The day after Michael Jackson died I speculated about a very rare prosecution; that of a doctor for the death of a patient. I later explored two other risks that Dr. Conrad Murray faced, one for malpractice and one for his license (see: Michael Jackson: Malpractice or Manslaughter (Or Something Else?). Now Dr. Murray has been charged with involuntary manslaughter, clearly the most significant of the three risks.

With the concept of such rare criminal prosecutions firmly in mind, we re-visit the death of a patient 17 years ago at the hands of a New York doctor in this guest blog by Eric Rothstein. He was a young prosecutor in the office of the Queens District Attorney that charged Dr. David Benjamin with second degree murder.
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By Eric Rothstein

The news that the Los Angeles County District Attorney has charged Conrad Murray with Involuntary Manslaughter in connection with Michael Jackson's death has people debating whether his actions warrant a criminal prosecution, in addition to a potential wrongful death suit by Jackson's estate and possible revocation of his medical license. The decision to criminally charge Dr. Murray is rare, but not unprecedented.

In 1993, a grand jury in Queens County, New York, charged Dr. David Benjamin with Murder in the Second Degree after his 33 year old patient, Guadalupe Negron, died due to complications from a botched and illegal abortion that he performed in his storefront medical office. Dr. Benjamin was thought to be the first doctor charged with murder in New York State due to a patient's death during a medical procedure. At the time of Mrs. Negron's death, Dr. Benjamin's license to practice medicine was in the process of being revoked for "gross incompetence and negligence" in five previous cases in which the women he treated suffered life-threatening perforations to their uteruses -- the same injury that led to Mrs. Negron's death.

Mrs. Negron learned of Dr. Benjamin's clinic from a newspaper advertisement in a Spanish-language newspaper. She paid Dr. Benjamin $800 for the abortion because she needed to go to work to help support her four children, three of them living in Honduras.

The evidence at trial showed that Dr. Benjamin performed a second-trimester abortion; Mrs. Benjamin was likely between nineteen and twenty weeks pregnant at the time. The abortion procedure lasted between one hour and fifteen minutes and two hours. Because there are greater risks involved in performing an abortion on a woman who is between nineteen and twenty weeks pregnant than in one in the first trimester, heightened safety measures were required. However, Dr. Benjamin did not adjust his procedure to account for the increased risk. During the procedure, Dr. Benjamin caused a three-inch laceration, extending from Mrs. Negron's vagina through her cervix, which perforated her uterus. The perforation of the uterus caused massive bleeding.

Following the abortion, Dr. Benjamin had Mrs. Negron wheeled into the recovery room while he performed another abortion even though she complained of feeling ill. Following such an abortion procedure, appropriate medical practice requires that the patient be monitored by trained medical personnel every five minutes for at least an hour. Dr. Benjamin ignored Mrs. Negron for at least one hour and there were no other trained medical personnel, no equipment to monitor her vital signs and no established emergency procedures.

After approximately one hour and ten minutes, Dr. Benjamin reexamined Mrs. Negron, who was cold. Dr. Benjamin's receptionist called 911. In a panicked attempt to revive the victim, Dr. Benjamin inserted an air tube into her esophagus, rather than her trachea. When the paramedics arrived, Dr. Benjamin falsely informed them that the abortion was performed without complications. When Mrs. Negron was lifted off the examining table to be transported to the hospital, about a liter of her blood remained on the table. In the end, Dr. Benjamin compounded his botched abortion by misleading paramedics about what happened.

After being convicted by a jury, the Judge sentenced Dr. Benjamin to 25 years to life in jail. Having exhausted his appellate rights, he remains incarcerated in a New York State penitentiary.

As part of the District Attorney's investigation, the Office executed a search warrant at Dr. Benjamin's office. I was a young Assistant District Attorney at the time and was present when the warrant was served. While I do not remember everything, I do recall the blood stained couch where Mrs. Negron rested following the procedure and seeing what appeared to be dirty instruments strewn about in various places in Dr. Benjamin's facility. I definitely remember feeling sorry for the people who had no other options but to turn to this storefront abortion clinic.

Though rare, prosecution of physicians is sometime appropriate. Dr. Benjamin's actions showed depraved indifference to human life and thus warranted the murder charge. It is probably safe to say that we have yet to learn all the facts in Dr. Murray's case. However, Dr. Murray allegedly gave Mr. Jackson propofol, a powerful sedative that is not supposed to be used outside of a hospital setting and needs careful monitoring, which a coroner determined caused Jackson's death with other drugs as contributing factors. Legally, Dr. Murray's alleged degree of culpability appears much less than Dr. Benjamin's. Hence, the lesser charge. Nevertheless, if Dr. Murray prescribed Mr. Jackson a powerful sedative that is not supposed to be used outside of a hospital and then failed to adequately monitor his condition, the prosecution appears warranted. If convicted, Dr. Murray faces a possible maximum four-year state prison term.

Labels: Guest Blog, Michael Jackson

Today I have a guest blogger that shows you how to save thousands of dollars a year. Those savings take place if you made the mistake of hiring FindLaw as your law firm's marketing company (or are contemplating doing so).

The company hit my radar big time, of course, when FindLaw decided it would be fun to rip-off my blog name. A deeper look discussed how FindLaw's "Blogs" were tainting not only its clients, but its professor-commentators and the profession of law as a whole.

Today's guest is a former sales rep that left on less than amicable terms because he couldn't make an absurd sales quota selling a product that was so heavily over-priced. Today he has his own company. The financial analysis of FindLaw's offerings now follows:
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By James Eichehberger
(co-owner of Swell Sites, a small, Minnesota web design company)

There's been a lot of chatter, mostly disgust, around the ethics and quality of FindLaw's blogs as well as what I'll considerately call a lack of creativity in naming them. I'm sure that this, like the linking scandal of 2008*, will evoke a variety of reactions from people involved in the legal marketing community. The great majority of lawyers will read these posts and feel self-assured in the fact that they don't do business with FindLaw.

However, I'm afraid that current FindLaw customers will have one of two reactions. Some will look at it as an issue that is isolated to the blogosphere, and therefore doesn't effect them and their products with FindLaw. The second group will realize that, whether or not they have their names posted on these blogs, this is yet another incarnation of FindLaw's questionable ethics, and it's time to move.

So the question for current FindLaw customers (the group that is willing to acknowledge that their reputations are at stake) becomes how do you transition out of your current site and retain some of what you've already paid for? To that end, I've put together a group of questions that can jump-start the idea that you can indeed rescue your website from being held hostage and save thousands of dollars a year.

