I have a recurring nightmare. It takes one of two forms: either the California bar examiners tell me that they made a mistake 44 years ago and I did not pass, or worse, attorneys who have been practicing for more than X years must take another bar exam to see not only if they still have cognition, but also if we old folks still could give competent legal advice. I never thought I would be writing about the bar exam 44 years after I passed it, but here I am. And, like many other times, the story strains credulity, but the story seems to have no end.
How many times have you been accused of something and then it’s your job to disprove it, rather than the accuser having to provide proof? And no, I am not talking about all the kerfuffle since the election. I leave that to others. Not my job. As courts have asked, where’s the proof? And this question holds true here.
What I am talking about is the latest flap about the California Bar Exam. I never tire of writing about it because the hits just keep on coming.
The latest? The bar is accusing approximately a third (over 3,000) of the July, oops, October online bar examinees of cheating. Say what? The bar has sent out Chapter 6 notices, stating that there was cheating going on. What are the bases for these claims? It’s all in the videos, or so the bar examiners say.
What are the allegations that bar examiners say are evidence of cheating? How about the following: examinees’ eyes being intermittently out of view of the webcams, audio not working, and examinees not being present behind their computers during the exam? What if an examinee had to sneeze during the exam? I don’t know about you, but I usually sneeze with my eyes closed, and sometimes I sneeze into my elbow, so my eyes would not be seen.
If the audio is not working, whose problem is that? I would think that the bar would have overseen making sure that everything worked. What about the claim of not being present behind their computers during the exam? What if you had to leave the screen to use the bathroom and it couldn’t wait?
The examinees whose video files were flagged because they are suspected of cheating, and cheating not in the traditional sense, apparently not the most recent West Point scandal (same answer given on a part of the exam) but in the sense defined by the bar examiners.
How do you prove a negative? If the audio worked perfectly during the mock exam, why would there be any reason to believe that the same would not hold true during the actual test? How do you, as the examinee, explain that there was no cheating? Several disciplinary defense counsel say that the notices that their clients received were unsigned and undated Chapter 6 notices. The notices give the examinees 10 days to respond. Ten days from when? And how to respond? Do I say the word “snafu?”
What happens if the bar exam office determines that there was a violation? That examinee then can get his/her first test of the labyrinth of the law, requesting an administrative hearing, then an appeal to the bar examiners, and ultimately to the Supreme Court. How long will all that take? How much in fees — most examinees are already hurting financially — will have to be paid to resolve it? What if the process clears the examinee? Any provision for attorneys’ fees? What do you think?
The real rub is that these examinees’ bar scores will be held in abeyance so that these examinees will not be able to take the February bar, also to be held remotely. That’s so wrong.
These poor examinees have had to put up with so much tsjuris (Yiddish for grief and aggravation) this year, and there’s no need to refresh anyone’s recollection as to exactly how much there has been.
Delaying bar exams results until January is bad enough. Now the bar wants to further penalize exam takers by not letting them sit for the February bar while determinations of previous bar scores are pending. So, examinees may now have to wait until the summer bar, whenever that might be, to sit for the exam, a full year later than expected. Tell that to your student debt lenders, tell that to your family and creditors, not to mention firms that might have held jobs open. And while waiting to learn whether you cheated and whether you can sit for the February bar, read John Grisham’s The Rooster Bar. It’s a tale not talked often enough about law school debt.
We’ve had stories this year about ExamSoft software not being able to recognize people of color. Perhaps that could be a cause of the purported “cheating”? Racially discriminatory monitoring?
This is shadowboxing. At least in litigation, you know who the opponent is and what the claims are, more or less. Examinees who have received notices are hiring counsel to represent them in this mess, and I just don’t believe that all 3,000-plus examinees cheated. These examinees, most of whom are awaiting bar results to job hunt and eventually find jobs — not that there are any out there right now — who are mired in student debt with payments already due, now must shell out money for counsel to prove a negative. Ridiculous.
What Merry Christmas? Santa has just deposited not lumps of coal, but bags of shit for a third of the California October bar test takers. So not ho, ho, ho.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.