Suits claimed direct harm and damage to future earnings
By Nigel Duara
Associated Press
PORTLAND, Ore. (AP) - Law students taking the bar exam have it tough: Three years hitting the books. Hundreds of thousands of dollars in tuition. And all of it, potentially wasted with a few failed attempts at the dreaded state-administered test.
So in late July, with one day of the grueling session behind them, thousands of law students were surprised to find that they couldn't upload their answers using the software they purchased from Florida-based ExamSoft Worldwide Inc.
Third-year law students with mountains of debt were perhaps not the best crowd to tick off.
They sued. And they sued. And they sued.
"On the long list of things about which exam takers should be worried, wondering whether they will be able to turn in their exams for grading should be at the very bottom," according to a lawsuit filed in Washington state. "It is hard to imagine anything more basic in an exam than being able to turn it in for grading."
In Northern California, Eastern Washington and Illinois, students burned by the botched test claimed direct harm and damage to their future earnings. They're also seeking class action status and looking for other students harmed by the failed test.
The company, through a public relations agency, declined to comment on the litigation.
No one yet knows whether a student failed the bar because of the upload errors. One San Francisco plaintiff said she was still suffering because she hadn't gotten a clear answer by the time she sued on Aug. 8.
The crux of the argument is that ExamSoft should have seen the problems coming - a tidal wave of test-takers operating on new software - and did nothing to solve them.
The company said in a statement that it believes the problems were caused by a software configuration issue. The issues were exacerbated by the number of students using the servers, but not caused by them.
"We can confirm that this was not simply a matter of the large volume associated with the July 2014 exam," according to a statement released by ExamSoft marketing vice president Ken Knotts in response to questions from The Associated Press. "In fact, we have handled greater volumes of exam uploads in the past. "
He continued: "Unfortunately, (recent) upgrades, made in an attempt to improve the exam taker experience, played a role in the post-exam processing delay that some bar exam takers experienced on July 29, despite system field performance review and ongoing monitoring."
The company declined to say how many students it expected to take the test, how many students it was capable of handling and how many students it served. The company also would not discuss whether it conducted any dry-runs before the exam, and if it did, what the results of those tests showed.
Knotts said in a statement that the company is not aware of any student who missed his or her deadline. "We absolutely sympathize with the bar applicants who experienced a delay, and we again offer our sincere apologies."
The company did not offer refunds to students who paid between $125 and $150 for the privilege of using a computer; students were permitted to use a pencil and paper for free. ExamSoft said it could not comment on refunds, citing the ongoing litigation.
Catherine Booher graduated from Wake Forest University School of Law in December 2013 and established a ritual before her North Carolina bar exam in Raleigh: One McDonald's Egg White Delight with orange juice and a large ice latte and a couple minutes of de-stressing in the parking lot before the exam.
Booher wants to work for the NFL's Carolina Panthers. She has dreams of ascending the NFL ladder, in part to push back against a corporate culture that handed down a mere two-game suspension to running back Ray Rice, who allegedly struck his then-fiance in an Atlantic City casino. "I was beyond disgusted with that," she said.
But before she could bring the fight to the NFL, her plans were put on hold.
"They knew that this was happening and we're already so unbelievably stressed out as it is," Booher said. "They're not getting punished, they're not apologizing for adding to our mental anguish.
"Had they just come out and said, 'Oh, my God, we are so sorry' and refunded my money, maybe it would have been different."
ExamSoft was founded in 1998, and now, 42 state bar associations require exam takers who choose to use computers to purchase the company's SoftTest program.
The students who used computers are instructed to go home and upload their answers by midnight. A failure to do so results in a zero on the exam. So when the software failed, ExamSoft was flooded with calls. Some spent hours waiting to connect with customer support.
All the while, the clock was ticking toward midnight.
According to the complaint, ExamSoft told computer users to try the upload again or to ignore the problem. Some were told that the company was sorry.
"The number of exam-takers was not at all a mystery," said Booher's attorney, Gretchen Freeman Cappio. "They should have realized before they took everybody's money that they couldn't handle it."
Booher's lawsuit compiled the reaction on social networks into its own Exhibit A. The hashtags #barmageddon and #bargazhi started getting traction.
Scores of students took to Facebook and Twitter to vent. The dean of Northwestern University Law School told the company that it owed students a refund. The sarcastic, subversive blog Above the Law titled their post "The Biggest Bar Exam Disaster Ever?" and tagged the entry under "screw ups" and "holy crap."
"Making life hard is a GIANT understatement," wrote editor David Lat. "This appears to be the biggest bar exam debacle in history."
Published: Wed, Aug 13, 2014