1. What am I really getting from the FindLaw Directory?

In reviewing traffic reports with your sales rep or account manager, it's common to see the traffic delivered by FindLaw rolled into one big number. To be clear, there are two distinct elements that bring traffic to your website from FindLaw. First, your FindLaw profile, (which will typically include "pview" in the URL on your traffic report) and then any directory placements, which can run from $30 to upwards of $1,000 per month. [Ed. note, FindLaw links coded as "nofollow" to avoid giving link juice.]

It's important to understand the average price per click that you are paying for traffic from FindLaw's top listings. In many cases, those coveted clicks from FindLaw cost well beyond $100 each. Tracking how many of these clicks actually convert to contacts by following the pages they access on your site is a very easy task with many common (and free) traffic programs. It's troubling that FindLaw's traffic reporting is unable to follow these users and show conversion for this extremely expensive traffic.

2. Why am I paying monthly for my website?

There are really two answers to this question, depending on where you are in the life of your website with FindLaw. FindLaw websites are billed monthly, so the idea is that they take the cost of a website and prorate it over 12 monthly payments. So if you are in the first 12 months of your contract, it can be argued that you are still paying for the creation of your website.

Outside of those 12 months is where the math gets blurry. The monthly rates don't change (significantly, anyway) based on the length of the contract, and what you get in terms of content or SEO doesn't really either. Unless you are engaged with your website to the point of calling to ask what you are eligible for on a quarterly basis, your website just gets more and more expensive the longer you keep it with FindLaw. A former FindLaw General Manager said on his way out (before having moved back over to West) that the best way to get real value from a FindLaw website is to buy one and then cancel it as soon as possible.

3. What do you get beyond the initial development of your site?

That's a question that FindLaw was trying to answer the entire 5 years that I worked there, and to my knowledge, they still haven't figured it out. If anyone reading this can tell me of an experience where they received real value outside of the initial development of a new project I'd be interested in hearing about it. My guess is that most FindLaw customers will struggle to recall ever being proactively helped with their sites. They will tell you about "refreshes" which are additional content opportunities, but they are not easy to set up or completely clear on who is eligible.

The service is supposed to include additional search engine optimization (SEO) work, but at the time I left, they could also just have someone from the SEO team "audit" the site, and then determine whether or not they wanted to work on it. Same thing with content; unless you ask about the schedule, and then give specific direction on what content you'd like written, you likely will not get any. I'd liken the whole situation to trying to write step by step instructions on how to tie a shoe. Tying a shoe is easy, but when you try to tell someone else how to do it, it becomes infinitely more difficult than if you had done it yourself.

4. What elements of my FindLaw website do I actually own?

Here's where there is actually some good news for FindLaw clients. There are three basic elements to your site:

Domain Name
This is the the name that brings up your site. Regardless of whether you owned that domain name before you purchased your site, it IS yours. At any time, for any reason, you can request that the ownership of your domain name be transferred to an account under your name. That gives you the ability to keep a site up and running should you decide to move away from FindLaw in the future. It also protects you from them holding on to it should you get into any type of a dispute over your contract term, cancellation date or total amount owed to the company. Your domain name is the online version of the front door to your law firm...your law firm should be the sole owner and controller of that domain name.

Content
The content on your site that was "custom written" is yours to keep. Because you directed the writing of this content, and it was written about your firm, it is yours. The content includes the meta data which is a large part of their search engine placement strategy. Transferring your content, as well as the 3 or 4 lines of coding aimed at search engine placement, onto a new server space will typically yield the same, if not better, results on Google.

Not ALL of the content belongs to you. If you have any FAQs, eNewsletters, Practice pages or practice centers, those are actually leased from FindLaw. Re-publishing that content on to a new hosting space is a violation of the contract and licensing of the content.

Design
The design is owned by FindLaw, but can be purchased for a fee defined as 4% of the annual value of the website. So if you were paying $12,000 a year for your site, buying the design and all images used would typically cost about $500. For that cost, you get a disc or a link to download all of the HTML files and graphics that made up your site. What you get isn't going to be easily rebuilt by a novice, but someone with a general knowledge of websites could reconstruct it in 2 to 6 hours, depending on the complexity of the design and number of pages.

5. How much should I expect to pay for a website from FindLaw?

There are hundreds of variations, but a template, 8 page site tends to run about $500 a month on a 12 month contract. So at a minimum, the site is about $6,000.* The second year monthly fees typically drop to about $350, so a 24 month stint with FindLaw with an 8 page website will cost right around $10,000.

This price increasing over time with the relatively low service level in the second year and beyond, is really where the opportunity to save some real money comes in to play. If you already have a FindLaw website, there are several ways to get it set up on your own hosting space. Attorneys who are very web savvy may be able to handle the migration themselves. If you are not very comfortable with web development it may be far more efficient to hire someone to do it for you.

6. How much does it cost to get my FindLaw site rebuilt on another platform?

There is no perfect answer for this, but you should expect to pay somewhere in the range between $1,000 and $4,000 depending on the size and complexity of your website. Whether you are setting up a new website or working to get your FindLaw site migrated, here are a few things you're going to want to make sure have been taken care of (in no particular order):

a. XML Sitemap Submission
b. Traffic Reporting that shows where people are coming from (a counter is not enough)
c. Domain validation through Google (available in their Webmaster Tools)
d. Meta Data on each page of your site that you would like included on Google
e. Keyword rich content that reflects the approach and feel, not just the practice area, of your law firm.

I hope this information is helpful to people who are looking to gain a better understanding of exactly what they purchased from FindLaw, or looking to start up or advance their web marketing. I hope none of this came across as "axe-grinding" but at the same time, the reason that FindLaw can continue to get away with these other questionable projects is because there are thousands of lawyers who are paying thousands of dollars for what's basically a trumped up web hosting plan.
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*Ed. notes:

1. For more info on the prior scandal with FindLaw selling links, see FindLaw gaming Google, and possibly scamming lawyer customers? Also see: Is the FindLaw Story Getting Distorted? where former FindLaw reps out the company's disreputable policies in the comments.

2. This blog and my firm's website were built by a small provider for a fraction of the cost of FindLaw's services. The idea that lawyers would pay such ridiculously high rates to build a website, and then pay hundreds of dollars more per month to host it, is bizarre.

All the content on my two sites (for better or worse) comes off my keyboard.

