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Calling all Law Students:
Are You Ready for Scenario Three?

by Professor Sara J. Berman-Barrett^*

• Scenario One: "Ms. Wilson, you're on today. Tell your classmates the relevant facts of Hadley v. Baxendale."



• Scenario Two: "Mr. Johnson, are you really trying to say that Cardozo's position in Palsgraf makes more sense than the Andrews dissent? Why is that?"



• Scenario Three: "O.k., Wilson, Johnson, Smith, and the rest of you: In this hypo, we represent the plaintiff in a breach of contract action. Read and brief these three cases, study these 18 pages of resource documents in the attached case file, and be sure to pay close attention to the transcripts of the client and witness interviews. Then, draft the Statement of Disputed Facts and Argument portions of an Opposition to the Defendant's Motion for Summary Judgment, and draft Declarations in support of our opposition pleading from each of the potential witnesses that might possibly testify in our client's favor. Be sure all the documents you draft are complete, well-reasoned and ready to file with the court. By the way, you have three hours. Go!"

If you are like most law students, you are well acquainted with Scenarios One and Two. Been there, done that! But what about Scenario Three? Unrealistic you say? No professor would ever ask you to do that? Perhaps not, but that's just what the Committee of Bar Examiners asked students just like you to do on the February 2002 California Bar Exam.

Panicked? If so, you're in good company. The overall pass rate on that February 2002 Bar Exam was only 33.4%. There are no outlines or cheat sheets to give you summaries of the cases on the Bar Exam, no time to clear your throat while you hastily read the casebook and hope for wisdom to hit before the professor humiliates you, no Instant Messages from classmates to help you out when you're on the hot seat. You're all alone. The buck stops here.

When I went to UCLA Law School, I was one of the fortunate ones whose first year legal research and writing professors actually knew enough about the performance test portion of the Bar to include performance tests in the work we had to do that year. By the time I got to the Bar, I actually could (and did) say to myself, "Been there; done that." And most importantly, "I can do that!"

But a lot of professors don't know much about the performance test, and many downplay it. Yet one-third of your Bar Exam is comprised of performance tests! By the way, if anyone says the performance tests are the easy part of the Bar, find out how old they are. If they're over 50, chances are they didn't take one! The performance test has only been a mandatory component of the CA Bar Exam since 1983.

So what can you do about this? Well, first off, clerk. Even if it's an unpaid position, working in a law firm is a win-win. You will be exposed to many of the documents you will have to draft on the performance test, and, if you do a good job, you'll have made an invaluable contact for reference letters when you graduate.

Second, consider taking as many as possible of the clinical course electives that your school has to offer. Trial advocacy and other clinical classes will help you get ready for this portion of the Bar Exam. (Look at the credentials of the law professors who helped create the first Performance Tests and see how many of them run the clinical departments in their law schools! I know because I was fortunate enough to have two of them as my own professors at UCLA, Paul Bergman and David Binder.)

Third, practice a ton! It's never too early to start. Being able to write passing answers to performance tests is not a talent you're born with; it is a skill you train. And you get better and better as you practice. The bar is a marathon; not a sprint. Training starts in your first year of law school. Get copies of old performance tests and try to do at least one or two every year during law school. That way, when you see the performance tests in bar review, they will indeed be a review and not a bucket of cold water dumped on your head! That way, when you are faced with Scenario Three, you too can say, "Bring it on!"