Harvard Law grad sues bar examiners for failure to accommodate

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21

@Hanna: She doesn’t need to stay to get a career launch, but since the standard for damages is “reasonable certainty” she does need to stay to prove anything. With lockstep salaries and a good model she can probably show she would have been there X years but for the bar. How’s she going to prove any further damages?

Also, I haven’t read any papers in the matter, but is the bar not claiming time is an important factor? I generally think the bar is a useless waste of everyone’s time, but I agree the only remote benefit is a test of thinking under pressure.

22

Related to Demosthenes’s comments - does anyone know really what the bar exam is supposed to test, besides short-term memory of some legal rules? My H is a lawyer and took the NY bar many years ago, and although he passed on the first try, he still is somewhat bitter about the test – the huge consequences of failing (like the HLS student, he was working at a NY firm that allowed only two tries), and at least what he claims are test conditions that do not mimic any real-life situation that a lawyer is likely to face, such as not having access to any materials. He is a tax lawyer, so most of what he does is sit at a desk and research and write, but he says that even litigators have access to materials during trials and depositions. His view is that the bar exam is a kind of hazing of new lawyers by older lawyers, justified by a “we did this so you have to too” mentality.

23

I don’t agree that she couldn’t take her time to finish assignments at the law firm. She may be working many many hours to get the project done by a due date, but I know a lot of s-l-o-w lawyers, and they just plug along. I do think she might have issues will ‘being called on’ in a meeting and actually having to talk to clients and supervising attorneys without advanced notice that they might ask her a question.

She could work for the government and take all the time she wants to finish anything. However, the other accommodations of a quiet office, yoga mat, many breaks might not be met. My last government ‘office’ was a very noisy, non-luxurious cube. I could bring my own light and clock.

24

If she is working at a law firm and is slow, how could the firm be justified in charging the high hourly fees if it takes her twice as long as other lawyers to do the same work?

25

Well, now that this is a both public and publicized, maybe.

I really don’t know what the Multistate portion of the bar is supposed to test. Let me describe if you haven’t taken it. It’s hundreds of multiple choice questions, they give you four possible answers to each question. You’ve studied the whole summer. You read each question and know the answer. You could write an essay on the correct answer. You look for the answer. It’s not there. You can throw out two of the 4 answers, then you are stuck choosing the closest one (think double negatives and liberal use of “always” or “sometimes.”) If you don’t suffer from serious anxiety, you choose one of the two…you leave thinking you could have received a 100% or 0% that day…because the correct answers were not there. You rely on your knowledge of your law school’s typical pass rate to keep yourself off the ledge.

26

Those of us in private practice are being told that the billable hour is dead. Lots of clients are demanding work on a flat fee basis.

I know so many attorneys with so many different strengths and weaknesses. There are so many types of jobs. There are so many niches. I don’t think it’s possible to say that this young woman will not make it in the practice of law.

27

Lots of people retake the bar exam and finally pass it on a subsequent try without being granted an accommodation.

So how can she prove CONCLUSIVELY that it was the accommodation which facilitated her passing, rather than just repetition & increased familiarity with the material?

28

Looks like her linked in page is pretty comprehensive.

29

Just to play devil’s advocate because I am not a lawyer (just married to one). From what I understand, the bar exam tests basic law school subjects. My H is a tax attorney. Tax is not (or was not) on the NY bar. Of course he needs to know the basic things that all lawyers need to know, but he can look those up. His real value is that he is really good at tax law. So even if he had needed more time (or whatever) to pass the bar, his skill at tax law would have made him worth whatever the firm was charging for his time.

I guess what I am trying to say is that this student might be very good at things that are not tested on the bar, so just because she needs additional time to pass the bar, she might very well not need additional time to do real lawyer work.

30

I always say that these are three separate, almost unrelated, things:

  1. Law School
  2. The Bar Exam
  3. The Practice of Law

Nos 1 & 2 are legal prerequisites to #3, but success at #3 is not dependent on success in #1 and/or 2. (Back in the day one could become a lawyer by interning for a lawyer and/or self-study. See, e.g., Abraham Lincoln)

Other than the basic bare bones of property, corporate and contract law, virtually nothing I do in my practice was taught in law school or tested on the bar exam.

But, if you really want to try to wrap your mind around something wild, read about Haben Girma, the first deaf/blind Harvard law grad. I. Just. Don’t. Know. How. She. Does. It. https://habengirma.com/

31

“is the bar not claiming time is an important factor?”

There’s no response yet, but if you grant extra time as an accommodation, how can you claim to be testing time management? Giving extra time on a test of timing would be like giving one student different questions from the rest.

“She may be working many many hours to get the project done by a due date”

That’s not OK at a big firm. Some other kind of legal employer, maybe. But the whole principle behind being a biglaw associate is that you should be billing a high percentage of the hours you work. There isn’t any such thing as “enough.” When you finish one assignment, you’re supposed to look for another. If you’re working 80 hours to bill 40, you fail. (In fact, at least at my firm, the partners you’re working for will be punished for your inefficiency. You’d have to lie about how many unbillable hours you worked.)