Labels: FindLaw, Guest Blog, Marketing

Last week Virginia posted the results of its July 2009 bar exam. But are the results accurate? It seems that New York is not the only state that can foul up a test (as I know from my own experience as well as others), Virginia apparently fouled up the July 2008 exam.

The problem is simple:

1. There was a software glitch during the test regarding the essays that were typed on laptops; and
2. Virginia doesn't permit test-takers to see their essays.

What follows is an affidavit from Jon Bolls, who is chronicling his fight through the courts to see his essay answers after he and others were victims of a software problem. The affidavit below describes the problem. (And if you think bar examiners can't be beat, read this.)

According to Bolls, 43 states allow for some form of transparency. Virginia is not one of them. And over half now allow typing essays on laptops.

And the question for bar takers in the face of multiple technology problems comes down to this: Is pen and paper better than the keyboard? Proceed at your own risk...

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I, Jonathan Bolls, "Declarant," am a resident of Springfield, County of Fairfax, Commonwealth of Virginia, and do hereby certify, swear, affirm, and declare, that I am competent to give the following declaration based upon my personal knowledge, unless otherwise stated, and that the following facts and things are true and correct to the best of my knowledge:

1. On July 29, 2008 I took the Virginia Bar Exam essay section on laptop.

2. During the afternoon session of the Essay/Short Answer portion, an announcement was made by microphone that there were approximately 24 students who had answers that were misplaced in the system from the morning session. These students did not know who they were and would find out how to correct the problem through special instructions enclosed in their afternoon test booklets. I am not one of the 24.

3. During the saving stage of both the morning and afternoon sessions, my Exam4 software, administered by Extegrity, halted and displayed a dialogue box wherein the program refused to proceed despite my following the instructions exactly. On each separate occasion, I had to call a technician over who handled my computer to circumnavigate the dialogue box. On at least one of these occurrences, I was instructed to reboot my computer and resubmit the essays. After both occurrences I was instructed to transfer the data from the laptop to the USB drive and hand it in.

4. Both of these instances were very similar but were handled by two different technicians. Neither of these technicians said that I had done anything wrong or offered any explanation as to what happened.

5. Both instances took place about midway through the crucial saving stage of the exam, an approximately ten-step process that was delivered orally by microphone. These approximately ten steps pertained entirely to saving the data to the personal laptop. The last remaining two or three steps were very straightforward and consisted of inserting the USB drive into the laptop and clicking on the icon that says "Save to USB Drive."

6. While applicants had many opportunities to take practice exams on their own time prior to the exam, the saving stage consisted only of a simple step of clicking on the icon that said save. The approximately ten steps given orally at the exam were entirely new to every applicant and were read as if they were written down for the proctor. On the other hand, setup instructions for a procedure we had already practiced on our own time, were written down for the applicants.

7. I was instructed to reboot my computer on at least one of these two instances. In the sequence of instructions, this took place prior to the step where the USB drive is to be inserted.

8. Both of the Exam4 glitches took place even before the USB drive was supposed to be inserted into the laptop.

9. After the oral instructions were read at the saving stage, a proctor then asked for a show of hands if there were any problems. There were quite a few hands that immediately went up in both sessions of the test, which visibly overwhelmed a full team of technicians on standby. My hand was raised for ten to fifteen minutes both times before someone could come to my aid.

10. I was so delayed during the afternoon session because of this that I was the last applicant to leave the room.

/s Jonathan Bolls

Labels: Bar Exam, Guest Blog

One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn't air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
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By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary "tests and prescriptions" before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to "tests and prescriptions" omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient's "baseline." The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the "tests and prescriptions" that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true "costs" of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Labels: Guest Blog, Medical Malpractice, tort reform

On July 16, 1969, Armstrong, Aldrin and Collins sat atop a Saturn V and blasted off to history. And our imaginations lit up regarding what was, and what could be. Woodstock and the improbable worst-to-first Amazin' Mets followed shortly.

New York Appellate Lawyer Jay Breakstone takes a look back to the summer of '69 today, as we take a break from posts on Judge Sotomayor.....
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The strong flow of events is like a river. It can carry even the most wayward leaf along for the ride. In the summer of 1969, I was surely that wayward leaf. A disastrous freshman year at an upstate New York college had uncovered two primal truths. The first, was that I was not to be a doctor like my father; the second, that you don't take a city boy from East Flatbush and put him in a town where Andy Hardy takes Polly to the prom. I was depressed and lost, with no center to my universe and no direction known.

Enter Neil Armstrong. I had spent most of my then 18 years living with the American space program. I had dawdled in front of the TV when I should have been running to school, hoping that there wouldn't be any holds so I could see a Mercury or Gemini launch live. Inevitably, the primitive digital clock on the screen counted down and the worst thing imaginable would occur - - the voice of Col. John "Shorty" Powers in Mission Control announcing a delay and sending me off to school unsatisfied. But as the summer of 1969 approached, I realized that all those unrequited mornings would soon be vindicated. The Russians had failed and we had succeeded. We were going to the Moon. Maybe I was mired in failure, but Neil and Buzz were not.

Somewhere along the way, though, I had decided that I didn't want to look like Neil and Buzz. The John Glenn crew cut didn't work for anyone other than astronauts (and those kids in that upstate town). I had attended New York City's Stuyvesant High School, hotbed of intelligence and activism. I had marched for equality and to end the war. In a culture that still required its high school students to dress appropriately, we at Stuyvesant did not. We wore sandals (if we wore shoes at all) and carried knapsacks. Most important, we had long hair and more respect for Mark Rudd and Johnny in the basement mixing up the medicine than for Richard Nixon.

Necessarily, this caused just a bit of friction at home. My doctor father had flown B-24's in World War II. He had that John Glenn crew cut. He believed in Vietnam because he believed in America. He was a hero. I, however, was none of these things. Moreover, I had just demonstrated that I was not much of a student either. We talked a lot that summer of '69 and, like a huge ocean liner, my father began a slow turn. Vietnam ceased to make sense to him and Woodstock suggested that perhaps his son might have a different way of looking at the world that was not quite as foolish as he had once believed. If there is a time for every purpose under heaven, that summer allowed me to ride the good vibrations of Woodstock into my father's heart, a place where I had never really left in the first place.

