NE Bar Performance 2 — Questions and Answers
Question 1: In a Nebraska Bar Exam performance test, when drafting a client letter, which tone and format is most appropriate?
- Formal legal prose with citations to authority
- Plain language explaining legal conclusions without technical jargon (Correct answer)
- A bullet-point summary of all applicable statutes
- A verbatim reproduction of relevant case holdings
Correct answer: Plain language explaining legal conclusions without technical jargon
Client letters should use plain language that explains legal conclusions clearly without overwhelming the client with technical terminology.
Question 2: During a performance test, you are given a File and a Library. Which source controls if they conflict?
- The File, because it contains the facts
- The Library, because it contains the law (Correct answer)
- The most recent document in either source
- The instructions memo, which supersedes both
Correct answer: The Library, because it contains the law
The Library contains the governing legal authorities, which control over the factual documents in the File when there is a conflict.
Question 3: A performance test asks you to draft a persuasive brief. Which of the following is the most important structural element?
- A table of contents listing every exhibit
- An argument section with headings that state your legal conclusions (Correct answer)
- A chronological narrative of all client communications
- A glossary defining all legal terms used
Correct answer: An argument section with headings that state your legal conclusions
Persuasive briefs require argument headings that affirmatively state the legal conclusion you want the court to reach, making your position immediately clear.
Question 4: When completing a performance test that requires drafting a contract clause, what is the primary goal of the language you use?
- To maximize ambiguity so disputes can be resolved in your client's favor
- To be comprehensive, precise, and unambiguous to protect your client's interests (Correct answer)
- To mirror the opposing party's proposed draft as closely as possible
- To incorporate as many boilerplate provisions as the page limit allows
Correct answer: To be comprehensive, precise, and unambiguous to protect your client's interests
Contract drafting requires precise, unambiguous language that clearly defines the parties' rights and obligations to protect the client.
Question 5: In a performance test set in Nebraska, a supervising attorney's memo instructs you to 'analyze the issue under applicable Nebraska law.' A library case is from the Eighth Circuit. How should you treat it?
- Ignore it entirely because it is federal, not state law
- Apply it as binding authority on Nebraska state courts
- Use it as persuasive authority if it interprets Nebraska law or analogous principles (Correct answer)
- Treat it as binding only if it is less than ten years old
Correct answer: Use it as persuasive authority if it interprets Nebraska law or analogous principles
Eighth Circuit decisions are persuasive, not binding, on Nebraska state courts, but may be cited when they interpret relevant principles or Nebraska statutes.
Question 6: A performance test Library contains a statute and a case that appears to narrow its scope. How should you apply them together?
- Apply the statute alone and disregard the case as secondary authority
- Apply the case alone because case law always supersedes statutes
- Read the statute and case together, using the case to interpret the statute's meaning and application (Correct answer)
- Ask the supervising attorney for guidance before applying either
Correct answer: Read the statute and case together, using the case to interpret the statute's meaning and application
Courts interpret statutes, so you must read both together — the case illuminates how the statute applies to factual situations like the one in the File.
Question 7: Which of the following best describes the purpose of the 'point headings' in a performance test legal memorandum?
- To provide citations for every legal proposition discussed
- To organize the document and signal to the reader what each section addresses (Correct answer)
- To list the factual exhibits relied upon in each section
- To identify opposing counsel's strongest counterarguments
Correct answer: To organize the document and signal to the reader what each section addresses
Point headings organize a memorandum and orient the reader, telling them what legal issue or conclusion each section addresses before they read the analysis.
NE Bar Performance 2
In a Nebraska Bar Exam performance test, when drafting a client letter, which tone and format is most appropriate?