PERFORMANCE TEST PITFALLS

Tips for Passing the Performance Test In California

 

The structure of a PT is almost as important as its content, because it allows a reader to easily understand what you are trying to say and how you get there.

 

As you know, all of our legal arguments are based on some law (duh).   And as such, when we are trying to answer a legal question,  we need authority (statute/cases) in order for us to support our legal answer.

The purpose of a brief, memorandum or letter is to provide the law and support in order to provide someone either with a persuasive or objective position relative to whatever is asked about.

In order to achieve this, we have to break down the issues pursuant to what the question is asking.  

 

Simply put, we are likely getting a few major questions, of which to answer, we have to break down elements or sub-issues in order to answer the major question.

 

At the end, you have something that would basically be a few simple points that you’re trying to make in order to prove your case:

 

EX:  Was proper Notice Given?

 

Rule:   Notice consists of providing the other party with: 1. A writing; 2. Delivered in Person

 

            Sub issue 1:  A Writing

 

            Sub Issue 2:  Delivered in Person

 

 

If you think about this, we are simply making a few points to prove what our original question is.   However, while most people see this they don’t understand how to make those simple points underneath the discussion.  What I have found, is that most people can get this far (perhaps), but beyond this, have difficulty in gathering what to say below this portion. 

 

Well, the simple way to answer this question, is that what you want to say underneath each section is basically what is the COMPLETE status of the black letter law for that particular issue.    Suppose that you had various cases under “A Writing” which explained that a writing is considered to be a typed, 12 point font page, signed by the person providing notice.    Now, I say this as if this is black letter law right?  well, let’s say that these points (typed/12point/signed) all came from different  cases.    And that other cases said that in cases where an email was also provided, that it could substitute a writing.    See, gets more complicated right?    Well, when you start off talking about a writing, you couldn’t just point to a single  case and say something like “In the HAPPER CASE, blah blah blah…” instead, what I want you to do is “SYNTHESIZE” the rule, and create your own BLACK LETTER LAW.

 

Your job is to take all that you learned when you read about the cases about “writing” put it in one place, and give me your version of the rule as it relates to this case.  Now , it does make a difference if it’s persuasive or objective, how you frame the law, but you can’t ignore parts of the law.  in other words, when you give me the law about a writing, you’d include a sentence or two (depending on how you absorbed the law) – that would basically be like a barbri version of black letter law.  and you would list the cases behind the synthesized rule.  This synthesized rule, would be the test that you’d use in order to discuss your own case.    It’s  basically the “test” that is applied to answer the question in front of us.   Now, as you know, when you frame a “test” – I could say that in order for a “writing to be established, it must be typed, 12 point, signed.   Emails CAN suffice as substitutes blah blah blah” (CASE 1, CASE 2, Case 3).   Now if I didn’t necessarily have the writing in place but DID have the email, maybe I’d couch it like “While writings generally have certain requirements (typed, 12 point and signed), emails operate similar to writings in providing notice”  (Case 1, 2, 3)  my point being that while the differences are subtle, you can always write in a way that sheds the best light on your client (but don’t misinterpret with what I’m saying with “LEAVING OUT pertinent law” which you cannot do (it’s actually unethical to do so).   It’s how you DEAL with that law that doesn’t favor you that is really what you’re being tested on.

 

So once you put in your synthesized rule, then your next task will be to discuss the CASES that came up with that law.  Which cases you use is up to you.    Some cases hold the entirety of another case within that case, so you have to pick and choose which cases are beneficial to your position, and even cases that are NOT that you can easily distinguish.    Point being that this next section which I label the “EXAMPLE through CASES” section, requires you to go through and discuss the cases that came up with this law so that the court or person reading has a background in terms of how the law came about.  Don’t’ confuse this with just doing a brief.  You’re still writing only the pertinent information to give the reader an idea of what happened and the reasoning behind it (so long as it has something to do with our case – because if the reasoning isn’t material to our case, why mention it). 

 

When you have explained whatever pertinent cases that you want to utilize to explain and help your situation (and remember not ALL the cases need to be discussed, you have to utilize your discretion to determine which are necessary to support your position because often times, a few cases end up saying the same thing, like the later the case goes, it repeats what the earlier cases said, so having to talk about all of them MAY or MAY NOT be beneficial)… you may only use the case sometimes for that quote that “the decision is based on the totality of the circumstances” and really nothing else about the case was relevant except it dealt with the same issue – well just take that quote, but don’t use the facts from that case (i.e. use that as part of your synthesized rule – but don’t have to “explain” the case – since you’re not using it to support your discussion per se).

 

Once you’ve explained the PERTINENT CASE(S) – then do your analysis by talking about your case and sometimes it’s a comparison to the cases you mentioned, sometimes it’s just doing the analysis as if it was like an essay…   it all depends on the question and circumstances.  Sometimes you have to distinguish the cases, because your case is NOT like that one and you might have to use policy.  The point is at this point, it’s for you to determine the best strategy for argument and it’s not so structured in terms of what you should ALWAYS do.  

 

The point to all this, is you have to use independent thinking to determine what is the best strategy and avenue to prove your point.. but don’t ever forget the question and what you are being asked to do, because above all else, this is what you’re doing, you’re communicating your point to the reader based on whatever task is in front of you.

 

 
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