Screw-Ups

If you think about it, there shouldn’t be any bar exam administrative debacles. Something like ExamSoft should never be allowed to happen. Every state has its own board of law examiners, and these folks simply have to administer and score a test. It’s amazing that every year, at almost every administration of the bar exam, there is some kind of comic failure from those in charge of administering the exam.

Of all the bar exam failures we’ve covered, this one is the most cruel. It’s terrible to tell students that they’ve passed the bar when they actually failed. But telling them the night before the swearing-in ceremony is among the worst things I’ve ever heard….

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The Supreme Court of the United States (photo by Drew Havens).

Yesterday, the New York Times ran an article by Adam Liptak on the increasingly suspect “facts” that the Supreme Court cites in some of its opinions. Whether penned by the justices themselves or the little twits who actually do the heavy lifting on the opinion-writing, opinions from the Court have become a veritable wasteland of dubious figures, outlandish claims, and hardcore pornography. Or, rather, just the first two.

Sex-crazed Stephen Breyer, for instance, is said to have relied on a discontinued blog for a statistic related to public libraries. The blog, wackyliberryfacts.blogspot.com, has two posts since 2008 and both have to do with Michael Hutchence’s death. A good read, if maybe a bit too reliant on incorrect lyrics from Suicide Blonde.

On the right side of the Court (and history…?), coozehound Samuel Alito is said to have cited an unreliable fact about background checks done by employers in a 2011 opinion. The fact? That 47 percent of Americans can’t come up with Joe Biden’s name when asked who our Vice President is. Which, as far as I can tell, is a totally true fact! But its connection to background checks is tenuous, if not downright nonexistent.

Given the fact that our nation’s entire legal edifice threatens to crumble under the weight of a thousand erroneous internet “facts,” we’ve decided to help the Court out. Here are five ways the court can get around the shoddy fact-checking in judicial opinions.

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Court reporters put up with a lot. Not only are they largely condescended to by the often middling attorneys they deal with every day, but they have to listen intently to everything lawyers say all the time. And when they’ve managed to turn around two days worth of testimony into a transcript by mid-morning the next day, they get a courteous nod and a “what took you so long?”

The job really is its own circle of hell. The sort of thing that might make somebody type “I hate my job” over and over and over again instead of keeping up with the proceedings.

But not every court reporter is a martyr deserving of veneration. If, for example, a court reporting service just didn’t prepare transcripts in criminal cases for months on end, they may earn themselves a hearty benchslapping…

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Almost a month after ExamSoft treated us to the biggest bar exam disaster ever, they’ve issued an apology. Well, that’s something. One would have expected this within hours of the debacle that the Internet dubbed #Barghazi. Maybe it was written in July and it’s just taken this long for the ExamSoft software to load it up.

Despite calls that ExamSoft needs to bite the bullet and refund student money over this mishap and pending legal claims, ExamSoft is content to offer a straight-forward “oops, our bad,” and carry on like nothing ever happened.

Is this apology enough? Do the victims of this snafu deserve more?

Are all of you just overreacting?

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Well, it’s only taken a week for ExamSoft to go from a random company whose name you couldn’t remember one week after the bar exam to “ExamSoft: Destroyer Of Worlds.” Today we can report that the first lawsuit has been filed against the company. It won’t be the last.

This is going to be a fun ride, and we are only at the beginning. By next week I predict the counter-narrative to get rolling. Maybe a dean will pen a New York Times op-ed about how kids these days, with their computers and text machines and MyBooks, don’t know how to take “personal responsibility.” Somebody will say that it is the test takers’ fault, for buying a program and having the audacity to believe that it would work as intended.

Looking deeper into my crystal taco, as lawsuits proliferate, there will be a circuit split. The Second and the Seventh will affirm decisions against ExamSoft, while the Third and Fifth will reverse. The Third will say that we need to learn a powerful lesson about our over-reliance on technology, while the Fifth will hold that a reasonable person wouldn’t try to write an essay in the clouds: “that’s pure hogwash,” it’ll say.

