JULY 2026 · ORIGINAL INSTRUCTIONAL EXAMPLE

Performance Test: In re Freeman Potential Litigation
Sample Answer & Question Pointers

A client letter, a six-statement analysis, and a worked writing plan

By Bar Exam Doctor · Published November 4, 2026

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Official source page 14

Moisa, Ormand & Romo LLP 350 Fairfax Avenue Mayfair, Columbia TO: Applicant FROM: Irma Moisa DATE: July 28, 2026 RE: In re Freeman Potential Litigation We have been retained by Jane Freeman to evaluate the likelihood of success of an action for defamation that she is contemplating bringing in Columbia State Court against the Columbia Museum of Modern Art and Christine Hogan. Freeman’s defamation claim arose out of her employment with the Museum under the supervision of Hogan. She submitted the claim to arbitration; the Museum and Hogan denied the claim and she lost. Because the arbitration was nonbinding as to her¹, she is now free to bring a defamation action in court. Please prepare a letter to Freeman² for my signature. Assess whether each of the statements she alleged in the arbitration is indeed defamatory, assuming we are able³ to prove each is false, and give a reason for your conclusions.

Official source page 15

Jane Freeman 875 Holly St. Mayfair, Columbia Pro Se IN ARBITRATION BEFORE THE COLUMBIA ARBITRATION ASSOCIATION JANE FREEMAN, Case No. 254 Claimant, NOTICE OF ARBITRATION AND v. STATEMENT OF CLAIM¹ COLUMBIA MUSEUM OF MODERN ART and Robert Jaros, Arbitrator CHRISTINE HOGAN, July 8, 2026, 9:30 a.m. Columbia Arbitration Association Respondents. 1 Speer St., Mayfair, Columbia NOTICE OF ARBITRATION. Pursuant to the Agreement of March 28, 2026, between Claimant, Jane Freeman, and Respondents, the Columbia Museum of Modern Art (the Museum) and Christine Hogan, Ms. Freeman hereby gives Notice of Arbitration against the Museum and Ms. Hogan. The arbitration will be conducted before Mr. Robert Jaros at 9:30 a.m. on July 8, 2026, at the Columbia Arbitration Association, 1 Speer St., Mayfair, Columbia. Also pursuant to the Agreement of March 28, 2026, any award will be binding on the Museum and Ms. Hogan but nonbinding on Ms. Freeman. STATEMENT OF CLAIM. Background. Ms. Freeman alleges as follows: Ms. Freeman was employed by the Museum at its Film and Television Archive (Archive). Her direct supervisor was Ms. Hogan, who was the Archive’s Assistant Director; Ms. Hogan’s direct supervisor was Walter Quist, who was the Archive’s Director. The Museum hired Ms. Freeman in 2006 and laid her off in 2024. At the time of her layoff, she was the head of Commercial Services for the Archive. Although she worked on multiple projects for the Archive, the main one involved the Columbia Times Newsreel Collection. Over a seven-year period, she worked with International Digital Corporation (IDC) to create a digital catalog and search engine for the Newsreel Collection. The project remained unfinished when she was laid off.