The pulse of the times can substitute for the vitality of the individual. All you have to do is be clever enough to hop on board. The summer of 1969 was a veritable freight train of optimism. We could stand on the Sea of Tranquility and we could stand in the mud of Max Yasgur's farm. It was all good. A small town college could give way to a large city university. Science and math could surrender to writing and literature. The dream of medical school could disappear and be replaced by "maybe I'll go to law school." In the summer of 1969, anything was possible. How did I know? Because the New York Mets were on their way to the World Series.

My life then had been short, but not so short that I hadn't sat in the stands of the Polo Grounds in 1962, where the woeful Mets played before Shea was built, wondering whether anyone on my team could play this game. Off in the distance, beyond the hills of Coogan's Bluff, sat the Palace of the Hated, Yankee Stadium. There, a real baseball team played. To them, it wasn't a game. Baseball was serious business there. Tell that to Marv Throneberry, my first baseman, who made every pop fly a cosmic experience. Would the gods let Marv catch it or wouldn't they? It seemed to have nothing to do with Marv. I was born and bred in Brooklyn. My mother had been a crazed Dodger fan, so much so that my Bronx-born father was never permitted to say the "Y" word in our house. By the time I was old enough to go to a ballgame, my team had left for California. I was rudderless on the sea of sports fandom. My early years were taken up by watching roller derby instead.

In that summer of 1969, however, anything was possible. I sat in the old Dodger Bar and Grill on the corner of Flatbush and Fulton, watching the games on the color television propped high in the corner. It was hot that year and the coolness of the dark bar calmed me. So did the cheap beer on tap. I sat and tried to figure out what to do with my life and watched the Mets do the impossible with theirs. Me, the Mets and three old guys who had not left that bar since the Dodgers won the World Series in 1955. They had waited in that very bar since then for the lightning to strike again. They had grown old waiting. Their families had lost track of them; written them off as dead. Detectives had closed Missing Persons files and shelved the boxes in closets marked "Unsolved." Yet, here they were, like Macbeth's three witches. For all those years they had been conjuring, stirring their Four Roses with a Rheingold back, invoking the baseball gods. In the summer of '69, when anything was possible, it happened.

I know that these things happened, because I was there. In the summer of 1969, I was born again. I floated along on that river of the impossible and let it take me where I didn't have the strength to go by myself. We kept going back to the Moon, the Mets won the World Series and even the Jets won the Super Bowl. Woodstock became synonymous with a better place where better people lived a better idea. I guess I was lucky. The time warp had opened, but only for a moment. God had smiled for an instant. Within a year, it would all be over. There would be four dead in Ohio, my mother would tell me that I shouldn't worry about the draft because she wasn't letting me go anyway, and my father would be dead. Oh, and I would be well on my way to law school, but I didn't know that at the time either.

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Jay Breakstone did, indeed, make it to law school, and was sworn in eight years after this legendary summer. His current email is NYAppeals [at] gmail [dot] com.

Labels: Guest Blog

Mrs. NYPILB sat jury duty last week She joins us today with a guest blog on her experience, with my occasional comments. That's her pictured at right with her knight in shining armor.
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Last week was civic duty week. On Tuesday, November 4th, along with a record number of Americans, I cast my vote for a new President. On Wednesday, along with a few hundred of my fellow county citizens, I showed up for jury duty in White Plains, NY.

Eric -- the guy who normally writes this blog -- made fun of me as a I walked out the door at 8:00 am to arrive at 8:30 am in White Plains, as the summons proposed. He assured me that I would be the first juror there. [As my brother-in-law Dan was when he sat.] I chose to ignore him being that I'm always early in whatever we do and, well, he's always late. To my punctual dismay, I walked into a full room of prospective jurors listening attentively to a woman giving instructions about the jury selection process. I secretly couldn't wait to go home and tell Eric, "I was right and YOU were wrong!"

An elderly judge came in to tell us more about the process and the cases. He was quite genial and cracked some jokes -- most likely the same ones he uses 365 days a year. Then he told us of two interesting cases on the roster; one case was criminal in nature and could take up to three weeks and the other was a Med Mal case that could take four. You could feel the tension in the room as we all made silent prayers not to be picked for one of those. When the judge stated that anyone with vacation plans could be excused into the other room, I seriously contemplated lying. But, being the complete dork that I am, I became convinced that they would ask me for proof and then I'd be screwed into serving some Grand Jury case that would take months. So, I sat still, squirming in my seat.

My get-out-of-a-long-trial for free card came when the judge also excused anyone with children 12 and under.

Within 30-minutes, I was called into a separate room to undergo the voir dire process on what was described as a short civil case. I wasn't picked with the first round of jurors to be questioned but was asked to stay in the room. I listened to the Plaintiff's attorney methodically question each of the 12 potentials, at first with interest and then with cynicism, annoyance and finally complete and utter boredom.

[ET note -- Keeping it interesting after the first few is always a challenge. When I sense the boredom come on, I'll ask the next juror, "You've heard all the prior questions, what do you think I should know that is interesting?" When the jurors question themselves, the answers can be interesting.]

The case was simple. The Plaintiff was Verizon. The defendants were two contractors. One a GC and the other a sub-contractor who specialized in boring holes under the ground for excavation work. In a nutshell, while boring, the defendant(s) clipped a Verizon cable. Verizon said the contractors were negligent. The contractors claimed that Verizon was negligent due to the improper demarcation of where the wires in fact lied underground. It was the jurors' duty to assign blame.

Out of the first group of potential jurors questioned, the lawyers nixed a handful, which meant that more of us had to undergo a round of mundane questioning, including me. The lawyer handling Verizon's end of the argument was painful to listen to. I'm convinced it was his first case. He asked the same series of "yes" or "no" questions to each and every juror. When it came to my turn I had to bite my tongue not to say "Let me save you some time here. Yes, I have Verizon services. Yes, I've had problems with it. No I don't think my past problems with Verizon will prejudice my judgment in this case. Yes, my husband is a Med Mal/PI attorney but I don't think it's relevant in this case. Yes, I have little kids but my Med Mal husband has agreed to be home to get the kids off the bus this week so I can serve. So, take me, I'm yours."

[ET note: Yes and no questions in voir dire, are, of course, some of the worst. You learn virtually nothing about the potential juror. In such a situation, the question I would start with is, How do you feel about Verizon? And with yes or not questions, the lawyers can never conduct the Turkewitz Beer Test.]

Of course I didn't do that. While questioning me, the Verizon man seemed to want to find an excuse for me to not sit on his jury. After saying to me "well, won't your kids be upset if you don't put them on the bus," I looked him in the face and said, "they'll live for 2 days. This is a good time for me to do my civic duty and I'd be happy to serve."

