February 26th, 2008

I Passed The New York Bar Exam!!!!

Friends, law stories don’t get much better than this. It started with the New York bar examiners losing my test results in the summer of 1985. And it ends 22 years later in the wake of another New York bar exam fiasco, this time with lost essay answers on laptops due to a software glitch. This graduate, who was told that he failed the July 2007 exam, will not be taking the February bar exam being given today. This is his story…

Guest Blog by Eric Zeni
(awaiting admission)

My experience with the bar exam was previously featured on this blog; in a guest posting, I recounted how I was affected by the software malfunction that caused my laptop to crash while writing the exam and seemingly erased one of my essays. When results came out in November, I learned I failed the exam by four points. I later received copies of my essay responses back and discovered that one of my essays was still incomplete — an essay which I had begun typing and was forced to finish by hand when my laptop crashed. I later learned from the Board of Law Examiner’s office that there was some type of a review being conducted, and it was then that I began to seek more information. I contacted Eric Turkewitz because I had seen the coverage he had given to the software malfunction and grade approximation on this blog, and I asked if he had heard about a review. Although seemingly no one had heard of this development, Mr. Turkewitz was helpful and called the BOLE office himself and confirmed the existence of the review, which encouraged me further.

I wrote my request unsure of how it would be received or what I could ultimately expect. The only information BOLE had told me was that the Executive Director would be conducting the reviews. I was well aware that BOLE does not take appeals and that this was uncharted territory. In my request, I explained what occurred on the day of the exam, and I attached copies of emails that I had received from the software company which confirmed that my exam had been uploaded and also from BOLE stating that they were in receipt of all my printed and handwritten essay responses. Despite those assurances, I explained, I discovered that my essay was still missing. I stated how devastating it was to learn I failed the exam, but what an injustice it was to discover that the graders had not graded my complete response. Finally, not knowing what to expect, I respectfully requested that my exam be ‘reviewed.’

I waited about two or three weeks without hearing anything. Each time I called the BOLE office, I was told the Executive Director was reviewing the requests and that he would be in touch. Finally, around year end, I asked to speak with the Executive Director, who returned my call later in the day. When I spoke with the Board’s Executive Director, John McAlary, he asked if I had any questions before he explained the situation. I told him that while I obviously wanted a favorable outcome, what I desired most was finality and some resolution as the February exam was fast approaching and I needed to know how to proceed.

Mr. McAlary explained that after receiving my request and looking into the issue of the missing portion of my essay, they were able to go back to the software company’s computer archives and retrieve my essay. My retrieved essay was then submitted to a grader, who determined that I passed. At that point, the Board had to determine whether or not it would change my result. Finally, Mr. McAlary said that he was happy to be the bearer of good news, and that the Board had decided to change my result and that I had passed the bar exam!

I was amazed. Certainly this was the outcome I had hoped and prayed for, but I never figured it would be possible. Speechless, I thanked Mr. McAlary, who congratulated me, and we ended our conversation. I then told everyone what had happened, and it seemed that everyone else was even more excited than I was. When I shared the news with Mr. Turkewitz, he was very happy and congratulated me for having won my first case, and for having successfully achieved a reversal when BOLE was adamant there was no appeal. It took awhile for it to sink in that I had passed and would never have to study for the exam again. Once I fully realized, I was extremely happy that my ordeal was over and felt vindicated by the good news. I worked too hard this summer to have failed, and to have missed the mark by only four points was heartbreaking. Although I never expected it to be reversed, I was always determined that come what may, I was not going to take that exam again. I finally received my official notice on December 31, 2007, stating I had passed the bar exam and certifying me for admission to the Appellate Division, Second Judicial Department. It was a great feeling to finally have that piece of paper in my hands and I finally felt the joy and relief that I am sure everyone else who passed the exam had felt weeks before.

I truly empathize with those taking the bar exam this week. I’ve often thought of all the time I would have spent in the law library studying again day and night, and especially since I’d be taking the exam again now. Getting that bad news is devastating, and it takes a lot of strength and tenacity to bounce back from it. In the time since everything has been resolved, I have been eagerly looking for a job. I am looking forward to being admitted and am anxious and excited to begin my career as an attorney.

It took me a long time to decide whether I even wanted to write the conclusion to my story. It’s been weeks since Mr. Turkewitz first asked me to do a follow up to my original posting. I’ve recently had occasion to share this story, and each time I do, everyone seems to enjoy it and people remark what an extraordinary story it is. Although my life would have been much less complicated had I originally received good news in November, I am clearly pleased with the outcome. I am thankful that I passed and that the Board rectified the situation. I owe thanks to Mr. Turkewitz for his advice and assistance, to John and Damian Pieper for their thorough preparation and support, to my friends for their support as we studied for the bar this summer and as this continued to unfold, and especially to my family and girlfriend for their love and support. And most importantly, I thank God that I do not have to take the bar exam again!

–Eric Zeni

[The idea to write my own story from 1985 came from Above the Law at this post. Had it not been for that request for anecdotes, I probably would not have written the story up and become involved in the issue, and Zeni and I would never have spoken. — E.T.]

Update, 2/27/08: Bar Exam Reversal: How Did New York Bar Examiners Screw This Up?


January 3rd, 2008

New York Bar Examiners Now Demand Liability Waivers

After a colossal screw-up with the July 2007 New York bar exam — in which some of the essay answers were lost for hundreds of people who had typed them into laptops — the New York Board of Law Examiners (BOLE) is taking action. Now they will demand a liability waiver that protects them from future screw-ups. This follows on the heels of the examiners claiming to have graded exams based on approximations, some of which have been called into question.

