Performance test (bar exam)

The performance test or "PT" is a section of bar examinations in the United States that is intended to mimic a real-life legal task that future lawyers may face. Of the three parts of most states' bar exams -- MBE, essay, and performance test—the performance test is supposed to be the most reflective of how well a candidate will perform outside of an academic setting.

For other uses, see Performance testing (disambiguation).

A performance test may include tasks such as writing a legal memorandum, drafting an affidavit, or drafting a settlement offer letter to opposing counsel.

One problem with performance tests is that if they actually tested the current law of a state as it relates to a specific subject, bar applicants who attended law school in that state and took a course focused on that state's law on that subject might have an unfair advantage over applicants who did not. In other words, the performance test would be testing applicants' understanding of current state law, as opposed to their lawyering skills. To mitigate that advantage, performance tests normally use the law of a fictional state, and its law as provided in the test materials usually has subtle differences from the law in the real world in order to reduce the advantage of having already studied that subject matter in law school. This forces applicants to demonstrate their ability to interpret and apply the law as they find it, rather than the law they already know.

California Bar Examination performance tests

Until 1983, the California Bar Examination was only two days long and had no performance test. During that era, it was criticized as too abstract and failing to test too few skills relevant to the actual practice of law, and was also criticized for disproportionate impact on persons of color.[1]

In July 1980, the State Bar of California conducted an experiment with 485 bar applicants who volunteered to participate in performance tests in addition to taking the regular bar exam. To give applicants an incentive to participate, the experimental performance tests could only increase but not decrease their chances of passing the bar exam. The experiment was led by UCLA School of Law professor Paul Bergman and RAND Corporation psychometrician Stephen P. Klein. Based on their results, the State Bar added a three-hour-long performance test to the July 1983 bar exam administration.[1] California performance tests are usually situated in the fictional state of Columbia.

Through February 2017, the California bar exam spanned three days, and included two performance test sections, one the first day (Tuesday) and one the last day (Thursday). Each PT lasted three hours—for a total of six—and the two PTs were worth 26% of the total score. The types of tasks presented are:

  1. Legal memorandum
  2. Persuasive brief
  3. Declaration or affidavit
  4. Closing argument
  5. Opening statement
  6. Jury instructions
  7. Witness cross or direct examination
  8. Discovery/investigation plan
  9. Client letter
  10. Client or witness interview
  11. Negotiation, settlement proposal or agreement
  12. Analysis of a contract, will, trust or statute
  13. Legislation
  14. Alternative dispute resolution task

Each PT has a file and a library. The file contains factual materials about the case while the library contains the legal authorities needed. The candidates can either hand write or type using a laptop.

Effective July 2017, the California bar exam was reduced to two days, with a single 90-minute performance test administered on the first afternoon (Tuesday).[2]

Multistate Performance Test
Main article: Multistate Performance Test

This is a test drafted by the National Conference of Bar Examiners (NCBE), modeled after the California test and intended as a supplement to NCBE's Multistate Essay Examination. NCBE currently offers three different performance tests, each 90 minutes long (as opposed to three hours in California). As of July 2007, 33 jurisdictions use the MPT. The MPT is usually situated in the fictional state of Franklin.

References
  1. Ward, Stephanie Francis (8 January 2020). "A better bar exam? Law profs weigh in on whether test accurately measures skills required for law practice". ABA Journal. American Bar Association. Retrieved 22 September 2020.
  2. Hansen, Mark (28 July 2015). "California bar exam to be one day shorter, but could be just as difficult". ABA Journal. Retrieved 10 October 2020.

Sources
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