Official source page 16

In a series of defamatory statements, Ms. Hogan blamed Ms. Freeman for the unfinished status of the project. Although the Museum claimed it laid Ms. Freeman off as a result of restructuring, it actually did so because of Ms. Hogan’s defamatory statements. To prevent a claim of defamation against Ms. Hogan directly and against the Museum vicariously, Ms. Freeman demanded that the Museum and/or Ms. Hogan pay her the sum of $1 million, but the Museum and Ms. Hogan refused. Instead, the Museum and Ms. Hogan offered to arbitrate Ms. Freeman’s defamation claim before the Columbia Arbitration Association, with any award binding on the Museum and Ms. Hogan, but nonbinding on Ms. Freeman. Ms. Freeman accepted the offer. Claim. Ms. Freeman alleges as follows: Ms. Hogan made all of the statements quoted below, each of which was defamatory, being false and having a tendency to injure her in her occupation. Subsequently, each of these statements was broadly disseminated, both within the Museum and beyond it, by a person or persons unknown. 1. In an email dated January 15, 2024, and addressed to Ms. Freeman alone, Ms. Hogan stated: “I can’t say you are incompetent. But I can say you have not been performing well on the Newsreel Collection, and do not seem up to the job¹.” 2. In an email dated April 5, 2024, and addressed to Mr. Quist but not to Ms. Freeman, Ms. Hogan stated: “Ms. Freeman has from the start independently guided the Newsreel Collection project, with spotty oversight by previous management. She never completed documents formulating goals and deliverables over the life of the project and always refused² my requests for the same.” 3. In an email dated April 6, 2024, and addressed to Mr. Quist but not to Ms. Freeman, Ms. Hogan stated: “In my frustration with Ms. Freeman’s lack of communication about the Newsreel Collection, I asked her in early February to start copying me on all important emails with IDC. She agreed and has since been copying me on highly technical emails concerning IT minutiae (which frankly I don’t understand). Yesterday, I found out that she had taken a high-level meeting with Steve Canepa of IDC three weeks ago to discuss the Newsreel Collection project. I was not copied on any of the emails that must have been written to set up and discuss the meeting. I feel that Ms. Freeman may be actively undermining our efforts to communicate with IDC, because she believes she should be the only contact with them. Obviously, I can’t prove³ any of this, but her apparent attempt to keep IDC for herself leads me to this suspicion.” 4. In an email dated April 11, 2024, and addressed to Mr. Quist but not to Ms. Freeman, Ms. Hogan stated: “It is now my opinion that Ms. Freeman will never be a team player and that she may be actively working against our interests in her

Official source page 17

handling of the Newsreel Collection Project with IDC. I would therefore like to let her go, and I think we can restructure her department to eliminate the position. Proving malfeasance is difficult, despite much written evidence¹, so I think a separation through restructuring is the way to go. Your views?” 5. In an email dated April 13, 2024, and addressed to Ms. Freeman alone, Ms. Hogan stated: “I asked you to make every effort to come to my office at 1:00 p.m. You failed to show up until 1:15² p.m.” 6. In an email dated April 17, 2024, addressed to senior managers at the Archive but not to Ms. Freeman, Ms. Hogan stated: “Today I laid off Ms. Freeman for reasons including various established financial improprieties³.” Relief. Ms. Freeman alleges that she is entitled to damages for defamation in the amount of $1 million from the Museum and/or Ms. Hogan. DATED: April 8, 2026. /s/ Jane Freeman Jane Freeman

Official source page 20

Slaughter v. Dental Administrators, Inc. Columbia Court of Appeal (2012) Terry Slaughter, DDS, an oral surgeon, brought a defamation action against Dental Administrators, Inc., an established dental insurance plan administrator. Dr. Slaughter had submitted claims to Dental Administrators for certain dental services that he had rendered to some of his patients. In denying each claim, Dental Administrators enclosed a letter to the patient explaining its reasons for the denial. In the letter, Dental Administrators stated that Dr. Slaughter’s dental work was "unnecessary" and stated that he was "overcharging." Dr. Slaughter alleged that Dental Administrators’ statements were defamatory. Dental Administrators moved to dismiss the action for failure to state a claim upon which relief could be granted—specifically, for failure to effectively allege that the statements were indeed defamatory. The trial court granted the motion and dismissed the action. On appeal, we now reverse. Defamation includes libel. (Colum. Civ. Code, § 44.) Libel is a “false … publication by writing … which exposes any person to hatred, contempt, ridicule, or obloquy, or which … has a tendency to injure them in their occupation.” (Colum. Civ. Code, § 45.) To be defamatory, a statement must contain a provable falsehood. To contain a provable falsehood, the statement must relate a fact. To this end, courts distinguish between statements of fact and statements of opinion. A statement of fact generally says something about the world surrounding the speaker. For example, “John Jones was convicted of theft.” In contrast, a statement of opinion generally says something about the speaker themself, such as their belief, feeling, conjecture, or speculation. For example, “I think” or “I sense” or “I guess” or “I have a hunch” that “John Jones is a thief.” But some statements of opinion may imply a statement of fact². For example, if a speaker says, “In my opinion, based on the testimony given at trial, John Jones is a thief,” the speaker implies the existence of facts, reflected in the testimony referred to, that support an inference that John Jones is a thief. The key to determining whether a statement is one of fact or opinion is whether a reasonable fact finder¹ could conclude the statement declares or implies a fact. Whether such a fact finder could so conclude must be determined under the totality of the circumstances, including the words of the statement as a whole and the context in which the statement was made. We believe that, under the totality of the circumstances, a reasonable fact finder could conclude that the statements in Dental Administrators’ letters to Dr. Slaughter’s patients, to the effect that his dental work was "unnecessary" and that he was "overcharging," declare or imply facts. Such a fact finder could understand the statements in question as

