Performance Test Attack Sheet for the California Bar Exam

Document

Skill Tested

Notes

Memo of law

Legal analysis

Objective

Issue-by-issue

Memo or points & authorities

(brief in support of motion)

(persuasive memo)

Legal analysis

Persuasive

To the judge

Argument-by-argument

Jurisdictional statement: “This court has jurisdiction over the subject matter of this action because…”

Trial brief

Legal analysis

Persuasive

Tell the judge what law to apply

Appellate brief

Legal analysis

Persuasive

Memo to judge

Legal analysis

Persuasive if representing client

Object if clerk for the judge

Client letter

Legal analysis

Objective

Make recommendations

Letter to opposing counsel

Legal analysis

Must be persuasive

Position Paper

(persuasive letter to agency)

Legal analysis

Persuasive

Theory of the Case Memo

Legal analysis

How the case law and facts fit

Part persuasive, part objective

Case Plan

Legal analysis

Steps in handling the case from start to finish. Overall goal first, then id and examine legal issues and facts accompanying the issue

Opening statement

Fact analysis

Persuasive – tell a story

Promise of what evidence will show

Analyze/Argue facts w/in the structure of

the law

Element-by-element

Rebut bad facts

Closing statement

Fact analysis

Persuasive – sum up your case and convince jury to accept your interpretation

Analyze/Argue facts (from trial transcript)

w/in the structure of the law

Element-by-element

Rebut bad facts

Document

Skill Tested

Notes

Bench memo

Fact analysis

Judge acting as fact finder – generally just analyze facts unless appears that judge wants fact and law

Jury instructions

Fact analysis

Be persuasive, but not argumentative

3-parts: theory, elements, particularized to the facts of the case

Declaration / Affidavit

Fact analysis

Numbered paragraphs w/ fact statements

1. “I ______, am _______“

2. state basis for D’s knowledge

Witness cross-examination plan

Fact analysis

Plan on how to cross-examine in opposing party.

Will, Contract, etc

Fact analysis

Regulate behavior to meet certain goals.

Organization:

1. Title

2. Identify the parties

3. State the purpose or description of the situation (keep it short)

4. Identify the terms of the document (fact specific)

Fact gathering

Fact gathering

Focus on what you need to prove/disprove

Elements or factors

Gather all types of facts (documentary, physical, testimonial)

Every person/document/item mentioned in the file is important.

Verify major facts w/ a second source

Discovery devises – only if asked

Ethical dilemma

Ethical lawyering

1. Identify the ethical dilemma

2. Suggest alternative ways of resolving the issue

3. Select on of your options

Problem Solving

Problem Solving

1. Identify the problem in terms of the client’s goals

2. Identify options (alternatives; courses of action)

3. Identify and analyze consequences for each option (legal & non legal)

4. If requested – select and implement best option