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?
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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!!!!

Links to this post:

BLAWG REVIEW #139
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

 

December 14th, 2007

Random Notes

Random Notes is for subjects I want to blog about or rebroadcast, but just don’t have the time to do well:

A doctor is accused of sexual assault on his patient, and in order to get the benefit of his insurance coverage, claims it was treatment. The insurance carrier is not amused. (New York Legal Update);

A judge pays off bet with beer (Sentencing Law and Policy);

Blawg Review #139 celebrates Human Rights Day at De Novo;

Health Wonk Review is up at HealthBlawg;

In Massachusetts, the duty of a doctor has now been extended beyond the patient, to those the patient might injure while on the drugs prescribed by the doctor (TortsProf);

Hospital systems should be designed to anticipate human error (NY Emergency Medicine);

The Seventh Amendment right to a jury trial gets analyzed by the Ninth Circuit (Deliberations)

There’s a new kid on the block…a brand, spanking new blog from the defense side: Medical Devices: Law, Trends and Oddities

 

December 13th, 2007

Personal Injury Lawyer, Ryan Bradley, Using Blog for Blatant Solicitation

I’ve avoided doing a post like this for many months, but figured this is the time as one lawyer seems to have stepped over a line from using his blog for commentary or even advertising and gone to outright solicitation of a particular individual.

Kevin O’Keefe first reported on St. Louis attorney Ryan Bradley discussing a local accident and using the name of the injured person in the post heading, in a rather blatant hope that the injured person, family member or friend would Google the accident to see if anything was written about it, find the post, and call him.

Now he has done it a second time in a week, with this post here **

There are, it seems, four types of blogs, though I am using the word “blog” very loosely here since I don’t think it truly applies in either #3 or #4:

1. The pseudonymous blogger. Without a real name and contact information, the blogger writes for pure enjoyment and without any business desire.

2. Blogs that comment on the law and recent events the same way as the pseudonymous blogger, but with a name and contact information. Such a blog might have a beneficial marketing side in making the blogger more prominent in the community and be used as a form of legal networking, though I think most that stick with it do it for the pure enjoyment of writing. This is similar in concept to publishing an article in a legal trade, though it is of course much easier to do and isn’t peer reviewed. This represents most of the legal blogosphere to date.

3. Blogs that are advertising. These blogs discuss some general matter of the lawyer’s practice, or more likely a local accident, and then scream, “call me!” The personal injury sites have many of these, and the “call me!” works to destroy any actual content that might have been posted.

4. Outright solicitation: I don’t know what the Missouri ethics rules are on solicitation, but Ryan Bradley’s blog postings clearly fit into the solicitation category. He puts the name of the injured person in the heading and the body, and looked up the accident report and insurance information to post that online also. Thus, he goes beyond the mere advertising, and into outright solicitation of an individual. Even if he is ethically secure on First Amendment grounds, what he has done certainly appears scummy and is a close cousin to sending a solicitation in the mail to the house. Or picking up the phone and calling. Or sending a person to the house. Or the hospital. You know where I’m gong with this. Solicitation is but one step removed from actual ambulance chasing.

I don’t have the type of site that awards a “worst lawyer of the day,” that is more of an Above the Law type of thing, but if I did, Bradley would surely get it.

The irony in all this is that when folks now Google Ryan Bradley of Missouri in the event they do stumble over his “blog” they will also find out what other lawyers think of his solicitations.

Addendum 12/17/07: Attorney Solicitation 2.0 — Is It Ethical?

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** This link is via TinyUrl, which will redirect to the blog posting, but due to the masking created by redirection, will not add any Google pagerank to the blog. More on TinyUrl at Wikipedia.

Links to this post:

great moments in client-chasing
injury law firms in st. louis and seattle run promotional blogs for which they’ve been generating content as follows: a post summarizes (presumably from police or news reports) a recent local road fatality or injury naming the victim …
posted by Walter Olson @ December 16, 2007 12:02 AM

 

December 12th, 2007

The Worst Courthouse in America?

I’ve had the misfortune of appearing in the Bronx County Family Court a few times in the past. And I’ve almost blogged about my experiences because they were so horrible.

And by horrible, I mean that the people who appear for family disputes and custody hearings can’t even get into the courthouse and to the hearing rooms because of broken elevators. It can easily take two hours just to get to the hearing room. Then the hearings get adjourned until another date because everyone isn’t present.

Today, the New York Times has a piece on this very problem, front page of the Metro section, above the fold.

Many law blogs discuss great principles of the law. But principles mean nothing if you can’t get in the door to argue your case.

British Prime Minister William Goldstone once said, “Justice delayed, is justice denied.” And nowhere is that more true than in the Bronx Family Court.