[IntLawProfessors] FW: PERFORMANCE TESTING: DOCTRINAL COURSES [REQUESTS FOR DEFINITION]

[William Slomanson]

I've had a surprising number of replies (thanks!), inquirING about the meaning of “Performance Testing” (PTs). In response to the ABA's MacCrate report (1992), some faculty began to develop examinations that were not traditional essay exams. They include various "File" documents and "Library" resources. File docs have included memos to clients, depo or trial transcripts, letters to/fm various participants, and snippets from various discovery events. "Library" resources have included code sections, federal rules mat'ls, real and/or hypothetical cases that affect/change the normal result, or answer some issue left open in a classroom dialogue.

Thirty-five state bar exams use the Multistate Performance Test. California does not; however, it employs its own PT exams. I've been using PTs exclusively for nearly 15 years in my three courses. See, e.g., my past Civ Pro exams at <http://tjsl.edu/slomansonb/exams.html>. For concerned 1L professors, one cannot give a PT w/o some---make that lots of---preparation. I thus add a bit more PT material to each of the half-dozen class problems I use each semester for my 1L procedure course. PTs need not be limited to procedural courses. I also use PTs in International Law. For those familiar with bar PTs, and their traditionally "closed universe" Library, I have developed a half-dozen differences from bar PTs for my law school PTs (e.g., apply general knowledge).

PTs are a useful compliment to law school essay and multiple choice (MC) exams. One can, for example, do a mini-PT, along with MC questions. PTs help prepare our grads for law practice. Essays and MC questions collectively test a variety of skills. PTs do, as well. My experience has been that PTs—approximating what lawyers do in practice—do a comparatively good job of testing one’s ability to do things that an essay or MC question does not: legal research (e.g., PT “Library”); perform factual investigation (PT “File”); and counsel (hypothetical) clients, where the assigned task is to write a letter to the client. Although these skills are minimally tested in a PT, one's students would at least have the experience of preparing for an exam that more prominently places them in a law firm setting. It may be that when draft ABA Standard 302 becomes the law of the land, profs using PTs may be in a good position to argue that PTs provide more cannon fodder for assesssing what our grads can do, in addition to the traditional doctrinal objective of testing what they know.



I would cite the following as perhaps the two leading articles re PTs: Stella L. Smetanka, The Multi-State Performance Test: A Measure of Law Schools’ Competence to Prepare Lawyers, 62 U. Pitt. L. Rev. 747, 751 (2001) (The Multistate Performance Test promises to be “the best measure of one's ability to perform as an attorney, and, also, the most realistic regarding case situations when compared to the MBE and essay portion of the examination.”) & Barbara M. Anscher, Turning Novices Into Experts: Honing Skills For the Performance Test, 24 Hamline L. Rev. 224, 228 (2001) (“Given the ABA’s concern with skills training, it is not surprising that an increasing number of state bars now feel compelled to test for practice skills.”). She counsels that doctrinal professors should strongly consider altering the MPT bar format to ensure course coverage of multiple issues.

________________________________________
From: owner-civpromentor at chicagokent.kentlaw.edu [owner-civpromentor at chicagokent.kentlaw.edu] on behalf of William Slomanson [bills at tjsl.edu]
Sent: Monday, March 26, 2012 11:07 AM
To: lawprof at chicagokent.kentlaw.edu
Cc: CIV-PRO at LISTSERV.ND.EDU; civpromentor at chicagokent.kentlaw.edu
Subject: [CIVPROMENTOR:548] PERFORMANCE TESTING: DOCTRINAL COURSES

Would you respond (offlist) if your school employs performance testing in a doctrinal course---and which course?

I'll collate responses & provide results to interested folks. Would love to have your response by (anytime) this Thursday.