I got picked. It was going to be a breeze. One to two days at the most.

Right before entering the courtroom, I found out I was an alternate. After taking the first seat in the front row, the Judge started reading us procedural directions. When I say "reading," I mean reading. All I could think of was Snoopy and the "Wa, wa, wa, wa, wa, wa" one would hear when an adult talked to Linus, Charlie Brown or any of the other Peanuts characters. In his closing directives, the Judge did the same. What's the point in reading us the directives if we can't understand what the heck is being said? My guess is that it's just to avoid any appeals based on improperly directing the jury.

I can't remember a single other situation in my life where I have been forced to be "taught" something and not allowed to interrupt with any questions. This was the hardest part of sitting on a jury. Every 10 minutes, I wanted to be like Horshack in Welcome Back Kotter -- "ooh, ooh, ooh" with my hand waving high in the air! Instead, I had to listen and decide who was liable without having all the information I needed. Hmm...maybe I shouldn't have cancelled those LSATs after graduating from Michigan.

[ET note: Some judges have experimented with having jurors ask questions, via a written submission to the judge.]

The funniest part of the day had to do with an incident regarding the court reporter. As he was typing away, every word uttered in the courtroom was magically transcribed onto a computer screen. This screen happened to be facing the juror box. There was one 30-second period where there was a pause in the dialogue and we all saw the Reporter check his email on AOL! Granted, it was the fastest email check I've ever seen in my life. Was he looking to see if his horse won the race? If his stocks were down? If he was gonna get laid later?

In the end, the trial was over in just a few short hours. I found the whole thing to be fascinating and was completely and utterly bummed that I was told to exit the courtroom and leave the building because, as an alternate, I was not needed anymore. I was not invited to deliberate. I had so much to say and nobody to say it to. I left with my tail between my legs. But once outside my tail started to wag when I realized that I wouldn't be called to do this civic duty again for six long years. Phew.

Labels: Guest Blog, Inside The Jury Room

My brother Dan, a screenwriter, sat jury duty this week in New York. He live-blogged the experience, for publication when it was over:
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Tales From The Juror
Thoughts, observations, and ramblings, from the jury room at 111 Centre Street.

8 AM
In an effort to make sure I'm there on time, I get there before the building is even open. Big mistake. Have to wait out on the sidewalk. The day is not off to a good start.

9 AM
In my seat in the holding pen, verify that there is indeed free wifi access. The day gets slightly better.

9:30 AM
The woman running the show, giving instructions:

"You'll notice, on my right, are vending machines, where you can buy snacks. We do not own these vending machines, so if you put your money in, and your snack does not come out, we are not responsible. And there is no number on the machine for you to call. But if it happens, we do allow you to shake the machines a little."

9:45 AM
Ed Bradley (who died 16 months ago), and Diane Sawyer narrate the introduction film, which is supposed to make us feel better about being here. But it's March 12, and half the people here are sniffling, wheezing and coughing. It'll be a miracle if I get out of here alive. I think it was jury duty that did in Bradley.

10:00 AM
There is a severe lack of hot-looking women in this room. All those years of watching courtroom based TV shows, I was lied to! How could TV let me down so badly? There will be no amusing stories to tell my children years from now about how I met their mother while we sent some guy to the chair. (Do we still use Old Sparky in this state?)

If I get picked on a criminal case, and the A.D.A. isn't smokin' hot, I'm going to kick Dick Wolf's ass.

(For those, like my brother, who probably don't know who he is, Dick Wolf is the creator of "Law & Order," a show which usually features an actress playing an A.D.A who looks like she was cast from a Victoria's Secret catalog.)

10:05 AM
My brother e-mails me the following note:

"DO NOT TELL ME ANYTHING ABOUT DETAILS OF THE CASE IF YOU ARE PICKED UNTIL IT IS DONE!"

Apparently my brother thinks I'm an idiot. I'd find him guilty so fast.

10:16 AM
First call for criminal jury selection.

10:18 AM
I didn't get called. Bastards.

10:23 AM
A cell phone goes off in the room. We were told to turn them off. The offender doesn't get yelled at. Damn. I thought it might be the first chance at some drama here.

10:28 AM
Civil selection call.

10:33 AM
Not called

10:35 AM
Next call. This group is going to another building. 60 Centre Street.

10:39 AM
Not called. Good. Don't feel like moving. If I'm going to be asked to hand out justice, let me do it without having to put my coat on.

10:40 AM
The guy behind me is loudly crunching through a bag of potato chips. He's driving me nuts!

10:41 AM
Civil panel being called.

10:45 AM
Not called again.

God help me if I every have to rely on some of these folks to decide my fate.

10:53 AM
My bit to help the system run smoothly includes instant messaging with my 18 year-old niece on spring break in Florida. How did people ever stand jury duty without computers?

11:17 AM
Working on my latest screenplay. The guy behind me is starting to read over my shoulder. He thinks I don't notice, but I do. Time to cause a scene? Humm...how bored am I?

11:21 AM
Taking a break from writing to do what jury duty is truly useful for: preparing for my upcoming rotisserie baseball draft!

11:29 AM
Another criminal panel call.

11:31 AM
I'm picked!!!

1:53 PM
Back from lunch. It's amazing how easy it is to get out of serving. The judge asks "is there anyone here who can't be impartial?" and 1/4 of the people raise their hands. All they have to do is say their name and declare "I can't be impartial," and they're gone. Wow. Of course most of them are full of it. You end up hoping those people get arrested for something and have to rely on a jury some day.

There is one prosecutor, and he is not hot. Dick Wolf, watch your ass.

11:00 PM
Home.
So I was sitting there in the voir dire, one of 16 in the box, and we find out what the case is. It's a drug case. Two Hispanic males from Harlem are caught in an apartment with 20 kilos of cocaine. That's a lot of coke. There's also an unloaded gun and a minor in the apartment, both of which add to the charges. Some jurors have already been chosen, they're looking for more.

All the lawyers seem determined to remind us this isn't CSI or Law & Order, it's real life. I'm not sure if they're being prudent or treating us all like idiots.

