One might wonder at the mechanics of adapting to a pandemic. A recent article I read postulated that this is "the worst pandemic that most anyone living has experienced." Of course, the impact has been significant on life and livelihood. But, the Johns Hopkins data currently shows just over 3 million deaths related to COVID-19.
Most everyone alive has also experienced the impact of another pandemic that has been ongoing for almost forty years, which is a disease thought to have originated in 1920, but which became a human pandemic recognized in the 1980s. Of course, that is HIV, which has killed well over 30 million people. In 1999 it was the fourth most prevalent cause of death worldwide. For some reason, the fund-raisers and discussions of this pandemic have subsided. It may be too easy to forget pandemics as they fade into our past.
Without a doubt, the SARS-CoV-2 virus and COVID-19 are impacting our society profoundly. Many things are more difficult. One that came to my attention last summer was the seemingly simple concept of administering an examination. When the normal time for The Florida Bar Examination approached, Florida and other states first strove to postpone. For those who have succeeded in forgetting the path we trod through this pandemic, many lived week-to-week in 2020 with hopes of the arrival of good news.
The state responses regarding a Bar Examination were varied. According to Justia, some states proceeded with such exams as scheduled, some provided alternate dates instead, some went online, and others simply decided that testing was not necessary, granting a license to practice on the strength of a diploma alone (Washington was among those, according to The Spokesman-Review; Oregon did also, according to the NCBE). According to Bloomberg, the states providing this included Utah and Louisiana. That is not unprecedented, there were times historically when various states utilized the "diploma privilege." Over 1,000 lawyers were admitted in 2020 with such "privilege."
There was a lot of activity on social media about bar exams. Many students around the country felt very strongly that they should (1) not have to go to a public place to take an exam, and (2) should not have to wait to take an exam. When some states provided "remote" alternatives, there was also some complaint that students should not have to (3) have access to computers or the Internet, or (4) undergo the stress of a remote testing paradigm. One noted pointedly that the process, delays, and tribulations were simply not "fair." When others on social media ridiculed the "fair" statement, it soon became a finger-pointing free-for-all all. There were a handful of responses suggesting that the practice of law as a career might well provide a modicum of stress as these young lawyers move forward on their selected paths.
In the midst of a summer of riots, some law students protested in front of the Florida Supreme Court. Some of the law students brought their mothers with them. They complained about delays and the impact on job offers or job prospects. Some complained of challenges with software selected by The Florida Bar Examiners to administer a remote bar exam.
But, Kentucky had a different software glitch. There, graduates took a bar exam and were notified in early December of their success. The Courier-Journal reported that 15 applicants received an email informing of their passage. One was so excited that he proceeded to "send in his bar dues," before receiving a phone call about 4 days later that week informing him that "he had actually failed the exam." A "data processing error" was responsible for the misinformation earlier in the week. He expressed frustration, pain, anger, and embarrassment. The same or similar error had resulted in the opposite: three "told they had failed when in fact they had passed."
According to the Courier, the Bar Admissions apologized and "acknowledged no apology can undo the anguish and disappointment." Officials conceded that the data relied upon should have been double-checked. Politicians made public comments ("awful and unacceptable") and apparently social media participants "condemn(ed) the Office" of Bar Admissions. A law professor labeled the error "cruel and a disgrace." He argued that law students "deserve so much more" from the Bar Admissions office.
A tragic error? Certainly. An embarrassment for officials? No doubt. An impact on the misinformed who celebrated, announced success, and focused on moving forward professionally? Absolutely. A simple human mistake? Absolutely. Those who made disparaging remarks about the Bar Admission Office, I am confident, are among the comfortable majority of adults who have never made a mistake. It is perhaps too easy for those of us who have never made an error to fault and pillory someone else when they do. And, with our access to the great broadcast capability of social media, that criticism of people in the minority, the mistake-makers, can be swift and absolute.
The situation is troubling from various perspectives. Is there value in professional testing? Simply stated, does an examination have value in determining who may be a lawyer, a doctor, or an accountant? If there is no value, why do states utilize them in the best of times? If there is value, why would a state abandon them in troubled times? Are the perfect among us really the majority, or do we all make mistakes and errors every day? My guess is that those of us with human failings are in the majority (by a lot). I am guessing that even some law professors make periodic errors and mistakes. The pandemic added stress to many lives, of students, lawyers, professors, and likely even Bar Admission employees. It is practical to presume that stress brings with it some increase in our individual propensity to make errors.
I heard a story recently of a motion to compel production hearing. The alleged behavior of one party looked egregious. Responses had not been forthcoming. Accommodations had been seemingly ignored. Commitments had not been kept. Despite the first blush of being contumacious, a different story emerged in the hearing. It was a story of a professional under stress, suffering life-disrupting circumstances, dealing with a myriad of unexpected and frankly overwhelming personal and professional challenges. That motion to compel was withdrawn. There was, through communication and empathy, a path to repair. You have no way to know what someone is going through until you ask and then listen to their explanation.
As we stand on the brink of returning to normalcy, might we all admit that the last 12-14 months have been stressful? Could we acknowledge that mistakes were likely made, some undoubtedly worse than others? Those undoubtedly led to some disappointments, embarrassments, and even consequences. But our society has largely survived and we emerge hopefully stronger than we were. I commiserate with those whose professional paths were detoured, but I commiserate also with a great many people who strove throughout this pandemic to maintain a course, for themselves and others.
There is repair. Does repair mean the damage never happened? No. We cannot, individually or collectively erase the past. But, we can come to accept it, accept both our own imperfections and those of others, and we can set out yet again a bit stronger than we were before the challenges. As we do, let us remember this pandemic and the people that it affected, personally and professionally. Though it is not yet of the HIV magnitude, it is likely to be with us for years. Though it is likely to threaten and affect less of us moving forward, let's remember that it is likely still affecting some of us. Let's try to stay off our high horses and admit that we all make errors; our focus should remain on repairing them.
