What are Performance Tests?

Performance Tests are practical, skills-oriented exams that are included in more than half of the State Bar Examinations in this country. California included a performance test component as an experimental portion of the California Bar Exam in 1980, and the Performance Test became a standard part of the California Bar Exam in July 1983.

At present, California's Bar Examination includes two 3-hour performance tests, and some 30 other jurisdictions include one or more ninety-minute performance tests (from the Multistate Performance Test (MPT), developed by the National Conference of Bar Examiners).

The idea behind the performance test is to test those skills applicants would actually use as attorneys, to test their abilities to handle problems and concerns of clients. To do this, on a performance test applicants are asked to: 1) place themselves in the role of a legal professional, 2) read and analyze a set of written materials (factual resources and legal authorities), and 3) draft some document(s) based upon information from those written materials.

Often, Bar Exam applicants are asked to assume the role of a beginning associate in a private law firm, however on some performance tests they may have to play the role of a prosecutor, public defender, law clerk to a judge, legal advisor to a legislator, mediator, or another legal professional.

The skills that applicants must possess to pass a performance test question include factual analysis, legal analysis, problem solving, awareness of professional responsibility obligations and the ability to resolve ethical issues, time management, organization skills, reading comprehension, and clear and effective writing.

Performance tests are usually comprised of a set of Instructions, a File and a Library. The file includes factual resource documents such as transcripts of client and witness interviews, pleadings, trial or deposition transcripts, newspaper articles, police reports, photographs, letters, internal notes, memoranda and correspondence, medical records, and the like. These documents may include contradictory or inconsistent facts and may not be complete, and, as such, may require further development or investigation as part of the applicant's task or tasks. Performance test files also typically include a great deal of irrelevant information, thus requiring applicants to sort relevant from irrelevant facts.

A performance test library typically includes cases, statutes, administrative regulations, law review articles and other legal authorities. The performance test library may include authorities that are binding and some that are merely persuasive, and the applicant is expected to know and understand the holdings and rules and distinguish holdings from dicta, as well as to weigh and discern the precedential value of the given authorities.

At the end of the time allotted, applicants may be expected to complete one or more of the following types of tasks: a legal memorandum, a trial or an appellate brief to the court, a proposal of settlement to an opposing counsel, an analysis of a contract, will, lease or other document, a discovery or investigation plan, a letter to a client, an opening statement or a closing argument. (For a complete list of all the tasks applicants have been asked to draft on past California Bar Exams, please see 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 Exam, along with a number of recent practice exam questions and model answers.

Note: All of the following jurisdictions include a performance test component as part of their Bar Exams:

*CA tests applicants with two 3-hour performance tests, created especially for the California Bar Exam.  The other jurisdictions listed use one or more 90-minute multi-state performance tests, created by the National Conference of Bar Examiners.