When the two defense attorneys started to question us, I was toast. One was hung up on the concept of using "entrapment" as a defense. Do we think it's a legit defense? My response was, it's meaningless as long as the cops followed all the rules they're supposed to follow, and didn't break any laws. At the end of the day, each person, no matter what situation they find themselves in, gets to decide if they're going to be honest and law abiding, or dishonest and crooked. I pretty much knew that would get me tossed. Not that it was my goal to get tossed, I just didn't like this guys' angle, and felt like speaking my mind. The other defense lawyer was pushing the line that the cops went in without a warrant, how did we feel about that. Of course it was mentioned that this was an issue for the judge to decide, that if he says the cops didn't need a warrant, then it was OK. But he got some people to say they felt funny about it.

Midway through the questioning, one of the court officers, an older gentleman, dozes off, with his hand on his gun. It did not inspire confidence. A few of us joked about it at lunch break, while waiting to go back in.

In the end, of the 16 of us questioned first, two were selected. I was not among them. So it's back to the holding pen tomorrow.

The good news is, we don't have to show up till 10 AM. Hot damn!

Day 2

9:50 AM
The holding pen is packed, but I find a seat in the front row. Time to sit and wait. Finally finish off the Sunday Times Magazine.

10:22 AM
They take attendance.

10:26 AM
Attendance over. They didn't call me, and a bunch of others who were in my voir dire yesterday. The woman says they'll try and track down our juror ballots. You do that.

10:45 AM
The missing juror ballots are found. I am now officially here. Oh boy.

10:54 AM
Casting my first jury duty vote: Snickers or M&M's?

10:56 AM
Rotoworld.com says Orioles pitcher Adam Loewen was scratched from his scheduled start Friday because of a sore shoulder. The team president says it's a normal result of his having undergone elbow surgery 9 months ago. I don't care, I'm still not going to buy him at the draft.

Such is the excitement of jury duty.

11:01 AM
It's amazing how quiet a room with well over 100 people can get. Reminds me of taking tests back in college.

The first day of jury duty, you actually look forward to getting selected. (at least I did) A little bit of excitement. A chance to do your civic duty. A chance to throw a bad guy in the slammer, or decide who really cheated who in some business deal gone bad.

The second day, all that crap goes out the window. Please, oh please don't call my name. Just let the clock run out and let me go home.

11:36 AM
First panel called. 19 people. Not me. Good.

2:25 PM
Back from lunch. The immediate area definitely needs a better selection of eateries.

Only a couple of hours to go, and my time as a good citizen is over. Which is great, as the guy behind me in the packed jury holding pen is snoring something fierce.

4:00 PM
It's over! With only one panel called all day, they've decided to cut us all loose. The guy setting us free decides to work on his standup routine.

"Some of you will be sad to be going home. (big laughs) Some of you will be glad. Just remember this: the last two days you had two-hour lunches. Tomorrow, it's back to grabbing a sandwich at your desk. Today, you strolled in at 10. Tomorrow, it"s back to getting up at 7 AM."

So there it is. My two-day odyssey through our judicial system has come to a close. I didn't get to send any bad guys to the old gray-bar hotel, like I hoped. Nor did I set free any wrongly accused innocents, as my brother reminded me was also a possibility. No courthouse romances, no shootouts, nobody in handcuffs, no weeping family members, no mobs of reporters looking for courthouse steps sound bites. No courthouse steps, for that matter, at 111 Centre Street. All in all a thoroughly boring two days, interrupted briefly by a quick story about 20 kilos of coke.

And to think; sometime soon, some lucky jurors will get to sit in the box and hear about the ex-governor's whoring around. I bet that won't be a boring jury duty experience. Why couldn't I get called then?

Labels: Guest Blog, Inside The Jury Room

Last night I posted about the just-filed Allstate RICO suit, that includes charges that doctors and medical exam companies conspired with Allstate for "independent" sham exams and reports designed cut off treatment for patients. I also had written of a similar suit against State Farm.

Now, one of the defendant doctors responds:

------------------------------------------------------------------------------

By Anonymous

Part of the problem with McGee's case is that he is under investigation by Allstate, Geico and State Farm for insurance fraud. This was explained to us by the carrier I am on the suit with. They further explained to us that by law they have the right and have exercised the right to freeze his payments since he was not cooperating with the investigation. They felt this is a retaliatory suit. If he felt so strong about his claims why did he not contact the attorney general? (I will answer that)....Because this case is about money....it is a civil case..bottom line dollars and cents.

I would also like to point out that Dr. McGee was on the DD panel for some time also performing IME's. Personally, I feel that although I am named, I dictate all my reports, one by one verbatim. While they might sound a like and look a like, they are all done by me, my voice recording saved to back this up. As for the fee splitting every IME company in the industry uses the same method for payment.

As someone who performs IMEs I also treat a large amount of patients with private insurance and no fault (unsolicited). I apply my standard of care in my office setting to my IME setting. Over the past 15 years, I have gotten more praise from my patients then one doctor deserves. This is because I think I have always advised them to stay active with walking and swimming. I generally do not recommend physical therapy for more then a few months at a time. I find that staying fit, walking, swimming, home exercise programs and stress management are very useful tools for soft tissue injuries mainly neck pain and back pain. As an electro diagnostic consultant I do refuse to do EMG's that do not enhance patient care; That was not popular with my partner(s). As an IME provider I have called claim reps over some serious issues. My most memorable being a man with a damaged prosthetic from an accident who on my 2nd IME still did not have it fixed due to the claim rep not approving it. I also have had to send claimants to emergency rooms more then once for possible cellulitis for surgeries a few days prior for injuries alleged to be from the accident I was evaluating them for. It certainly was not the popular thing to do but, first do no harm is the oath I stand by...I had 1 claimant who saw her doctor a day before who reported bowel and bladder issues and then when I examined them they had no rectal tone...I am sure you know what that means-another medical emergency!

I do admit that I do recommend no treatment after about 5 months only if there are no positive findings on physical examination. So many times these claimants are mislead that if they quit there jobs and feign pain that they will get a large amount of money. TO me this just breeds laziness. I would hope at that time there treating physician offers them encouragement, home exercise programs, healthy lifestyle tips etc...So many times I hear that there physician has literally dropped them.

No one has ever, ever, ever, asked me to change an opinion. The allegations of false reports is bogus and coming from John McGee who is famous for owning Bill Mills to me has no merit. Furthermore, on the Allstate summons page 34 paragraph 95 he mentions that the documents to prove this have not yet been discovered. That will not fly in a RICO case. I have already had the case reviewed by a half a dozen attorneys familiar with RICO who all agree that the elements needed for a true RICO case are not there. There needs to be a crime within a crime with hard evidence-not assumptions. This case has no concrete evidence just a bunch of assumptions.

