SEE LETTER BELOW

Update 35.  On February 1, 2016 this matter was brought to the attention of the Civil Courts Subcommittee by Delegate Vivian Watts of northern Virginia.  After looking at the facts of my case, she agreed that the time has come to bring transparency to the Virginia Board of Bar Examiners, especially now that it is operating a computer-based test.  In Richmond, she brought forward House Bill 550, which is to ensure that all applicants have access to their essays as originally intended by the Legislature.  I was also called as a witness to the system software failure that took place affecting me and many dozens of others at the test site who were then told we could not see what impact there was on our essay answers.  Present at the hearing were the committee members, led by Chairman Greg Habeeb of Southwest Virginia as well as an audience of Virginia residents.  Delegate Habeeb is very public about the need for transparency and accountability in government.

Delegate Watts spoke first, explaining that the bill is in line with what 43 of the States are already doing and offers much needed transparency and accountability in the grading process.

I explained to the committee that I serve as a magistrate and have since passed the bar in multiple jurisdictions, on the first attempt, and scored highly.  I am and have always been certain that the essay score I received for the Virginia Bar Exam was inaccurate and highly likely a result of the system software malfunction I and numerous others experienced at the test site.

In my statement I first laid out a blow-by-blow account of what happened at the bar exam with the Board’s software- how it froze during the saving stage of the essays and how a technician went to work hands-on but was unable to fix the problem and finally, as a last resort, instructed me to reboot the system (turn it off and on again) and then save to a USB thumb drive without looking at the essays.  One of the delegates blurted out, “You should have filed for an injunction!”  I later went into my legal case and so he was able to find out that is exactly what I did do. 

I then provided each member a chart of all the States that do allow access as well as a personal letter [see letter below] addressed to the committee and written by an applicant in another jurisdiction who experienced the same thing we did here in Virginia.  The difference was that he was able to obtain his essays by right.  When he got them, he discovered portions were missing, and indeed, one answer response was completely erased.  His answers were graded as if those were his complete answers.  Since 48 others who obtained their essays after his test had similar observations of erased material, this forced a corrective process in the state of New York not previously in existence.  Importantly, prior to the applicants obtaining their essays they were reassured by the Board that they need not be concerned and that their complete answers were received.  No so.

The delegates were additionally provided with a 20-page expert report submitted in support of my case.  Dr. Stephen Castell, a leading computer forensics expert who has testified in high dollar cases for companies such as Motorola, Citibank, and Harvard Securities PLC, on both the Plaintiff and Defense side, was able to form a conclusion that, given what happened at the test site (and still does in the most recent exams from what I am told by multiple sources), my concerns were well justified.  Further, he says there is no way for the Board to properly investigate without including the applicants, the actual writers of the essays, in the review.  As he says, “they [the Board] may have a very serious problem on their hands and not even know it.”  In other words, all of the tests of those affected remain unsolved mysteries. 

Just last year ExamSoft Worldwide, Inc., the sister software company to the one that Virginia uses (Extegrity) was sued in a class action by the applicants for software failures at a test site in another jurisdiction, resulting in a multi-million dollar settlement.  See http://lawschoolcafe.org/2015/05/20/examsoft-settlement.  Case No. 1:14-cv-22950.  Protecting the software company may be one reason for the lack of cooperation with Virginia bar applicants who are falling prey to system software malfunctions and who notice a significant scoring discrepancy in how they believed they performed on the test.  

Finally, I shared some research with the committee I conducted on the history of Va. Code Section 54.1-3929, which since 1919 has required the Board to preserve the essays for one year.  Sure enough, I discovered that prior to 1973 applicants in Virginia were, in fact, able to have access to their essays, which was the fundamental reasoning behind requiring the Board to preserve them for a year.  Sometime after 1978 the language pertaining to the right of access was removed, leaving an absurd result of the Board being still required to preserve the essays but the applicants left unable to access them, even in the most compelling circumstances.  This paradox lays the groundwork for the ongoing violation of Due Process in the Commonwealth of Virginia for anyone who has a legitimate dispute with the Board.  The very evidence that is needed, i.e. the essays, is being withheld in order to prevent a fair hearing.

I left them with this: even if the right to access the essays was for the sole purpose of allowing applicants to be able to prepare and improve the next time, is that not good enough reason alone to get rid of the blanket rule that no applicant can access their essays?  

 

The committee seemed a bit lackadaisical unfortunately and not as focused as one would like on the important issues at hand.  Chairman Habeeb seemed to actually be the only proactive one.  He first said, as the matter was being called forward, that this ultimately has to do with whether we trust the Virginia Board of Bar Examiners.  Some did take an interest when I explained the procedural history of my legal case and how venue was changed from the Fairfax Circuit Court to the Virginia Supreme Court due to the fact that the Board managed to have itself exempted from the Administrative Process Act (which reviews for agency wrongdoing).  And the Virginia Supreme Court has no original jurisdiction and dismisses all of these cases as a matter of course.  This is why, as I explained, the Board behaves this way towards people as opposed to other professional licensing boards, such as the Architects, which deal directly with public safety.  There is no doubt that if a candidate for an architect license experienced a software glitch in the computer-based test, and their board refused to cooperate with that applicant, a hearing could be heard in Fairfax Circuit Court.  Should it be any surprise then that the Board of Bar Examiners, as the only such organization shielded from judicial review, would treat people so poorly? 