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statements of fact, specifically, that Dr. Slaughter performed dental work that was unnecessary and charged fees that were excessive. Such statements of fact, if false, would be defamatory, tending, as they do, to injure Dr. Slaughter in his occupation. Dental Administrators argues that, in stating that Dr. Slaughter’s dental work was "unnecessary" and that he was "overcharging," their letters to his patients contain statements of opinion. In so arguing, they rely on the settled proposition that a statement that simply comments adversely on a person’s attitude, efforts, or results is one of opinion. Although a reasonable fact finder might indeed understand such statements as Dental Administrators’ as mere opinion if made by some layperson, such a fact finder could understand them as actual fact, made as they were by an established dental insurance¹ plan administrator. For these reasons, we conclude that the trial court erred when it granted Dental Administrators’ motion and dismissed Dr. Slaughter’s action for failure to state that the statements in their letters to his patients were defamatory. REVERSED.

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Jensen v. OmniWare Co. Columbia Court of Appeal (2013) In Slaughter v. Dental Administrators, Inc. (Colum. Ct. App., 2012), we recently addressed actions for defamation and defamatory statements. Today, we address such actions and statements again, but now in the particular area of employment. Sean Jensen seeks reversal of a judgment of dismissal of his action for defamation against his employer, OmniWare Co. The trial court rendered the judgment after granting OmniWare’s motion to dismiss the action on the ground that Jensen had failed to state a claim upon which relief could be granted because he had failed to effectively allege that the statements on which he based the action were defamatory. In a nutshell, the underlying action for defamation arises out of statements evaluating an employee¹’s performance. Hank Phelps, Jensen’s supervisor at OmniWare, informed Jensen that he needed to improve his on-the-job performance in certain relatively minor respects. Jensen took offense at the statements, claimed they were false, and accused Phelps of trying to hide his own incompetence. Jensen demanded the statements be removed from his personnel file and challenged Phelps "to prove his various allegations to an impartial fact finder." OmniWare investigated the matter and sided with Phelps. Jensen brought the underlying action but continued working at OmniWare. As a prelude to our holding, we express our strong judicial disfavor for defamation actions based on statements evaluating an employee’s performance. In light of the multitude of laws designed to protect employees from oppressive employment practices, such statements serve the important business purpose of documenting the employer's hiring, promotion, discipline, and firing practices. Moreover, the laudable practice of evaluating employees is to be encouraged for other important reasons. The practice is a vehicle by which an employer or its designee informs an employee of what the employer expects, how the employee measures up, and what the employee needs to do to obtain wage increases, promotions, or other recognition. The employee is the recipient of statements evaluating their performance and is their beneficiary. Clearly, there is a legitimate reason for evaluating an employee’s performance, and the employer has an unquestioned obligation to keep records of statements doing so. We would therefore be loath to subject an employer to the threat of a defamation action in which a jury might decide, for instance, that the employee should have been given a rating of "average" rather than "needs improvement," or that the employee had an ability, unrecognized and unappreciated by a foolish supervisor, to get along with and lead

