PORTLAND, Ore. (AP) — Five law students have sued a Florida software company over a computer submission system that malfunctioned while they and thousands of others across the country were taking the bar exam one day in July — showing that future attorneys may be the last people you want to anger.
With one day of the grueling session behind them, law students taking the bar exam with computers on July 29 were surprised to find they couldn’t upload their answers using software they purchased from ExamSoft Worldwide Inc.
Five students have sued the company — two in Washington state, two in Illinois and one in California, claiming 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.
“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.”
The company, through a public relations agency, declined to comment on the litigation.
No one yet knows whether a student might have 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 plaintiffs argue that ExamSoft should have seen the problems coming — a tidal wave of test-takers operating on new software.
The company said in a statement that it believes the problems were caused by a server configuration issue, not by the number of students using the servers.
“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 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.
Knotts said 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. But her career 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.”
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 use computers are instructed to go home and upload their answers by midnight. A failure to do so results in a zero on the exam.
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 its 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.”
Reach reporter Nigel Duara on Twitter at http://www.twitter.com/nigelduara
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