So not Ho, Ho, Ho for bar examiners

I have a recurring nightmare. There are one of two forms: either the California bar examiners tell me they made a mistake 44 years ago and I failed, or worse, attorneys who have been practicing for more than X years will have to take another bar exam to get not only to see if they still have knowledge, but also if we old people could still give competent legal advice. I never thought I’d be writing about the bar exam 44 years after passing, but here I am. And like many other times, the story weighs on credibility, but the story seems to have no end.

How many times have you been accused of something and then it is your job to refute it instead of the prosecutor having to produce evidence? And no, I’m not talking about all the guy fuffle since the elections. I leave that to others. Not my job. As the courts asked, where is the evidence? And that question applies here.

I’m talking about the latest flap on the California bar exam. I never get tired of writing about it because the hits keep coming.

The newest? The bar accuses about a third (over 3,000) of online bar checkers in July, oops, October of fraud. Say what? The bar has sent out Chapter 6 notices indicating that they have been cheated. What are the bases for these claims? It’s all in the videos, say the bar examiners.

What are the allegations that bar examiners call evidence of fraud? How about the following: The examinees’ eyes are temporarily out of sight of the webcams, the audio does not work and the examinees are not present behind their computers during the exam? What if a candidate 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 elbows so my eyes aren’t seen.

If the audio doesn’t work, whose problem is it? I would think the bar would have made everything work. What about claiming not to be behind their computers during the exam? What if you had to leave the screen to go to the bathroom and it couldn’t wait?

The examinees whose video files have been flagged for suspected of fraud and not cheating in the traditional sense, apparently not the recent West Point scandal (same answer to 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, then why is there any reason to believe that it didn’t during the actual test? As a candidate, how do you explain that there was no cheating? Several defense lawyers say the communications their clients received were unsigned and undated. The messages give the examinees 10 days to respond. Ten days from when? And how should I react? Do I say the word “Snafu”?

What if the law office determines there has been a violation? That candidate can then receive his first exam of the maze of law and seek an administrative hearing, then an appeal to the bar examiners, and finally to the Supreme Court. How long will it all take? How much in fees – most examinees are already financially affected – have to be paid to solve the problem? What if the process releases the device under test? Provision for legal fees? What do you think?

The real problem is that these examinees’ bar scores are not being met, so these examinees will not be able to take the February bar, even remotely. This is so wrong

Those poor examinees have had to put up with so much tsjuris (Yiddish for grief and anger) this year, and there is no need to refresh anyone’s memory of exactly how much there was.

Postponing bar exam results until January is bad enough. Now the bar wants to further punish the auditors by not ditching them for the February bar while the previous bar scores are pending determination. Hence, examinees may now have to wait until the summer bar whenever possible in order to take the exam a full year later than expected. Tell your student lenders this, tell your family and creditors, not to mention any companies that may have open jobs. And while you wait to see if you cheated and if you can sit for the February bar, read John Grisham’s The Rooster Bar. It’s a story that isn’t spoken often enough about legal debt.

We’ve had stories this year about ExamSoft software failing to recognize people with color. Maybe that could be a cause of the alleged “cheating”? Racially Discriminatory Surveillance?

This is shadowboxing. At least in legal disputes, you know more or less who the opponent is and what claims exist. Candidates who have received notices hire lawyers to represent them in this mess, and I just don’t think all of them cheated over 3,000 examinees. Those examinees, most of whom are waiting for cash results to find a job and eventually find jobs – not that there are any currently – stuck in student debt with payments already due, now have to pay money to the attorney to prove negative . Ridiculous.

What a merry christmas Santa Claus just dumped shit, not a piece of coal, for a third of California’s October bar test participants. So not ho ho ho

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers working as a lawyer in a friendlier time. She had a varied legal career, including as a deputy public prosecutor, as a solo practice and as leading in-house gigs. She now teaches all day what gives her the opportunity to see dinosaurs, millennials, and the people in between – it’s not always bourgeois. You can reach them by email at oldladylawyer@gmail.com.

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