By Aebra Coe

Law360 (October 7, 2020, 10:04 PM EDT) -- After approximately 30,000 bar exam participants across the U.S. took to their computers this week to take part in 20 jurisdictions' virtual bar exams, a format precipitated by the coronavirus pandemic, social media began to light up with complaints and concerns.

According to a spokeswoman for ExamSoft, the company that administered the exams, 98% of candidates who downloaded the exams were able to successfully start the tests Monday, with the majority of those who did not log in being "no shows" or test-takers who were excluded by bar officials.

The remainder of that 2% involved technical issues that required additional action to remedy, the spokeswoman, Nici Sandberg, said. The company said it closed more than 1,500 support cases Monday, most of which involved teaching test-takers how to use the software versus fixing technical issues, and had seen "fewer cases" as of Tuesday afternoon.

"The vast majority of candidates were able to start their exams and did not experience prohibitive technical issues," Sandberg told Law360 on Tuesday evening.

While the majority of test-takers were able to use the software without issue or troubleshoot in order to make it work, participants posted a barrage of complaints on Twitter and Facebook during the two-day period of the exams. They decried technical issues, a lack of support from ExamSoft and state bar officials when problems arose, long wait times for support, and other issues related to the online format.

ExamSoft is also set to administer Florida's online bar exam early next week. One test-taker, Ravin Sahadeo, said he and others have reached out to the state's board of bar examiners seeking adjustments to that plan following the complaints regarding ExamSoft that were brought up by test-takers in other states. He said that as of Wednesday, the board had communicated that it planned to continue on course.

The board didn't immediately return a request for comment Wednesday.

Patrick Marshall, a test-taker this week in Massachusetts, said he encountered an issue where a portion of his uploaded responses appeared on the ExamSoft app but not on its website. Marshall said he was unsure whether his test had uploaded correctly and called the number provided to him for technical support, but was unable to get through to anyone as the deadline to upload approached.

Finally, he said, he tweeted his concerns and tagged a state senator in New York, and was able to get an answer within 10 minutes.

Diana Jarek, who sat for Washington, D.C.'s online bar exam, said that while she didn't have any issues during the exam, she did encounter a potential issue before the test began and sat on hold for 81 minutes before she was able to speak to a person about her problem.

"We all knew that the only method for troubleshooting day-of issues was to crowdsource on Twitter," Jarek said. "It shouldn't have to be said that for the biggest exam of our lives that we've spent hundreds of dollars to take, ExamSoft should at least be functionally prepared to help troubleshoot issues caused by their exam."

One exam-taker said she logged in for one portion of the Tennessee bar exam at the allotted time but encountered a technical issue that required her to call ExamSoft for support. The person spoke to Law360 on the condition of anonymity, saying she feared retribution from her state's board of bar examiners for speaking out.

The test-taker said that when she connected, she was the 88th person in line to speak to a support specialist. After more than an hour and a half, her problem was resolved, but the board of bar examiners told her she would not be given additional time and would have just 4 minutes to complete that portion of the test, she said.

"I know I am capable. I know I can pass. I know I will be a good lawyer," she said. "And in a few simple words, it was all taken away from me."

Others' complaints had nothing to do with technical difficulties but instead with the requirement that test-takers stay in front of their computers, looking at their screens for up to 90 minutes without breaks. Some simply found it uncomfortable, while others said they have medical conditions that make sitting in place that long untenable.

The Consortium for Citizens with Disabilities and the Lawyers' Committee for Civil Rights Under Law sent a letter to the Conference of Chief Justices on Tuesday expressing concern that online bar examinations could have a disproportionate adverse impact on people with disabilities and people of color due to inaccessible software or automated proctoring systems that present risks of inappropriately flagging test-takers for potential cheating.

The groups urged the conference to endorse the widespread adoption of temporary diploma privilege for those applying for admission to the bar during the pandemic, which would allow them to practice law without passing a bar exam.

Additionally, test-takers with disabilities have brought a lawsuit against the State Bar of California over its requirement that people in need of certain accommodations take the exam in person this year and its refusal to provide the same accommodations for the remote exam.

One plaintiff suffers from irritable bowel syndrome and would need to take bathroom breaks. Another says she could not sit uninterrupted in front of a computer for the entirety of each test section because of a cerebrospinal fluid leak. And a third says he would require a paper copy of the exam due to his attention deficit hyperactivity disorder.

In that case, a federal magistrate judge declined on Sept. 30 to grant a preliminary injunction forcing the state bar to provide certain disability accommodations in test-takers' homes, concluding that test-takers must either abide by the state bar's remote testing restrictions or travel to receive accommodations at an official test site.

Other groups expressed concern with the online format leading up to the exam.

Multiple California branches of the American Civil Liberties Union signed on to a letter raising concerns about the collection of biometric data. And several California law school deans urged the state bar to do away with ExamSoft's video and artificial-intelligence monitoring and make the test open-book.

In a statement provided to Law360 on Wednesday, the National Conference of Bar Examiners said that while data was still coming in from day two of the two-day tests, the results so far were "very encouraging."

"I am proud of the commitment from the jurisdictions NCBE serves to quickly respond to the historic challenges brought on by the COVID-19 global pandemic and to provide applicants the opportunity to take the bar exam under safe conditions," NCBE CEO Judith Gundersen said. "Overall, the remote exam was a success."

California Bar interim executive director Donna Hershkowitz said in a statement Tuesday that her organization expects to have a complete evaluation of the exam process at a later date.

"Our experience on the remote exam during the first day was broadly consistent with the national data that indicates the overwhelming majority of test-takers entered the examination successfully. Our staff is working hard to ensure as smooth a process as possible for test-takers," Hershkowitz said.

--Additional reporting by Hannah Albarazi and Emma Cueto. Editing by Aaron Pelc and Michael Watanabe.

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