Adam Ferber is the former Examinations Director for the State Bar of California and grader of 40 California Bar and First-Year Law Students’ Examinations. He provides intensive, individualized tutoriing and coaching to applicants for both exams. Contact Adam at www.ferberbarreview.com or, on Facebook at Ferber Bar Review – Student Resource Group.
“I took the road less traveled by, and that has made all the difference.” Robert Frost
I’m sure you like to figure out how things work. So, let me ask you this: In all your preparation for this bar examination that will mean so much, have you ever actually tried to figure out how the performance test works? And if you could, would it change your approach to writing your answer? Would you take “the road less travelled by?”
Take “the File.” It tells a story, but it tells it all out of whack. If you were the narrator, one story might go like this. After a workout at their gym, two acquaintances go out for a beer. Tom agrees to lend Byron his car to go to a job-related meeting. The meeting happens to be at a bar though, where Byron drinks more beer. On his way back to return the car he uses the car to run an errand. Then…guess what? He hits a pedestrian, and all hell breaks loose. This performance test – PTA from the February 2005 California Bar Examination – is the result. Check it out at: http://admissions.calbar.ca.gov/LinkClick.aspx?fileticket=D8Nvfy-KI%3d&tabid=2269
While you’re doing that, think about how the File works.
This File, as do all others, scrambles a smooth, chronological narrative into out-of-order pieces. Those pieces have names: In this PT, “memorandum,” “police report,” “Medical Center” admitting form.” If you attempted to answer this question, you’d read those pieces in the “out-of-order” into which the drafters arranged them. And then you’d outline them. How?
Here’s one way that you might not have thought of. Instead of (or in addition to) your present outlining technique, reassemble the scrambled pieces into the original story. What happened first, then second, and so on. Your effort doesn’t have to be extensive - just enough to get you thinking about “the story” as well as “the facts.”
With the chronology in hand you may notice:
- That if the question calls for a summary of the facts, your summary will be more comprehensible. Moreover, it will exhibit a necessary analytical skill – giving coherence to the disaggregated “factoids” you might pick up from a police report or deposition transcript as a practitioner;
- That your answer writing efforts to use the facts will likely be more effective if you remember them in the order that you’d normally expect them to take. You may recall facts more quickly; and
- That your discussion style may be less “exam-like” and more “lawyerly,” if you’ve had even the brief chance to think about the question as a situation that occurred in real time.
Does this seem counter-intuitive to the techniques that you’ve been taught? Are you concerned that it might cost you time that would be better spent elsewhere? Both reactions are to be expected. However, if it also sounds intriguing or potentially helpful, why not try it once or twice as you prepare this month. If it works for you, you’ll be walking successfully down “the road less traveled by,” on your way to a passing grade.
Copyright 2010 Adam Ferber and www.ferberbarreview.com. Reprinted by permission.
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