I have a years worth of voice recordings to show my reports are authentically mine and I know that I have never excepted a bribe or for that matter have been offered a bribe, ever. I have done IME's on claimants who have then asked for me to treat them.....I do admit I make more money from IME's but time wise I spend more time treating. That is probably due to that fact that I take medicare whose reimbursement for time is about a 1/3 of the time of an IME and my medicare patients all have co morbidities. So I see and treat more patients by a measure of time but dollar for dollar I get paid more per IME. But on top of that I make more money from investments outside of medicine so how much I make in medicine would be moot as money is not the only motivator for doing IME's in my case.

Also as a doctor who performs IMES, I ironically find that the large IME companies, mainly the ones named in the suit really could care less about if I continue or discontinue treatment. My recommendations have been questioned by smaller companies and not to my surprise I never got work from them again..That is not a problem for me. It might be a flaw in the system but I would not want to work with a company that put me under pressure to change my reports. I would also like to give you my opinion on causality after reading Harvey Goldberg's testimony. I do very few liability exams so causality is usually not a problem in the no fault sector. There are a few carriers that never ever want it addressed. Then there are companies that always want it addressed. I feel that in No fault causality is really a legal term. That is because I was once deposed and asked how I could feel that a cause and effect relationship existed with no police accident report was reviewed or AOB form. I had based it on the claimants history of the accident. To me when I have to start analyzing the insurance documents...I have left the field of medicine and have entered into the legal arena.

I would never omit a CR statement based on the outcome of an exam but if I was asked to leave it out regardless of my opinion prior to the exam I cannot see the fault in that as a physician. I have been told sometimes to take it out of my report as the directions I was provided with indicate that "causality has already been established" or some other believable statement. To me the most important merits to the report are that my history and physical examination remain my opinion. After that M&S, apportionment and CR can be addressed at any future time since it is based on those elements.

To conclude in my opinion Dr McGee is not going to be credible for so many reasons. Besides for owning so many bill mills, being under investigation himself and also being on IME panels his claims are just not how it is done with these companies. Maybe that was his experience on a panel which makes me question his integrity and intent even more. Of interest, there is a case now involving RICO which involves personal injury attorneys referring claimants to the same doctors over and over....we should all stay tuned for how that one ends......

One more experience I want to share. I was recently asked to testify in a civil courthouse on a bill for a diagnostic test in dispute. To my surprise the insurance carrier produced as a witness the claimant who denied even having the test...It was settled in 20 seconds....I was paid for the day and home before 10 AM!

Labels: Guest Blog, Insurance Industry

Friends, law stories don't get much better than this. It started with the New York bar examiners losing my test results in the summer of 1985. And it ends 22 years later in the wake of another New York bar exam fiasco, this time with lost essay answers on laptops due to a software glitch. This graduate, who was told that he failed the July 2007 exam, will not be taking the February bar exam being given today. This is his story...

-------------------------------------------------------------
Guest Blog by Eric Zeni
(awaiting admission)

My experience with the bar exam was previously featured on this blog; in a guest posting, I recounted how I was affected by the software malfunction that caused my laptop to crash while writing the exam and seemingly erased one of my essays. When results came out in November, I learned I failed the exam by four points. I later received copies of my essay responses back and discovered that one of my essays was still incomplete -- an essay which I had begun typing and was forced to finish by hand when my laptop crashed. I later learned from the Board of Law Examiner's office that there was some type of a review being conducted, and it was then that I began to seek more information. I contacted Eric Turkewitz because I had seen the coverage he had given to the software malfunction and grade approximation on this blog, and I asked if he had heard about a review. Although seemingly no one had heard of this development, Mr. Turkewitz was helpful and called the BOLE office himself and confirmed the existence of the review, which encouraged me further.

I wrote my request unsure of how it would be received or what I could ultimately expect. The only information BOLE had told me was that the Executive Director would be conducting the reviews. I was well aware that BOLE does not take appeals and that this was uncharted territory. In my request, I explained what occurred on the day of the exam, and I attached copies of emails that I had received from the software company which confirmed that my exam had been uploaded and also from BOLE stating that they were in receipt of all my printed and handwritten essay responses. Despite those assurances, I explained, I discovered that my essay was still missing. I stated how devastating it was to learn I failed the exam, but what an injustice it was to discover that the graders had not graded my complete response. Finally, not knowing what to expect, I respectfully requested that my exam be 'reviewed.'

I waited about two or three weeks without hearing anything. Each time I called the BOLE office, I was told the Executive Director was reviewing the requests and that he would be in touch. Finally, around year end, I asked to speak with the Executive Director, who returned my call later in the day. When I spoke with the Board’s Executive Director, John McAlary, he asked if I had any questions before he explained the situation. I told him that while I obviously wanted a favorable outcome, what I desired most was finality and some resolution as the February exam was fast approaching and I needed to know how to proceed.

Mr. McAlary explained that after receiving my request and looking into the issue of the missing portion of my essay, they were able to go back to the software company's computer archives and retrieve my essay. My retrieved essay was then submitted to a grader, who determined that I passed. At that point, the Board had to determine whether or not it would change my result. Finally, Mr. McAlary said that he was happy to be the bearer of good news, and that the Board had decided to change my result and that I had passed the bar exam!

I was amazed. Certainly this was the outcome I had hoped and prayed for, but I never figured it would be possible. Speechless, I thanked Mr. McAlary, who congratulated me, and we ended our conversation. I then told everyone what had happened, and it seemed that everyone else was even more excited than I was. When I shared the news with Mr. Turkewitz, he was very happy and congratulated me for having won my first case, and for having successfully achieved a reversal when BOLE was adamant there was no appeal. It took awhile for it to sink in that I had passed and would never have to study for the exam again. Once I fully realized, I was extremely happy that my ordeal was over and felt vindicated by the good news. I worked too hard this summer to have failed, and to have missed the mark by only four points was heartbreaking. Although I never expected it to be reversed, I was always determined that come what may, I was not going to take that exam again. I finally received my official notice on December 31, 2007, stating I had passed the bar exam and certifying me for admission to the Appellate Division, Second Judicial Department. It was a great feeling to finally have that piece of paper in my hands and I finally felt the joy and relief that I am sure everyone else who passed the exam had felt weeks before.

