Sample NextGen Bar Exam Performance Task

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About Performance Tasks

Each performance task should take approximately 60 minutes to complete. Performance tasks pose a question or series of questions about a single client matter. The examinee will have two kinds of materials with which to work: a File and a Library. The specific task the examinee must complete will be described in a memorandum in the File. The File may also include interview transcripts, deposition transcripts, or other documents. Both relevant and irrelevant facts will be included, and facts may be ambiguous, incomplete, or even conflicting. Examinees are expected to recognize when facts are inconsistent or missing and to identify sources of additional facts when prompted to do so. 

The Library may contain cases, statutes, or other rules, some of which may not be relevant to the assigned lawyering task. The examinee is expected to extract from the Library the legal principles necessary to analyze the problem and perform the task. Performance tasks do not assess memorized substantive law; the Library materials provide the substantive information needed to complete the task. 

All performance tasks assess an examinee’s skills in legal research and written legal analysis (Groups A, C, and D of the Foundational Skills), but some performance tasks emphasize some skills over others. Performance tasks that focus on legal research skills will consist of a series of multiple-choice and short-answer questions followed by one extended-response question. Performance tasks that focus on written legal-analysis skills will consist of one longer extended-response question. 

Performance tasks may assess skills through subject areas that are partially or fully outside of the Foundational Concepts and Principles; however, when such an area is involved, the question will provide the resources the examinee needs to give a complete answer. For example, a performance task may include aspects of state family law when assessing research and writing skills, but the Library will provide all family law rules necessary to give a complete answer. 

Below is a sample performance task that is a modified version of the Butler v. Hill MPT administered in February 2011. 

Performance Task Sample Answer Outline

Review Sample Answer Outline

Robert and Jennifer did not have a valid formal marriage. 

  • Jennifer was 17 years old and had no actual consent from her parents.
  • Jennifer was pregnant, but there was no physician-signed document to confirm the pregnancy.
  • Robert forged the parental consent form.
  • Thus, there was no legal marriage at the time of the ceremony.
  • The marriage could not be ratified due to Robert’s existing marriage. The marriage could have been ratified once Jennifer turned 18 (due to cohabitation, per Section 301(b)), except that the marriage would be deemed “prohibited” under Section 310(1)(a). Robert was not divorced. Under Hager, it was as if no marriage had been performed, so the marriage could not be ratified.
  • The only option to establish a marital relationship is common law marriage.

The facts favor the claim that Robert and Jennifer had a common law marriage. 

  • Jennifer and Robert were able to enter into a valid marriage.  
    • Jennifer reached the age of 18 before Robert’s divorce was final and was then able to enter into a valid marriage.
    • Robert’s first wife, Serena, obtained a divorce judgment from Robert on April 10, 2018.   
    • Once Robert divorced, a common law marriage between him and Jennifer became possible.
  • Jennifer and Robert manifested mutual agreement that they were married.  
    • The parties initially expressed their intent to be presently married by participating in the ceremonial marriage.
    • Although the facts present no later restatement of an agreement to be married after the date of Robert’s divorce from Serena, the ongoing conduct of the parties as a married couple manifests this intent.
      • The parties shared household expenses and raised children together.
      • Louisa Milligan, a neighbor and friend, said that Robert and Jennifer always referred to themselves as married.
      • This evidence should establish that Robert also had a present intent to be married to Jennifer.
      • At the anniversary party, Robert told everyone that marrying Jennifer was the smartest thing he had ever done.
      • The divorce from Serena had become final in April of 2018, and the anniversary party occurred well thereafter, so this statement was made at a time when a common law marriage was possible.  
    • There is no evidence that either party ever changed this intent while they cohabited.
    • When Jennifer discovered Robert’s affair, she decided to divorce. This demonstrates her agreement and belief that the parties were presently married.
    • Robert claims that he thought his first wife had already finalized a divorce before his marriage ceremony with Jennifer.
    • After Robert’s divorce was final, the parties continued to live together and hold themselves out as husband and wife.
    • This is strong evidence demonstrating that both Jennifer and Robert had a present intent to be married at a time when a common law marriage could have been formed.
  • The parties cohabited for at least one year after agreeing to the marriage.     
    • The parties continued to cohabit as husband and wife after Robert’s divorce became final on April 10, 2018.
    • This cohabitation continued from the date of their ceremony until their separation in May of 2020.
    • They continued to raise their two children together.
    • They shared household expenses.
  • Jennifer and Robert held themselves out to the community as husband and wife.  
    • Robert and Jennifer both held themselves out to the community as being married.
    • Despite the fact that Jennifer and Robert had different surnames, neighbors believed that they were married.
    • A neighbor stated that she witnessed the parties referring to themselves as husband and wife after the date of Robert’s divorce.
    • The same neighbor recalled Robert’s speech at the anniversary where Robert claimed that marrying Jennifer was the smartest thing he had ever done.
    • They continued to raise their two children together.
    • They shared household expenses.

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