Less than a week after a software glitch sent bar-examination takers scrambling to upload their answers, disgruntled law graduates have filed two class actions against the company that provided the testing software.
Phillip Litchfield, a May graduate of Chicago-Kent College of Law, filed his claim against ExamSoft Worldwide Inc. on Aug. 4 in U.S. District Court for the Northern District of Illinois, seeking more than $5 million on behalf of bar-exam takers.
A day later, Wake Forest University School of Law alumnus Catherine Booher and Gonzaga University School of Law graduate Christopher Davis became name plaintiffs in a class action against ExamSoft in U.S. District Court for the Eastern District of Washington. They, too, seek more than $5 million in damages for the class.
“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,” the Washington state complaint says. “It is hard to imagine anything more basic in an exam than being able to turn it in for grading.”
Bar examiners use ExamSoft’s software to manage delivery of their tests to candidates who use computers. Test takers pay between $100 and $150 to download the software, which allows them to upload the written portions of their tests for grading, according to the complaints.
But when takers attempted to upload their answers after the first day of the exam on July 29, many encountered a glitch that held up their answers for many hours. A number of jurisdictions extended their submission deadlines, but some test takers were left frustrated and rattled.
ExamSoft spokesman Ken Knotts had no immediate response to a call for comment. In press accounts, the company initially blamed a high volume of test takers attempting to upload answers at the same time, but acknowledged the situation was unacceptable.
“The total collapse of the ExamSoft upload system (including its upload servers, website, and phone system) stemmed from wholly insufficient infrastructure that was unable to process the thousands of bar exam results in real time,” the Illinois complaint says. “This failure occurred despite the fact that ExamSoft knew well in advance of exam day exactly how many applicants had registered and paid to use the SofTest program.”
The Illinois suit seeks compensation for the emotional distress test takers suffered as they waited to find out whether their exam answers had uploaded properly.
The Washington suit makes a similar claim. “Not surprisingly, the thousands of exam takers who were unable to upload their exams were extraordinarily distressed,” that complaint reads. “Far from providing the stress-reducing functionality it advertised, ExamSoft added an extraordinary burden to an endeavor already fraught with stress and worry.”
Named plaintiff Booher was unable to fully upload her first-day answers until halfway through the second day of the exam, the suit claims—a huge distraction during the test itself.
ExamSoft’s refusal thus far to offer refunds to test takers has rankled people across legal education. The Above the Law blog ran a post titled: “Dear ExamSoft: Please Give Kids Their Money Back Before the Internet Murders You.”
Northwestern University School of Law Dean Daniel Rodriguez made a similar point on his personal blog in response to a letter of apology sent to law deans by ExamSoft chief executive officer Daniel Muzquiz. The letter reviewed the problems and promised to do better. But Rodriquez suggested refunds would be in order, given the “serious toll” on bar takers.
“Such a gesture, whether or not legally compelled, would be the right thing to do, in my opinion,” Rodriquez wrote. “While I by no means speak for anyone other than myself, I would respectfully suggest that you consider, if you have not already, some tangible steps that meet this clear moral obligation to make amends. I call upon you to reflect further upon this unfortunate episode and do the right thing.”