eye.
4. Identify your audience – is it a lawyer or layperson?
5. Note any exclusions. Sometimes you are told not to consider a specific issue. Your job is not to discuss it.

Review the Instruction Memo

1. The bar examiners include this memo if they think you need guidance in completing the assigned task.
2. Note for a particular format or structure required for your answer. The memo provides guidelines for opinion letters, persuasive briefs, memos, etc. telling you exactly what to include and sometimes what not to include.
3. If a brief is required, make sure you need to include a statement of facts, a jurisdictional statement or persuasive subject headings. The Instruction Memo will advise whether your persuasive brief requires a statement of facts or not. A persuasive brief might require a factual statement while a trial brief might not.
4. Are there specific examples/models to follow.

Read the Library

1. Although the first part of the exam booklet is the File, you’re going to begin with the Library. Reading the law first informs your subsequent reading of the File. If you read the File first, with its various excerpts from depositions, client communications and attorney notes, it would be very difficult to sift the relevant from the irrelevant information. It would not be possible to know which fact were “relevant” until you knew the law and how the cases in your jurisdictions have interpreted that law. While reading the Library first does not guarantee you won’t have to review it again, it will make your subsequent reading of the File meaningful and immediately productive.
2. Read the cases first. Often, they will explain the statutes that are also in your file, thus saving some time.
3. For each case read the earliest case first and proceed chronologically; verify the jurisdiction to determine whether it is mandatory or persuasive authority for your problem; skim the facts to get a sense of story; identify the statement of the rule including determining if it is element-based or if you need to synthesize the rule from the cases or if it is a multi-part test formulated by the court; note any footnotes.
4. Adapt the rule in the cases to form your outline. Use the elements, the prongs of a rule or the components of a statute to form the roman numerals of your outline. A general outline is then in place as you read the rest of the Library. Add to and refine your understanding of the rule as well as add any exceptions or limitations to the rule as you read the other materials in the Library.
5. Be sure to leave adequate space under each section of your outline so you can add the appropriate facts when you read the File.

Read the File

1. After reading the Library and outlining the rule, you’re ready to read the File and add the relevant facts to the appropriate places in your outline. Use your outline of the issues and rules to keep focused.
2. Write your issue above your rule outline. By reading the File with the issue clearly in place, you can more easily identify the legally relevant facts from the sea of material in front of you. As you proceed, add the critical facts to the appropriate part of your outline.
3. Characterize the legal relationship of the parties
4. Identify the relevant facts based on your knowledge of the law from the library.
5. Add these facts to the appropriate sections of your rule outline.

Begin to Write Your Answer

1. Review the Task memo and make sure your outline incorporated or accounted for each required issue; note the relevant facts; cite applicable legal authority; account for how the law and facts support your theory; and if appropriate, cite contrary authority and distinguish it.
2. Review the Instruction Memo quickly to verify your task format and its required components

Write the Required Response\

1. After completing your reading of the Library and File, you’re ready to begin the task of writing. Your job is to discuss the issues and the controlling rule of law. Here is where you get your points. Don’t waste time by reciting the facts or providing needless background information.
2. Answer the question that was asked of you
3. Adopt the tone and format required for the task
4. Write persuasive subject headings including stating the legal conclusion you want the court to reach and the factual basis on which it can do so; write each point heading as a conclusory statement combining the law with the relevant facts; and write in a coherent, logical and persuasive thesis sentence.
5. Gove adequate treatment to the cases in the Library.
6. Avoid copying passages from cases or statutes.
7. Make the relevant arguments on how the law and the facts support your theory
8. Make sure the contrary authority has been cited and distinguished.
9. Cite to the appropriate authorities for statements of the rule.

Tuesday, June 7, 2011

Organization and Analysis: Essay Writing for the Bar Exam

In order to write a successful essay answer you must learn to organize your answer as your analyze the fact pattern.

Once you read the fact pattern, you will organize your essay, then you must analyze.
This is where you make the outline looking for issues. Look back to the fact pattern for facts which should be used for applying the law and then you can apply the facts to the law.