I truly empathize with those taking the bar exam this week. I've often thought of all the time I would have spent in the law library studying again day and night, and especially since I'd be taking the exam again now. Getting that bad news is devastating, and it takes a lot of strength and tenacity to bounce back from it. In the time since everything has been resolved, I have been eagerly looking for a job. I am looking forward to being admitted and am anxious and excited to begin my career as an attorney.

It took me a long time to decide whether I even wanted to write the conclusion to my story. It's been weeks since Mr. Turkewitz first asked me to do a follow up to my original posting. I've recently had occasion to share this story, and each time I do, everyone seems to enjoy it and people remark what an extraordinary story it is. Although my life would have been much less complicated had I originally received good news in November, I am clearly pleased with the outcome. I am thankful that I passed and that the Board rectified the situation. I owe thanks to Mr. Turkewitz for his advice and assistance, to John and Damian Pieper for their thorough preparation and support, to my friends for their support as we studied for the bar this summer and as this continued to unfold, and especially to my family and girlfriend for their love and support. And most importantly, I thank God that I do not have to take the bar exam again!

--Eric Zeni
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[The idea to write my own story from 1985 came from Above the Law at this post. Had it not been for that request for anecdotes, I probably would not have written the story up and become involved in the issue, and Zeni and I would never have spoken. -- E.T.]

Update, 2/27/08: Bar Exam Reversal: How Did New York Bar Examiners Screw This Up?

Labels: Bar Exam, Guest Blog

The New York State Board of Law Examiners has confirmed to me that they will hear appeals regarding the July 2007 exam. That exam was plagued by malfunctioning software for those that submitted essays on laptop computers, only to see all or part of the answers disappear. (See: New York Bar Examiners Still Can't Find Complete Essay Answers.) The BOLE subsequently said that they approximated the answers if they were incomplete, based on how the examinees did on other answers. (See: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers). Those grade approximations were subsequently called into question based on an anonymous tip in this blog. (See: How, Exactly, did New York Grade That Bar Exam?)

The appeals, which must be submitted in writing, will be heard by the Executive Director, John McAlary.

My call to the BOLE was prompted by prior comments and personal contacts, which ultimately resulted in the guest blog that now follows. This appeals process, to my knowledge, has not been previously documented.

Bar examiners with a secret appeals process. Who'd a thunk it?
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By "Anthony"


I sat for the July 2007 bar exam in the laptop program. Prior to the exam I downloaded the software and completed a practice test with no problems. The morning of the exam, the software crashed as I was writing essay one. A technician restarted my laptop and I completed essay one. I moved on to essay two and about halfway through, the software crashed again. I called a technician to restart the computer, and fed up with the situation, decided to finish the exam in the answer booklet. I started handwriting the exam, finished my response to essay two in the answer booklet, and moved on. Towards the end of the morning session, I found myself with a little time. The technician had restarted my computer while I was still handwriting my answers, so I decided I could review what I had written on the computer or at least make sure everything was there. When I attempted to look at what I had written on the computer, I discovered that the program had duplicated what I had written for essay two, and overwritten it and replaced my response to essay one. As if it wasn't bad enough having the software crash on me while I was trying to write the exam, now I discovered that a whole essay had apparently been erased by the software. I called this to the attention of the technicians, who physically took my laptop to another part of the room and worked on it for the rest of the day. The whole incident was frustrating and frightening and made it difficult to concentrate and complete the exam. When I think back, I am actually proud that I went back that afternoon and finished the exam. I finished the rest of the bar exam and was told by the technicians and the head proctor that there was some type of backup system with the software and that they would be able to retrieve my exam. Obviously, I had no faith in the software company and spent the next few months worrying whether my essay had been lost.

Toward the end of August, I received an email from the software company requesting I upload additional files. I did that and received a confirmation from them. About a week later I received an email from BOLE stating they were in receipt of my printed and/or handwritten responses to all the essays. Still fearful that my essay had been lost, I emailed the software company to double check. I explained that while BOLE claimed to have my essays, I wanted to be sure they had the correct response and what I had actually written. The software company replied and said that they were able to retrieve what I had typed before it was overwritten. I was relieved to hear this and now merely spent the next few months like everyone else, worrying whether I passed or not.

The day the results came out in November, I checked the BOLE website and learned I was unsuccessful on the exam. A few days later I received my official notification in the mail, and learned that I had failed the exam by only a few points. It was then that I began to suspect something, so I ordered copies of my essay responses along with the questions and sample answers. I received these around the beginning of December, and as I looked through my responses I discovered that while the software company had retrieved the answer I had typed for essay one, it was an incomplete version. During the exam, after the technician had restarted the program, I completed my response to essay one. The answer BOLE sent back to me clearly trails off mid sentence in the analysis portion of my response and is clearly incomplete. Further, I had begun typing my response to essay two on the computer, and when I looked through my responses from BOLE, only the handwritten second half of the response was present. The handwritten portion of this response contains only a few sentences of my conclusion and is missing my recitation of the relevant law, and all my legal reasoning and analysis.

I began calling BOLE to see where the rest of my responses were. After about two weeks, they finally told me that whatever they had sent to me was all they had. The secretary I spoke with asked whether I had written to request a 'review.' I asked her why I would have done that when the Board's stated and official policy is not to entertain appeals of the exam results. I was only told that I should put a request in writing. Later, as I attempted to draft the letter, I called the BOLE office back to get some instruction on exactly what I should request. I spoke with the same secretary and said that I wasn't sure what I should say and what I should expect or request from the Board. I again asked what exactly this review was and what was to be expected since the Board states there is no appeals process. Finally, the secretary told me that BOLE has been receiving a lot of correspondence from candidate’s attorneys requesting a review, and that the Executive Director of the Board was accepting these requests. I asked her what I could expect out of all this and she said that all she knew was that they would investigate and "try to come up with something."

I drafted a letter to the Executive Director outlining what occurred during the exam, detailing the missing and incomplete responses I received back, and requesting that my exam be 'reviewed' as well. I do not know what to expect from this review, and I do not know what the board will be able to come up with. The bar exam and all the laptop problems was frustrating enough, but to have been told that they had my complete responses and then to discover that what was graded was incomplete and missing feels like a tremendous injustice. I am still waiting to hear back from the Board and I hope that they make some kind of decision regarding this issue soon.
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Update: 2/27/08 -- My pseudonymous guest blogger follows up on the results of his attempt to appeal the decision to fail him:I Passed The New York Bar Exam!!!!

Labels: Bar Exam, Guest Blog