Why demand the waivers? Because getting liability waivers is apparently much easier than actually fixing the problem. This way, BOLE can hire a new software company and not worry about actually vetting the technology. If there is another screw-up, they can just waive the piece of paper around in the poor test-takers face and say, “Sorry!”

Now BOLE hasn’t been sued, mind you, but that doesn’t matter. They still want their liability waiver that will absolve them of any actual responsibility for doing their jobs.

The enforceability of such a waiver, I think, is probably pretty doubtful. I say that even though I haven’t seen it (only a small part is quoted in the article). First, it is against public policy in New York to enforce liability waivers regarding negligence. Second, it isn’t exactly as if the test-taker can go to a competing agency to be admitted to the New York bar. They are the only game in town, and I don’t see how they can use that leverage to coerce an agreement to waive their own liability. Public policy stands in the way, though the argument could be made that the test-taker can write the answer out by hand. Nevertheless, I see this as a problem for the BOLE to try to absolve themselves of liability when they run the show.

Now here’s a thought for the Bar Examiners: Maybe you folks should just make sure the software you use works?


December 14th, 2007

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?

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.

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!!!!

Links to this post:

Product recalls for goods made in China have been making the news all year, and last week’s recall by Dollar Tree Stores of 300000 Chinese baby bead toys and toy cars due to lead was yet more example of how the cheap business solutions
posted by Hanna @ December 17, 2007 6:32 AM


November 26th, 2007

How, Exactly, did New York Grade That Bar Exam?

The New York State Board of Law Examiners managed to foul up this year’s bar exam, as readers of this space know, by losing many of the essay answers that had been submitted on laptops.

I covered it when 400 answers were still unaccounted for at the end of August: New York Bar Examiners Still Can’t Find Complete Essay Answers.

And after the results were made known 11 days ago, and the examiners claimed to have taken educated guesses on the missing results, I wrote about it here: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers

But over the holiday weekend, this anonymous comment appeared on my site, claiming that credit was given for an essay with no answer, and the same credit was given for an essay with a great answer. And there was no indication that this person was told his/her essays were part of the missing ones:

Here’s a fair summary (having taken the test, having intense problems down loading and uploading the test) and failed: I left one NYS essay blank. (Ran out of time) I received a 3/10. That’s odd…But then, on the essays I KNEW–KNEW so well that I was practically jumping for joy as I took the test–I received a 3/10 on those as well.

BOLE claims they have informed all those who had computer essays lost–I suspect not. I have written away for my answers and I will be intensly interested to see how that blank esay scored a 3/10…I suspect they were ALL blanks, because of the uploads.

If anyone else is in this prdicament, please chime in. There are a few attorneys that specialize in this, and I’ve contacted a few.

Which leaves all to wonder, especially those that were given a failing grade, exactly how the Board Examiners actually graded the essays. Or if they did at all.

Addendum: There is some discussion at Above the Law about the continued weirdness of the NY exam, and as to the legitimacy of the comment, and understandably so. I am reprinting an exchange from that site where I gave the reason I thought the comment was legit:

Anonymous: Most likely story: 1) Guy is a moron – gets 3/10 on ‘esay‘ he KNEW; 2) BOLE sees blank essay – thinks guy had software problem; 3) BOLE gives guy 3/10 on blank essay, which is his average from the other essays.

Me: That was also my initial reaction. But the writer seems to indicate that s/he was not notified that s/he had a missing essay.

And the fact that the comment was submitted on an 11-day old post (actually 7 days at the time it was made) on a small blog meant it was likely to only be seen by a few, so a hoax didn’t seem likely either.

This gave it a certain ring of truth.

We’ll see if it amounts to anything.

2nd Addendum 12/16/07 — There is an appeals process that BOLE has not publicized: New York Bar Examiners Will Entertain Appeals Over Laptop Problems

Links to this post:

blawg review #137
if it’s december, it must be time to trot out another dante-themed blawg review! following the inferno-themed blawg review #35 and the purgatorio-themed blawg review #86, the divine comedy’s third cantica, paradiso, provides the theme
posted by Colin Samuels @ December 03, 2007 3:01 AM


November 15th, 2007

NYS Bar Examiners Do Grade Approximation For Missing Exam Answers

The New York Bar Examiners reported grades today for the July 2007 bar exam that included a scandal whereby essay answers that had been submitted on laptops for 47 students had disappeared. The Board of Law Examiners did a grade approximation for 15 of those students and failed six of them based on an approximation of grades. The other 32 students either passed or failed based on the rest of the exam. The information was disclosed as part of this press release on the passing grades and the availability of exam results.

The release had this to say about questions regarding the missing essay answers, which I had covered previously (New York Bar Examiners Still Can’t Find Complete Essay Answers):

…one or more of the essay answers for 47 candidates could not be recovered. Fifteen of these candidates passed the examination based on their performance on the balance of the examination, with no credit being given for any missing essay. Seventeen candidates failed the examination even when attributed a perfect score on any missing essays. The remaining 15 candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed. The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this methodology, which resulted in nine of the remaining 15 candidates passing and six failing the examination. Candidates with missing essays who were unsuccessful on the examination have been notified by the Board as to how their results were determined.

As to the exam results for the rest: The 15 New York law schools had a record pass rate for first time test-takers in the July 2007 exam, with 88.2%. According to the press release:

Not only did this group achieve a historically high passing rate, they also surpassed the passing rate of their counterparts from American Bar Association-approved law schools outside of New York. The passing rate for graduates of such law schools who took the bar examination for the first time in New York this July was 85.7%

When accounting for foreign students taking the exam and their 45.6% rate, the total pass rate was 70.6%

Exam results can be found at this link.

Addendum: 11/26/07: How, Exactly, did New York Grade That Bar Exam?