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So You Want to Practice Law in California?

A Guide for the Attorney Applicant

by Professors Sara J. Berman-Barrett and Steven Bracci

If you are an attorney admitted to practice law in a jurisdiction outside California, you are what the Committee of Bar Examiners here in California calls an "Attorney Applicant." What does that mean? Bottom line: You have to take the first and third days of the California Bar Exam, but you may be able to skip Day Two, the MBE.

The California Bar Exam tests the following subjects:

Real Property, Evidence, Torts, Contracts, Criminal Law, Criminal Procedure, Constitutional Law, Community Property, Professional Responsibility, Wills, Trusts, Civil Procedure, and Corporations. Remedies is tested in conjunction with Torts, Contracts and Real Property.

While the MBE tests only the first seven subjects listed here (Real Property, Evidence, Torts, Contracts, Criminal Law, Criminal Procedure, Constitutional Law), all of the subjects listed above may be tested on the Essay portion of the California Bar Exam. Additionally, the substantive law on any given performance test question may involve one of these subjects listed above, or any other subject. (Past exams have included subjects as diverse as maritime law, family law, and veterans' disability benefits.)

Out-of-state lawyers must apply to the State Bar of California and complete registration and application forms as an "attorney applicant." (For all the detailed rules, go to the State Bar's Website www.calbar.ca.gov. Attorney applicants also have to complete and pass the moral character requirements for the state of California. Generally, attorney applicants must also take and pass both the Multistate Bar Examination ("MBE") and the MPRE, the Multistate Professional Responsibility Examination. However, some attorney applicants will be allowed to take what is called the "Attorney's Examination" and skip the MBE portion.

To qualify for the Attorney's Examination, the out-of-state lawyer must have been active and in good standing in another jurisdiction of the United States for at least four years immediately prior to taking the California Bar Exam. If you have not been admitted for four years or are not in good standing, or are a foreign attorney, you must apply to take the full general California Bar Exam.

Performance Test is Key Obstacle for Attorney Applicants

The performance test portion of the Bar Exam, that part designed to simulate actual lawyering skills, tends to throw lawyers more often than one would think. Hard to believe, but it is true. Ask bar review experts and law professors who have led thousands to successfully pass what many acknowledge is the most difficult Bar Examination in the nation, and you will find story after story of lawyers, and even judges, licensed to practice in other jurisdictions, who fail the California Bar Exam because of low scores on the Performance Tests.

What is a Performance Test?

The performance test was launched experimentally in California in 1980 and became a mandatory component of the California Bar Exam in July 1983. The idea behind the performance test is to test those skills applicants would actually use as attorneys, and to test their abilities to handle problems and concerns of clients. Thus, on performance test questions, applicants are asked to:

1. Place themselves in the role of an attorney handling a client's case (usually a beginning associate in a private law firm, but in some past performance tests, applicants have been assigned tasks as prosecutors, public defenders, judicial clerks, or legislative aides);



2. Read and analyze written factual information and legal authorities (often between 20 and 40 pages of a client "File" and "Library"), synthesize that information, and in three hours time;



3. Draft one or more well-organized, thorough and detailed documents based upon information from the written materials.

Since 1983, the performance test has spanned the range of legal topics, from the more familiar (torts, contracts and wills), to those more unusual topics (sports law, environmental law, and admiralty law). There was even one performance test on the rule against perpetuities!

Why Attorney Applicants have difficulties with Performance Tests

There are several reasons that attorney applicants have difficulties on the performance test portion of the California Bar Exam:

1. Attorney Applicants think that since they practice law, they don't have to train for this portion of the Exam.
   
   Many attorney applicants train harder for the essay portion than the performance tests because they realize that they have been out of school for some time and that they have not taken an essay question for a while. Also, people have to review the substantive law, so doing practice essay questions provides a review of the substantive law as well. However, because many attorney applicants are out in the real world doing work like that tested on the performance test, they assume they do not need to practice these questions.
   
   That's a mistake. No matter how much real world training you have, you need to be familiar with the exam and the time constraints, know what you face and prepare for it. There is a lot of material to cover, and the Bar Examiners expect very well written answers—and three hours goes fast!



2. Attorney Applicants (like many general applicants) mistakenly assume that the performance test is the "easy" part of the California Bar Exam.
   
   The performance tests are "open book." The law is given to you in the Library. So, performance tests are easier on your memory than the essay questions are. That does not mean performance tests are easy.
   
   If you believe the performance tests are easy, just one question: Have you taken one and completed a passing quality answer in three hours time? The Performance Test might be easy if people had three days rather than three hours in which to complete it. Most people, however, even practicing lawyers (and sometimes especially practicing lawyers who have gotten used to being able to do all-nighters if they need to in order to get something right), find it challenging (to say the least) to draft complete and well-written answers to performance test questions in the time given.
   
   Also, each essay is worth 6.5% and each performance test is worth twice that amount, 13% . That means if you do very well on one performance test, you can essentially fail two essays and still pass the Bar Exam. (Though composite scaled scores may be lower, on any one particular essay or performance test question, a 70 or above is considered a passing score and a 65 or below is considered a failing score. So, if you were to score 60s on your contracts and real property essays or suffer perhaps a momentary lapse on some UCC provisions, you could still pass the Bar Exam easily with just one 80 on one performance test.
   
   However, you cannot afford to score even slightly below passing on this part of the Exam or else you put yourself in a hole that requires you to do a superior job on two separate essay questions to put yourself back on the passing track. Let us say that you are tired on Tuesday afternoon and you do not finish the performance test, or you finish but your analysis is not thorough enough to meet the Bar Graders' standards, and you get a 60. You would have to get two separate scores of 80 or better on two essay questions to remedy the deficit caused by that one performance test. And, it is not easy to get an 80 on anything on the California Bar Exam.



3. Attorneys are used to giving the "bottom line" and not necessarily detailing their thinking process. This true story might make the point clearer than anything else: Senior Partner takes the new associate to lunch, first day on the job. After lunch, as they're leaving the restaurant, Partner tells Associate a tiny bit about the client in question and says, "Now, the File is on your desk. I want to know if the client will win. Just get me the answer. Don't waste the client's money on one of those "flowery memos" they had you do in law school."

What Attorney Applicants need to do to pass this portion of the Bar Exam.

First and most importantly, treat the performance test portion of the Bar Exam as seriously as you do the other portions of the Bar!

Second, obtain 4-5 performance tests. You can get performance test questions and model answers from the State Bar's website or in PASS the Performance Test, a comprehensive, innovative home study guide and workbook, which includes detailed instruction on how to master the lawyering skills necessary to pass the performance test portion of the bar, along with a number of recent practice performance tests and model answers. PASS the Performance Test is available through Legal Books Distributing at 323-526-7110 or 800-200-7110 if calling from outside Los Angeles.

Next, review the performance test questions. Get a sense of how much work you have to do in the time allotted and learn the timing. (You need to spend enough time to do a detailed analysis of both the facts and law but save enough time to produce a thorough, complete and legible answer. The Bar Graders expect well-written answers, with complete thoughts drafted in complete sentences. Check out published answers from the Committee of Bar Examiners, and see what quality of work product is expected of you.

Then, take at least two complete performance tests as simulated exams. In other words, take three hours and three hours only, take no breaks, and produce a complete written answer that is your best work by the end of the time you have allotted. Then, submit them for grading and critiquing to someone familiar with Bar Exam standards.

Lastly, take a bar review course that covers the performance test.