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Bar Examiners Get Tested In Court

A major software glitch could reward bar examinees who filed lawsuits.

Photo by Shannan Muskopf

The North Carolina Bar Exam tests twenty-seven subjects ranging from corporate law, to criminal law, to wills and trusts.  One “rule of law” that is not covered by the exam is Murphy’s Law, the principle that whatever can potentially go wrong will invariably go wrong.  This principle was in full effect on July 30 and 31—the days when the Bar Exam was administered.

Shortly before the July 2014 Bar Exam, the National Board of Law Examiners introduced an updated version of the software on which students write their answers to the Bar Exam questions.  On the day of the Bar Exam, this software experienced technical glitches nationwide which caused the submitted exams to take a long period of time to upload.  As a result of this malfunction, many students left the testing centers later than expected, uncertain about whether their answers were uploaded successfully. The uncertainty and anxiety that many test-takers felt led many students nationwide to put their legal educations to use by suing the National Board of Law Examiners.

The Bar Examiners charged students between $125 and $150 to use the software and many of the lawsuits that have been brought by students seek a refund of this amount.  In other lawsuits, students are seeking to recover for the emotional stress that the experience caused them to suffer.

Forming Class Actions Helps Test-Takers Avoid their Claims Being Invalidated.

Many students have brought class action lawsuits in order to force the Bar Examiners to refund the failed software’s user fee.  This strategy is effective in bringing together a large percentage of the group of test-takers. A reward of $150 is far exceeded by the cost of litigation, a cost which may deter many test-takers from suing. Through a class action lawsuit, however, these costs can be shared.

A class action lawsuit solves an additional obstacle faced by these students.  In order for a lawsuit to be successful, the plaintiff has to have suffered harm as a result of what occurred.  If a student fails the Bar Exam as a result of the software failure, that would likely be a valid harm.  The exam results in many jurisdictions have not yet been released and, as a result, it is unknown whether the plaintiffs have suffered such an injury.  If the exam results were to reveal that the plaintiff whose name is attached to the lawsuit passed the Bar Exam, the claim would be invalidated.  With a class action lawsuit, are greatly increased that one of the members of the class has failed the Bar Exam.

Test-Takers Will Likely Be Able to Successfully Sue for Breach of Contract.

Another cause of action that could be brought against the Bar Examiners by students is a claim for breach of contract.  A breach of contract involves showing that a party to a contract did not fulfill its side of the bargain.  In return for the students’ $150 user fee, they were to be given the ability to use the exam software with an implied promise that it would function properly.  A breach of contract claim would likely be successful because the Bar Examiners charged students for the use of a product that proved not to work as promised.  The likely remedy for this breach would be a refund of the test-taker’s software user fee.  This is a principle known as restitution, and it would involve a court deciding that it would be unjust for the Bar Examiners to receive payment for the use of the malfunctioning software.

The Bar Examiners could argue that none of the students suffered a harm because the they extended the deadline for students to submit their exams.  From the Bar Examiners’ perspective, none of the test results were invalidated because of time, meaning that no student was disadvantaged because of the software glitch.  By the time the decision was made to extend the deadline, however, the damage had already been done.  At the critical point when the exam was supposed to be uploaded using the software, it ceased to function.  While recovering on the breach of contract claim would reimburse students for the amount that they arguably lost as a result of the software glitch, many students also hope to recover compensation from the Bar Examiners for the emotional turmoil that they incurred.

Students who took the Bar Exam will face difficulties in suing for Negligent Infliction of Emotional Distress.

Students who took the Bar Exam who are now hoping to recover for the anxiety that was caused by the uploading difficulties will likely have brought suit for a claim known as negligent infliction of emotional distress.  This is a cause of action that allows plaintiffs to recover for mental anguish that a defendant caused.  In order for a plaintiff to successfully sue for negligent infliction of emotional distress, she has to show that the defendant was negligent in engaging in certain conduct.  If the Bar Examiners rushed the exam software into operation before it was fully tested, such conduct would likely be sufficiently negligent.

The Bar Examiners have not disclosed whether they tested the exam software prior to exam day.  The discovery procedures involved in a lawsuit will compel the Bar Examiners to reveal this information.  If the facts show that the Bar Examiners did not adequately test the software before it was used nationwide by students, then it would expose that the Board did not exercise due diligence and were negligent.  Knowing that students would rely on the exam software and failing to take action to anticipate problems that could arise would not be a reasonable course of action.  However, if the Bar Examiners attempted a limited test run of the software prior to the exam, then this claim of negligence would likely fail.

In order for a plaintiff to recover for negligent infliction of emotional distress, it must also be shown that it was reasonably foreseeable that the defendant’s negligent conduct would cause the plaintiff to suffer severe emotional distress.  The testing environment on the day of the Bar Exam is characterized by high stress for most test-takers.  This stressful atmosphere derives from the fact that the students’ futures in the legal profession are largely determined by whether or not they pass the exam.  In such an environment, it is easy to anticipate that major unexpected difficulties, such as problems with submitting test results, would cause a student to suffer mental anguish.

Showing the emotional harm that the plaintiff test-taker suffered because of the failure of the exam software may prove difficult because to do so requires proof of a significant amount of injury.  The final showing that a plaintiff must make in order to recover for negligent infliction of emotional distress is that she did in fact suffer severe emotional distress.  For the purposes of this claim, the plaintiff’s temporary anxiety or fright will not be enough to say that she has suffered severe emotional distress.  When the law uses the term “severe emotional distress,” it means that the plaintiff developed an emotional or mental disorder including, “neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.”  While a test-taker would likely be able to show an injury such as the fact that she was unable to sleep because of the stress brought about by the uploading problems, it is much more difficult to demonstrate that she developed a cognizable mental illness as a result of these events.

“Barmageddon,” as the uploading difficulties became known, could prove to be a costly problem for the Bar Examiners.  The Bar Examiners may be held liable for breach of contract, which would require the Board to return some of the money that students were charged to use the exam software.  It is highly unlikely, however, that the Bar Examiners will be forced to compensate students for the emotional strain that the software glitch caused.  The law relating to negligent infliction of emotional distress is a favorite test subject of the North Carolina Bar Examiners, and it will likely come to their rescue in the lawsuits that they now face.

John Mace, Former Senior Staff Writer
About John Mace, Former Senior Staff Writer (19 Articles)
John served as a Senior Staff Writer for the Campbell Law Observer. He is originally from Concord, North Carolina, and graduated from the University of North Carolina at Chapel Hill in 2012 with degrees in Political Science and History and a minor in Philosophy, Politics, and Economics. John worked as an assistant for Sha Hinds-Glick with the Bar Success program at Campbell. He graduated from Campbell Law School in May 2015.
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