New York Bar Examiners Will Entertain Appeals Over Laptop Problems

The New York State Board of Law Examiners has confirmed to me that they will hear appeals regarding the July 2007 exam. That exam was plagued by malfunctioning software for those that submitted essays on laptop computers, only to see all or part of the answers disappear. (See: New York Bar Examiners Still Can’t Find Complete Essay Answers.) The BOLE subsequently said that they approximated the answers if they were incomplete, based on how the examinees did on other answers. (See: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers). Those grade approximations were subsequently called into question based on an anonymous tip in this blog. (See: How, Exactly, did New York Grade That Bar Exam?)

The appeals, which must be submitted in writing, will be heard by the Executive Director, John McAlary.

My call to the BOLE was prompted by prior comments and personal contacts, which ultimately resulted in the guest blog that now follows. This appeals process, to my knowledge, has not been previously documented.

Bar examiners with a secret appeals process. Who’d a thunk it?
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By “Anthony”

I sat for the July 2007 bar exam in the laptop program. Prior to the exam I downloaded the software and completed a practice test with no problems. The morning of the exam, the software crashed as I was writing essay one. A technician restarted my laptop and I completed essay one. I moved on to essay two and about halfway through, the software crashed again. I called a technician to restart the computer, and fed up with the situation, decided to finish the exam in the answer booklet. I started handwriting the exam, finished my response to essay two in the answer booklet, and moved on. Towards the end of the morning session, I found myself with a little time. The technician had restarted my computer while I was still handwriting my answers, so I decided I could review what I had written on the computer or at least make sure everything was there. When I attempted to look at what I had written on the computer, I discovered that the program had duplicated what I had written for essay two, and overwritten it and replaced my response to essay one. As if it wasn’t bad enough having the software crash on me while I was trying to write the exam, now I discovered that a whole essay had apparently been erased by the software. I called this to the attention of the technicians, who physically took my laptop to another part of the room and worked on it for the rest of the day. The whole incident was frustrating and frightening and made it difficult to concentrate and complete the exam. When I think back, I am actually proud that I went back that afternoon and finished the exam. I finished the rest of the bar exam and was told by the technicians and the head proctor that there was some type of backup system with the software and that they would be able to retrieve my exam. Obviously, I had no faith in the software company and spent the next few months worrying whether my essay had been lost.

Toward the end of August, I received an email from the software company requesting I upload additional files. I did that and received a confirmation from them. About a week later I received an email from BOLE stating they were in receipt of my printed and/or handwritten responses to all the essays. Still fearful that my essay had been lost, I emailed the software company to double check. I explained that while BOLE claimed to have my essays, I wanted to be sure they had the correct response and what I had actually written. The software company replied and said that they were able to retrieve what I had typed before it was overwritten. I was relieved to hear this and now merely spent the next few months like everyone else, worrying whether I passed or not.

The day the results came out in November, I checked the BOLE website and learned I was unsuccessful on the exam. A few days later I received my official notification in the mail, and learned that I had failed the exam by only a few points. It was then that I began to suspect something, so I ordered copies of my essay responses along with the questions and sample answers. I received these around the beginning of December, and as I looked through my responses I discovered that while the software company had retrieved the answer I had typed for essay one, it was an incomplete version. During the exam, after the technician had restarted the program, I completed my response to essay one. The answer BOLE sent back to me clearly trails off mid sentence in the analysis portion of my response and is clearly incomplete. Further, I had begun typing my response to essay two on the computer, and when I looked through my responses from BOLE, only the handwritten second half of the response was present. The handwritten portion of this response contains only a few sentences of my conclusion and is missing my recitation of the relevant law, and all my legal reasoning and analysis.

I began calling BOLE to see where the rest of my responses were. After about two weeks, they finally told me that whatever they had sent to me was all they had. The secretary I spoke with asked whether I had written to request a ‘review.’ I asked her why I would have done that when the Board’s stated and official policy is not to entertain appeals of the exam results. I was only told that I should put a request in writing. Later, as I attempted to draft the letter, I called the BOLE office back to get some instruction on exactly what I should request. I spoke with the same secretary and said that I wasn’t sure what I should say and what I should expect or request from the Board. I again asked what exactly this review was and what was to be expected since the Board states there is no appeals process. Finally, the secretary told me that BOLE has been receiving a lot of correspondence from candidate’s attorneys requesting a review, and that the Executive Director of the Board was accepting these requests. I asked her what I could expect out of all this and she said that all she knew was that they would investigate and “try to come up with something.”

I drafted a letter to the Executive Director outlining what occurred during the exam, detailing the missing and incomplete responses I received back, and requesting that my exam be ‘reviewed’ as well. I do not know what to expect from this review, and I do not know what the board will be able to come up with. The bar exam and all the laptop problems was frustrating enough, but to have been told that they had my complete responses and then to discover that what was graded was incomplete and missing feels like a tremendous injustice. I am still waiting to hear back from the Board and I hope that they make some kind of decision regarding this issue soon.
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Update: 2/27/08 — My pseudonymous guest blogger follows up on the results of his attempt to appeal the decision to fail him:I Passed The New York Bar Exam!!!!

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