32

<<<

The more interesting problem, as I see it, is whether the bar should be making a different argument on future ADA questions: that the exam is not merely a test of legal knowledge, but a test of time management and stress management. (IMHO, this is the only real value of the exam – it doesn’t measure the hard knowledge or skills lawyers need very well.) If you’re testing people on time management, then extra time may not be a reasonable accommodation absent a disability that necessitates an oral test.

Professional licensure exams often take into account candidate qualities besides subject mastery. For example, state bars require a character & fitness evaluation. Tests of multitasking, concentration, etc. strike me as equally defensible and probably wise.

“Unless she’s going into drafting wills and trusts or something similar”

If you have clients and a boss, then you have deadlines and pressure. Some fields are worse than others, but they’re all pretty bad.
<<<

Sort of off-topic, but sort of related…
I know a student who received accommodations (extra time) for exams for the SAT and ACT, school exams, and the LSAT, due to test anxiety/anxiety. He ended up with very high scores, all resulting in very large scholarships for undergrad and at all law schools that accepted him (and he got into some top LSs.) In the past couple of years, he’s gotten his pet dog approved to be a ESA, so that he could bring it on planes, occasionally to class, in hotels, etc. Some of this is nonsense because he’s had a part-time job and summer job as a server at a very busy restaurant, and (of course) doesn’t bring his dog with his during those times (I doubt the employer has ever been told ).

So…how will all this work when he’s a practicing atty? Will clients have to pay him more because he needs “more time” (more billable hours as mentioned upthread"? Will judges have to give him more time to prepare/review/whatever…for instance …2 days instead of standard 1 day…or 2 weeks instead of standard 1 week…or 6 months instead of standard 3 months? (I’m just making up standard times to make the point.).

Will the guideline be that whatever time allotment is given to the side with attys without accommodations be then doubled (or some formula) to the side where at least one atty has accommodations?

If so, how crazy will that be manipulated? Will each side make sure that they have a token person with accommodations on their side?

Personally, I don’t believe it’s that hard to convince a number of mental health professionals that you get “too nervous” “too anxious” “nauseous” “sweating/dizzy” or whatever during stressful times in order to “qualify” for accommodations.

All of this seems very slippery slope to me.

33

Re post# 27, i did not post the quoted material. :slight_smile:

I find myself with less and less sympathy for people who demand accommodations for this sort of thing. At some point, you just have to be able to do the job. If you cannot do the job because of some personal limitations, find a job you can do. That’s what millions of other people do.

34

sorry- it was posted by @lookingforward , not you. But its ok to take the credit :slight_smile: This attorney looks like she was only between jobs for a few months, and has been at Cantor Fitzgerald for over a year.

35

If she has found a professional job that she can do, I think that she is being extremely unwise to make a public thing of this.

36

But I do wonder what her role at CF is, whether she’s functioning and being paid as an attorney or more of a project manager. And jym, isn’t is possible that, on meds, she is functional, maybe highly so, but the particular pressures of the bar exam presented a unique hurdle? I’m wondering.

37

I don’t know, but it sounds as if she has suffered brain damage and loss of cognitive ability Depression can be treated with medication, as can difficulty concentrating due to ADD. But an inability to address complex abstract problems? I’m sorry, but I’m sure that the same could be said of many people who just are not very bright, no matter what other wonderful qualities or abilities they may have.

38

I wonder do they give accommodations to medical students/ residents etc. for these types of disabilities? Wouldn’t want an ER doctor treating me who needed a lot of extra time to diagnose and treat me.

39

When I read the article I wondered how she even made it to or through a top tier law school. But it sounds like she was injured in an accident (?). Perhaps there was some anticipation of improvement in her condition over time?

I’ve taken the bar exam in two different states (passed both - phew), and time was certainly a critical element of both tests.

Agree with a post up-thread that suggests law school, bar exams, and the actual practice of law are 3 different things. On the other hand I would think that certain disabilities would not be compatible with the practice of law in certain contexts. It is going to be dependent on the situation.

40

It seems to me that the complaint (if any) is against the employer for its policies about bar passage, not the bar examiners-- especially as she was granted accommodations for the first two exams-- just not everything she wanted.

There are plenty of law graduates working as law clerks or paralegals whose employers will keep them on through multiple attempts at bar passage. Probably not big firms – but the bar examiners can’t be responsible for the employer’s policies.

And I think that the employer’s policies are legal as well – the real issue is that she got a job that offered a benefit to which she was not yet entitled. That is, she was hired to be a lawyer on the staff of a law firm prior to the time that she was actually legally qualified to practice law. That’s standard practice for law grads… but that doesn’t make it an entitlement.

I also do think that it’s a problem that she failed to disclose whatever disabilities she claimed to the law firm which hired her. I have known some excellent attorneys with very severe disabilities; for example, I worked for a time with a well-established lawyer who was totally blind from birth, and relied on a reader to get through law school as well as for the bar exam. But his disability was obvious to all.