Eventually this will get to the Supreme Court, which will rule, 5-4, to relieve ExamSoft of liability. Writing for the majority, Justice Alito will argue: “When a person, such as ExamSoft, fails so spectacularly in its duties, the key question is to determine if that person is a man or a woman. If male, the person’s own sense of shame will be punishment enough. But if female, the Court must teach a lasting lesson. Here, we find ExamSoft to be a male person, and therefore must reverse the trial courts. The students should clearly incorporate themselves if they wish to pursue further remedies.” Concurring in part, Scalia will tell us that the bar has become too easy of a test and ExamSoft merely introduced a greater barrier to entry. Breyer’s dissent will be something like: “I was robbed once just like these test takers and, goodness gracious, it was scary.”

Okay, you’re welcome. Now that we all know where this thing is going, we can savor the wonderful journey together. Let’s look at the first lawsuit….

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Chum’s in the water, folks. And here come the sharks.

Since we first learned that ExamSoft ruined the otherwise relaxing experience of taking the bar exam, we’ve anticipated lawsuits. You can’t piss off all the would-be lawyers you can get your hands on and expect to come through un-served. It is known.

One person on Twitter put it this way: “Numerosity, commonality, typicality, adequacy: Pretty sure all harmed #barexam takers could form a class action against @ExamSoft.”

This law firm is happy to get that ball rolling…

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If corporations really were people, ExamSoft would have to go into hiding right now. Did you see how every New Yorker suddenly had a farm implement or a rifle to deal with Sharknado 2: The Second One last night? That’s what would happen if Mr. ExamSoft was spotted strolling past a group of bar exam takers.

But ExamSoft isn’t a person, it’s a corporation, a corporation that royally screwed up. YOU HAD ONE JOB, ExamSoft, and you didn’t get it done. In America, you are supposed to be able to get your money back when a business screws up this badly. Kids paid between $100 and $150 for software that not only didn’t work but almost ruined their lives. Saying “I’m sorry” isn’t going to cut it.

Unfortunately, “I’m sorry” seems to be the only thing ExamSoft is willing to do at the moment…

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ExamSoft made many bar takers cry last night.

In case you’re not already well aware, last night the legal profession stood witness to the biggest bar exam disaster in history. Bar exam takers nationwide were absolutely enraged — as they rightfully should have been — because ExamSoft’s servers were overrun by thousands of aspiring lawyers trying to upload their essays before their state’s deadline came and went.

Instead of going about their business and exhibiting “forbearance with the situation” as requested by the bane of their collective existence, bar takers flocked to Twitter to shake their virtual fists in anger in tweets directed at ExamSoft.

As you can imagine, there were some very entertaining tweets being sent out. If you love schadenfreude and other people’s pain brings you pleasure, you’ll love this…

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Making life hard is a GIANT understatement. Judging from the dozens of furious emails, text messages, and tweets we’ve received over the past few hours, this appears to be the biggest bar exam debacle in history. It’s certainly the most serious bar disaster I’ve ever covered in the eight years since I started Above the Law. Bar takers around the country are in full-on meltdown mode.

Just like ExamSoft, the apparent source of the problems. An unknown number of bar candidates, but surely numbering into the thousands, cannot upload their completed exams to ExamSoft — despite deadlines for doing so (which vary from state to state).

Keep reading for disaster reports from around the country, plus statements from ExamSoft….

(Please note that we will be UPDATING this post, so refresh your browser for the latest.)

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I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Some people assume that strangers are competent. One of my colleagues in our Law Department said to me recently: “Outside counsel says we won’t have much liability in that case.”

I naturally asked, “Is he right?”

She was shocked: “He’s a partner at a well-respected firm. We hired him. I assume he’s competent.”

That got us to talking. My colleague gives strangers the benefit of the doubt; she assumes that people are competent until they prove otherwise. I’m exactly the opposite: When I meet you, my working assumption is that you’re inept. Over time, there’s a chance you’ll convince me that I’m wrong. (But probably not.)

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

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