Official source page 23

others. Yet that result is exactly what Jensen intended to accomplish with his defamation action against OmniWare—namely, to have an “impartial fact finder” judge whether Phelps was “right” or “wrong” in his statement evaluating Jensen’s performance as an employee, which is to say whether Jensen was more valuable to OmniWare than Phelps was willing to acknowledge. Based on the facts here, we hold: Unless a statement¹ evaluating an employee’s performance falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior, it should be deemed not a statement of fact and hence not defamatory. In this case, Phelps’s statements evaluating Jensen’s performance as an employee do not accuse Jensen, falsely or otherwise, of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior. All that they do is inform him that he needs to improve his on-the-job performance in certain relatively minor² respects. Accordingly, the trial court was right to grant OmniWare’s motion and dismiss the action. It would have been wrong to do otherwise. AFFIRMED.

Before you write: issue outline

Deliver a letter to Freeman for Moisa's signature.
Assume falsity as instructed; do not relitigate the arbitration.
Synthesize Slaughter with the employment-specific Jensen rule.
Analyze each of the six statements and give a reasoned conclusion.

Work through the task before reading the response

The task is an assessment for a client, not a complaint, an advocacy brief, or an internal research memo. Use the file and the fictional Columbia authorities supplied with this test. The two library cases must be read together: Slaughter supplies the contextual fact/opinion analysis, and Jensen gives special treatment to employee evaluations while preserving liability for accusations of specified serious misconduct or characteristics.

A suggested 90-minute allocation

Use approximately 5 minutes to identify the task and audience, 30 to read and map the file/library, 10 to outline the six applications, 40 to draft, and 5 to check the assignment. This is a practice allocation, not an official requirement. Adjust it to your reading and writing results.

Build the rule-and-fact map

Statement	Main distinction	Working conclusion
1	General evaluation versus an accusation of incompetence	Likely protected evaluation; explain the borderline wording
2	Specific claimed nonperformance and refusal	Arguable serious insubordination; not merely a negative rating
3	Expressly tentative suspicion and disclosed basis	Stronger opinion defense, with a counterargument
4	Opinion label coupled with claimed documentary support	Stronger implication of undisclosed provable misconduct
5	Minor punctuality criticism	Likely protected employment evaluation
6	Asserted established financial wrongdoing	Strongest defamatory factual accusation

Original sample response: client letter

July 28, 2026
Jane Freeman
Mayfair, Columbia

Re: Your potential defamation action

Dear Ms. Freeman:

You asked us to assess the statements concerning your work at the Museum. As requested, this analysis assumes that we can prove they are false. Your arbitration loss does not prevent the proposed court action under the nonbinding arrangement described in our file. However, not every false and unflattering employment statement is defamatory. Our assessment of each statement follows.

The applicable distinction

Under Slaughter v. Dental Administrators, a written statement can be defamatory when it asserts or implies a provably false fact tending to harm a person's occupation. The court considers the complete statement, its context, and how a reasonable reader would understand it. Labeling something an opinion does not protect an assertion that implies supporting facts.

Jensen v. OmniWare gives employers room to evaluate performance without turning ordinary disagreements over ratings into defamation suits. It protects employment evaluations unless they falsely accuse an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior. Thus, an unfavorable assessment of effort or results is different from an accusation of serious wrongdoing. We must apply that distinction to each email rather than treat the entire series alike.

1. General criticism of performance

The first statement is likely protected as an employment evaluation. Read as a whole, it criticizes the quality of your work on the project and your apparent suitability for it, rather than expressly charging professional incompetence. Jensen protects ordinary judgments about an employee's performance. The express disclaimer of incompetence supports that defense.

We could argue that the remaining wording conveys incompetence despite the disclaimer, and the speaker cannot defeat a claim by prefacing an accusation with a denial. The complete wording nevertheless gives the Museum a substantial argument that this was a negative appraisal of current results rather than an accusation within Jensen's exceptions. This is a weaker claim.

2. Claimed failure to prepare documents and refusal of requests

The second statement is more specific. Whether project documents were completed and requests refused can be checked against records and communications. It therefore has a stronger factual character than a general low rating. The suggestion of persistent refusal also permits an argument that you were accused of serious insubordination or reprehensible behavior, taking the statement outside ordinary evaluation protection.

