The Surprising Virtues of the Performance Test as Teaching Tool

It’s harder to come up with relevant images for this blog than you might think. This image, incidentally, is not relevant. Thanks to the folks over at Cute Overload:

This is the first in a series of posts in which I want to describe the ways in which the Multistate Performance Test (PT)—which at first blush might appear to be nothing more than a particularly onerous portion of the bar exam—can serve as powerful teaching tool in a wide variety of settings.  In particular, my experience has been that the MPT provides a surprisingly effective vehicle for achieving some of the core pedagogical goals outlined in the 2007 Carnegie report on improving legal education.  In addition, I have found that work with the MPT can greatly increase law students’ sense of professional competence and confidence.

As I have worked on this post it has continued to grow in length and scope, making it a good candidate for serial treatment.  Today I want to start with a description of the MPT and the legal skills it calls upon.  Next I will describe the observations and recommendations of the Carnegie report aimed at improving legal education.  Then I will explain how I see work with the MPT as an effective tool in implementing the Carnegie recommendations.  I would also like to discuss the particular challenges students face in working with the MPT, and how overcoming these challenges can build a practical and well-founded sense of confidence.  Finally, I would like to propose possible methods of further researching and verifying these anecdotal observations.

Features of the NCBE Performance Test

“Performance test” can be used as a generic term to describe any sort of exercise that tests one’s competency through simulated problem solving.  For example, some legal employers have adopted the practice of requiring job applicants to draft an analysis of a hypothetical problem as part of the application process.

The subject of this post is the Multistate Performance Test, a specific type of performance test exercise drafted by the National Conference of Bar Examiners (NCBE) for use on state bar exams.  And indeed, the MPT is a component of the bar exam in the majority of U.S. jurisdictions, including Colorado.  See (listing 34 jurisdictions that use the MPT).

The MPT complements the two other components of most states’ bar exams: multiple-choice questions and short-answer essay questions.  Both of these require applicants to memorize and recall a large volume of legal rules, both familiar and obscure.   The MPT, by contrast, is knowledge-neutral.  Applicants are given all of the substantive information they need to complete the exercise, shifting the focus to their skill in applying that information to solve a particular problem.

In concrete terms, the MPT is formatted as a booklet that contains a law library, a fact file, and a memorandum describing the task that applicants are to complete.  The law library will consist of some combination of constitutional provisions, statutes, regulations, and/or case law.  The fact file will contain items like investigative reports, documentary evidence, client interview notes, and deposition transcripts.  Typical tasks assigned include drafting an objective memorandum, a client letter, a persuasive brief, or a mediation statement.   More obscure tasks might include drafting a will or an opening statement to a jury.  By “obscure” I simply mean types of documents that recent graduates are less likely to have worked with during the course of their law school careers.

Applicants are given only 90 minutes to read and digest the task memorandum, law library and fact file; organize their analysis; and draft the work product in the appropriate voice given the type of document and its audience.  Thus, in addition to challenging applicants with a potentially unfamiliar area of law and/or an unfamiliar task, the time-pressure is substantial.

In describing why it created the MPT as an optional component of state bar exams, the NCBE explains:

The content of performance tests (PTs) is appropriate for assessing fundamental lawyering skills, and PTs could provide valuable supplemental information for making decisions regarding admission to the bar (see Kuechenmeister, The Bar Examiner, May 1995, p. 29).

PTs can be graded as reliably as essay questions, and the PT measures an important ability that is related to but not fully measured by essay examinations or the MBE (see Smith, The Bar Examiner, May 1995, p. 41).

Applicants believe PTs are a better measure of their ability to perform as attorneys than either the MBE or essay examinations and favor including PTs on the bar exam (see Kunce and Arbet, The Bar Examiner, May 1995, pp. 44-47).  Thus, the MPT was designed as a tool for summative assessment of a bar applicant’s lawyering skills after completing law school.

But despite these relatively focused origins, I have found practicing and reviewing the MPT to also be an effective vehicle for teaching a variety of transferable skills, including how to:

– efficiently and accurately read and understand different sources of law

– resolve the relationship between competing and complementary sources of law

– logically organize an analysis

– quickly separate relevant from irrelevant facts

– write in a direct, economical style

– determine when a task calls for persuasive versus objective voice, and how to draft each

– draft an analysis that is responsive to your client’s needs

– balance advocacy for your client against the necessity for candor with the tribunal and opposing counsel

In addition to the above, the MPT has proven exceptionally useful in formative assessment and self-assessment, as well as summative assessment during the course of law school, as I will discuss at greater length below.

Accordingly, I am advocating for expanded use of the MPT as a teaching tool well beyond the several weeks during which graduates are preparing for the bar exam.  Instead, work with the MPT and MPT-type exercises can be an important supplement to law school teaching techniques beginning in the 1L year and continuing throughout the upper level curriculum.

Broader incorporation of the MPT and MPT-type exercises into the law school curriculum is highly advisable because the MPT is a compact, easily deployed vehicle for providing the sort of integrated learning experience recommended by the Carnegie Report.


One response to “The Surprising Virtues of the Performance Test as Teaching Tool

  1. I’m glad to see new posts on this blog!

    I found the PT training and exercises extremely helpful for my other legal writing. It helped me realize that legal writing has little to do with finesse or style and much to do with efficiency. Transition words are vital. Sentences can be short. Vocabulary can be elementary. Legal writing doesn’t need variety in word choice. In fact, repetition can be one of the most effective cues for readers (e.g. Issue always starts with “The issue is whether…” Rule always starts with “The rule is…” Application always starts with “Here,…” Conclusion always starts with “Thus…” It seems plain and boring, but it communicates the ideas more quickly and clearly.

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