Persuasive Briefs on Performance Tests

On many occasions bar exam applicants have been asked to draft a persuasive brief or memorandum of points and authorities for the performance test portion of the California bar exam. 

For example, in California July 2005 Performance Test B, applicants had to draft a memorandum of points and authorities for the case Property Clerk v. Paul and Sarah Grinnell, involving a man who drove under the influence of alcohol and then had to forfeit his vehicle. 

When drafting a brief or memorandum of points and authorities, a bar exam candidate scores high when s/he follows organization instructions, knows how to use the facts, applies case laws and statutes, and addresses the proper person with the appropriate tone.

On organization, first realize a memorandum of points and authorities is not the same as a memo.  Do not use memo format with “DATE”, “TO”, “FROM”, “SUBJECT” headings.  Recognize that a brief or memorandum of points and authorities is a document filed with the court.  Simply title the document “MEMORANDUM OF POINTS AND AUTHORITIES” or “BRIEF” centered at the top.  There is no need for pleading paper on the exam. 

A memorandum of points and authorities or brief is a persuasive document written to the court that cites legal authorities, and explains why the court should rule according to a position advocated by the party writing the memorandum of points and authorities or brief. 

Read the assignment instructions on what content to include in the memorandum of points and authorities or brief.  Sometimes bar examiners want the applicant to focus on the arguments so they may not ask for a statement of facts, in which event, do not use up time providing a statement of facts.  If bar examiners do ask for a statement of facts, recite the facts that provide context on the case events and lead to the conclusion the party advocates.  The statement of facts should not contain any rules.  All the facts used later in the arguments should be presented in the statement of facts.  In real life, an attorney cannot make up case facts, and must cite to court records in the statement of facts where each fact comes from.

In the arguments, convince the court that the result advocated is fair, legally correct, and factually supported.  Use IRAC format to present the issues in a logical order.  Discuss the statutes by applying the elements to the facts.  Address splits in case authorities by anticipating questions from the court or opposing arguments.  Conclude on each issue with confidence for the party being represented before going to the next issue.  Do not make the bar grader decode acronyms.  Use common words and short declarative sentences.  End the assignment by summarizing the position advocated, and persuasively request the court to rule in that regard. 

When studying for CA performance tests, sign up for feedback on practice performance tests from a former CA bar grader:

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