The Museum will answer that a supervisor must be able to describe unmet work expectations and that Jensen protects precisely such assessments. A mere failure to complete tasks is not automatically an allegation of dishonesty or serious misconduct. Our stronger argument focuses on the categorical assertion of deliberate refusal, rather than simply calling all criticism factual. This is an arguable claim whose outcome depends on how a reasonable reader understands that accusation in context.

3. Suspicion about withholding communications

The third email gives the reader the supervisor's stated observations and openly presents the conclusion as an unproven suspicion. The Museum can argue that this is a disclosed inference or conjecture rather than a claim of established dishonest conduct. The explanation of the supposed meeting and missing communications lets the reader assess the inference instead of asking the reader to trust unspecified proof.

Our counterargument is that the email also asserts concrete events and implies intentional obstruction, which can damage professional integrity. Under Slaughter, tentative wording alone is not conclusive. Nevertheless, the express uncertainty and disclosed reasoning distinguish this email from an assertion of proven misconduct. The opinion defense is comparatively strong.

4. Claimed supporting evidence of wrongdoing

The fourth statement presents a stronger claim. Although the supervisor calls part of it an opinion, the reference to substantial written evidence implies that there are documents establishing improper conduct. A reasonable reader could understand it to accuse you of deliberately working against the Museum while using restructuring as the explanation for dismissal.

Slaughter warns that an opinion may imply provable underlying facts. The suggested intentional disloyalty can also fit Jensen's exceptions for lack of integrity or reprehensible behavior. The Museum will point to the speculative language and the ordinary managerial question whether you work well with others. But the claimed evidentiary basis makes this more than an unsupported unfavorable rating. We have a substantial argument that it is defamatory on the assumed falsity.

5. Arrival time

The fifth statement describes a minor punctuality issue. Even assuming the stated time is false, the allegation does not accuse you of dishonesty, crime, incompetence, or comparable serious behavior. It is closely analogous to the relatively minor performance concerns protected in Jensen. We are unlikely to establish that this statement is defamatory merely because the arrival time is verifiable.

6. Alleged financial misconduct

The sixth statement is the strongest basis for a claim. It tells managers that financial wrongdoing was established and was a reason for your dismissal. That is presented as a fact, not as a tentative concern about effort or results. Accusing an employee of financial impropriety directly implicates honesty and integrity, bringing the statement within Jensen's exceptions. The supervisor's institutional position further supports a reasonable reader's understanding that she is reporting actual findings. Under Slaughter, that context matters.

Overall assessment

We would focus particularly on statements four and six, with statement two requiring close attention to whether it alleges serious insubordination rather than ordinary poor performance. Statements one and five face the strongest employment-evaluation defense; statement three faces a substantial opinion defense. This assessment concerns whether the statements are defamatory, the question assigned to us. Proving falsity is assumed here; any additional elements or defenses necessary for a final recovery would require separate consideration.

Sincerely,
Irma Moisa
Moisa, Ormand & Romo LLP
Signature block used only within this fictional exam response.

Why the response is organized this way

It follows the requested form. The legal reasoning sits inside a client letter. The fictional supervising lawyer signs, rather than an invented applicant identity.
It synthesizes the cases. A verifiable statement is not automatically actionable in the employment context. The serious-accusation exceptions must be considered.
It separates statements three and four. Both use qualified language, but a disclosed suspicion differs from a claimed evidentiary basis. Labels do not replace contextual analysis.
It honors the assumption. The response does not spend its limited time proving falsity, attacking the arbitration, calculating damages, or researching real-world defamation law outside the library.
It acknowledges close calls. Statements one through four permit competing interpretations. A useful response explains them and reaches a reasoned assessment without claiming an official score.

Try a five-minute revision

Rewrite the discussion of statement four without using the words fact or opinion until the final sentence. Explain what a reasonable reader would infer, why the asserted written evidence matters, and how Jensen's exception applies. This tests whether the paragraph contains analysis rather than labels.

Sources and authority

The official question controls its facts and instructions. The authorities below support the rule discussion and are separate from any official grading standard.

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