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Sunday, April 5, 2020  Spokane, Washington  Est. May 19, 1883
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Glitch in law exam software prompts lawsuit

Editor’s note: An earlier version of this story incorrectly identified the agency in charge of administering the bar exam in North Carolina. The North Carolina Board of Law Examiners is in charge of administering the test. The story has been updated to correct the previous error.

An alleged computer snafu so sinister it birthed its own hashtag has prompted a class-action lawsuit filed in Spokane that could affect thousands of law students and the country’s largest supplier of bar exam software.

“This is a case that everyone can relate to, in the entire profession,” said Gretchen Freeman Cappio, partner at Seattle-based law firm Keller and Rohrback. She is one of the attorneys representing graduates from Gonzaga Law School and elsewhere who accuse Florida-based ExamSoft of consumer protection act violations and gross negligence.

In what Cappio called a “meltdown of epic proportions” – and what distraught Twitter users dubbed #barghazi, referencing the 2012 attack on a U.S. diplomatic compound in Libya – thousands of bar-exam takers nationwide reported an inability to upload exam answers last month. They were using proprietary software provided by ExamSoft, which had promised a “more reliable” and “less stressful” exam-taking experience than pencil and paper.

Gonzaga graduate Christopher Davis was one of the law-school graduates who’d paid roughly $134 for the software. But when Davis returned to his hotel room in Yakima after the first day of the three-day test, he was greeted by a yellow screen informing him his answers could not be uploaded for grading.

“Exam takers lost a lot more than money,” Cappio said. In the civil complaint filed Tuesday in the U.S. District Court of Eastern Washington, Davis said he spent the next 30 minutes feverishly submitting his answers to no avail.

The complaint says that Davis was able to turn in his exam by the deadline, but he suffered mental anguish because he did not know for hours that the exam was successfully submitted.

Thousands of miles away, Catherine Booher, a December 2013 graduate of Wake Forest University, was having similar problems uploading her essay from a North Carolina hotel. According to the complaint, she attempted to upload her answers so many times the software stopped offering her the option to upload again.

At some point during the evening, having been alerted to the computer woes, the North Carolina Board of Law Examiners extended its window to receive answers through ExamSoft. But Booher said she did not know about the extension until she checked her email the next day and was only able to send her essays during the lunch break of her second day of testing.

On July 30 and 31, the ExamSoft Twitter account sent out updates indicating which states had extended their deadlines for accepting exam answers because of the issues. But hopeful lawyers, many of whom had experiences similar to those of Davis and Booher, had already taken over the social media discussion, dubbing the incident #barghazi and using the #examsoft tag to share tweets that ranged in sentiment from outrage to amusement.

“I wonder if #examsoft has in house counsel? If not, they probably should,” read one tweet.

“Are the folks at #examsoft the same who did the Obamacare website?” read another.

“Surprise! The #barexam has a bonus tort question. Unfortunately, it’s a real-life situation where #examsoft screws us over,” another user tweeted.

In a letter posted by Northwestern Law School Dean Daniel Rodriguez to his personal blog, purportedly from ExamSoft CEO David Muzquiz, the Florida company’s executive apologized for the technical issues but did not say if refunds for the software would be given.

“Our performance this past week was inconsistent with the standard we’ve set over the years, and we are committed to doing better,” the reputed letter from Muzquiz reads.

Requests for comment from company spokespersons were not returned Thursday.

It’s unclear if any ExamSoft users missed the exam deadline as a result of the software glitch.

Gonzaga will review its use of ExamSoft software following the bar exam issues, said Andrea Parrish, a spokeswoman for the law school.

“That would be a huge change in our policy,” Parrish said of a potential switch, adding there aren’t other companies that offer the wide array of services to the school available from ExamSoft. Bar examiners in 42 states accept ExamSoft’s digital delivery service for exam answers, according to its website.

The incident also has sparked a class-action lawsuit in Illinois, according to federal court records. Both lawsuits claim the potential civil damages could reach more than $5 million.

ExamSoft has received a summons in both cases. A lawyer has not yet been named in the Spokane lawsuit, according to court records.

Cappio said that although it’s early in the proceedings, she is optimistic about proving her case.

“This, quite frankly, is a no-brainer,” she said. “It’s the kind of case a lawyer dreams about.”

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