 

The new Secretary of the Board, Catherine Hill, spoke against the bill.  She cited to a lot of statistics about the pass rates, etc. which really were beside the point for the most part.  She decided not to address any of the computer forensics evidence and simply argued for the status quo, which she argued was working just fine.  When asked by Chairman Habeeb if she has looked into this problem, she said yes and said vaguely that there was no problem found.  There should have been a follow-up question as to how did you look into it and what technical expertise was brought to bear in any supposed review of the situation.  Instead, in response to the actual follow-up question of whether there have been any statistical anomalies over the years, she simply said no. 

Besides these softball questions, there unfortunately wasn’t much in the way of critical analysis.  Any semblance of rigorous debate to get at the truth of this was wholly lacking.  Either the committee was ill equipped to handle a matter of this complexity or there was a simple deference to a government agency (many of them are licensed by the Board). 

Whatever the case may be, the committee tabled the issue from any further consideration this year.  At the end, Chairman Habeeb told the Board (which showed up as a team) they “really do not want us legislating this so make sure that people are happy.”  Folks in the audience could be heard in agreement with that statement.

 

Judging by one of his comments, Delegate Habeeb revealed some of his rationale by saying that we do not want to make bad law based on a badly mishandled case.  While that may be true in certain instances, that is certainly not the case here for two reasons.  First, I was by far not the only one affected by the system software failure; and second, these problems are persisting up to the most recent exams I am told by some who follow this blog.  The truth of the matter is that badly mishandled cases will continue unless a good law is made now.  It has worked just fine to require transparency in almost all of the other States. 

 

But, as we joked at the hearing, we all know that Virginia is usually the last to change.  Here was Virginia’s opportunity to do something right for the People, but passed up the opportunity.      

 

 

LETTER FROM ERIC ZENI, ESQ TO VIRGINIA GENERAL ASSEMBLY

January 30, 2016

Courts Committee
General Assembly Building
201 N. 9^th Street
Richmond, VA  23219

 

Re:  Virginia House Bill 550

 

Dear Members of the Courts Committee:

 

I would like to submit this statement in support of House Bill 550, which would allow bar exam applicants access to their essays.  I am an attorney admitted to practice in New York State.  I sat for the July 2007 administration of the New York Bar Exam, which I registered to take using a computer.  I believe that my experience with the New York Bar Exam shows why it is important to make the applicant’s answers available to them.

 

When I sat for the bar exam, there were wide-spread problems with the exam software that was used.  In my testing location, a great many people were affected by the software glitches.  Later we learned that these problems occurred state-wide.

 

The exam software froze twice while I was taking the exam.  As I was typing my first essay, the software froze and a technician came to assist.  The technician restarted my laptop, which I did not think was a good idea, but eventually got the software running again.  I then completed the first essay and moved on.  As I was half way through the second essay, the software crashed again.  A technician came and advised me that he could take my laptop to a table in the back of the exam room and work on it.  I glanced back to see a table in the rear corner of the room with computer technicians, equipment, and anxious test-takers- a veritable computer triage area.

 

At that point, I told the technician to give me an answer booklet.  I completed the remainder of the second essay and finished the exam on paper, the old-fashioned way.  At the end of the day, we were instructed to transfer our files on a thumb drive and upload them.  At the conclusion of the test, I spoke with the technicians and the head proctor who advised me that the software had a “backup system” and that no data would be lost.  I believe that I even received an email confirmation from the software company that they had received my test responses.

 

Ultimately, when the exam results were released, I was told I failed by four points.  At that time, in New York, test-takers who failed were allowed to request copies of their answers.  After I received the copies of my essays, I discovered that my response to the first essay written on the computer was incomplete and that the first half of my response to the second essay (which I had typed on my computer) was completely missing.

 

Although New York does not allow appeals of the test results, I contacted the Board of Law Examiners and explained that significant portions of my responses were missing and explained the software malfunctions that had occurred.  Several weeks later, the Board of Law Examiners informed me that they had done some sort of “review” and were able to locate the missing portions of my essays.  My essays were re-graded and I was informed that I did, in fact, pass the bar exam.

 

It is important to note that if New York did not allow an applicant who failed to request and review their essays, I would never have discovered (or been able to prove) that the graders did not have my complete answers and that the software malfunction had resulted in the loss of significant portions of my essay responses.  The ability to review my answers was truly life-changing for me- it meant that I did not have to sit for the bar exam again and I was able to be sworn in on admission day with my peers and begin my career.

 

This is why I write in support of H.B. 550, which I believe will protect the interests of the applicants.  I believe that it is only fair that applicants have access to their responses, especially if they need to prepare to retake the examination.

 

If I can be of assistance to your committee, please feel free to contact me if you have any questions.

 

Sincerely,

S/

Eric Anthony Zeni