Brent J. Savage Sr. of Savage Turner Durham Pinckney & Savage, Savannah, Georgia. (Courtesy photo)

A Savannah attorney says he will ask a federal appeals court for an en banc rehearing in a case against the technology firm that erroneously failed 90 people who took the Georgia bar exam in 2015 and 2016.

"I think it's wrong," Brent Savage Sr. said of a Jan. 8 ruling from the U.S. Court of Appeals for the Eleventh Circuit, which affirmed a trial judge's decision to throw out the case against ILG Technologies. "It's awful to do kids like this. … They are absolute victims, and victims should have some sort of remedy."

Savage, a partner at Savage, Turner, Durham, Pinckney & Savage, said that Lloyd D. Murray Jr. and Jennifer McGhan—who sued ILG in what they intended as a class action—lost a lot of money as a result of the error. "They couldn't be employed as attorneys," he said of the potential class members.

When ILG released the erroneous results, Murray was fulfilling his lifelong dream of working in practice with his father, a well-known attorney in Richmond Hill. McGhan was an attorney who had passed the Florida and New York bar exams but wanted to open her own solo practice in her hometown of Kingsland. Instead, she had to move out of state to find a job.

The errors stemmed from the state Office of Bar Admissions' contract with ILG Technologies, which provided software to compute and transmit bar exam results. The lawsuit, originally filed in Bryan County Superior Court and transferred to the U.S. District Court for the Southern District of Georgia, claimed the false failures were caused by defective software. ILG rejected that claim and sought to shift blame to the bar admissions office and the State Board of Bar Examiners.

District Judge Stan Baker called the erroneous scores "a cruel twist of events," but granted ILG's motion for summary judgment last year in ruling that only parties to a contract may sue to enforce it.

In a consensus opinion last week, Judge Adalberto Jordan and Senior Judges Gerald Tjoflat and Susan Black said the case presented "crucial issues" for injured claimants who have no direct contractual remedies "as the increasing prevalence of injuries caused by software presents legal questions as to the duties of software designers and vendors."

The appeals panel determined that ILG "owed no duty" to the test takers given erroneous scores, and that any injuries alleged in the negligence suit against ILG were not recoverable. The panel also held that even under the contract terms, it was "unclear" whether ILG owed any duty to the test takers.

Edward Wasmuth Jr., a partner with Smith Gambrell & Russell in Atlanta, said ILG is pleased with the ruling, and that the matter should soon be brought to a conclusion. Wasmuth added that the test takers didn't even know about the existence of the software firm or any role it may have played in scoring the bar exams.

Wasmuth defended ILG with firm partner Alan Wachs of the firm's Jacksonville, Florida, office.

Before he was erroneously notified that he failed, Murray was working in his father's law office with a starting salary—contingent on passing the bar exam—of $60,000 a year and benefits that included an additional $14,000 annually to pay off his law school loans, according to court pleadings. When he failed the bar, Murray lost that position and became a paralegal for $26,000 a year without benefits.

Murray said that "everybody within 100 miles" knew he took the exam to fulfill his dream of working with his father, Lloyd Murray Sr., at the firm that he founded.

"I wanted to be by his side practicing," Murray said. When he was told he had failed, "My mother cried her eyes out."

In addition to a dramatic loss of income, Murray said he suffered from depression, shame and embarrassment after he was told he failed the exam.

Murray said he still attended the swearing-in of friends who did pass the bar, including one his father also hired.

Murray took the bar exam two more times—apparently failing in February 2016, although ILG software was still allegedly generating grading errors—and in July 2016, which he said the bar never graded after discovering he actually passed the first time he sat for the exam in 2015.

Murray said he was blown away by the circuit's conclusion he doesn't have a remedy.

"I worked, cried, studied, took the bar, work, cried, studied, took the bar," he said. "I had a year of my life ruined."

Additional Reading:

Suit Targets Software Company for Bar Exam Fiasco 

Software Exec Says Bar Exam Mistake Wasn't the Company's Fault

Georgia Bar Exam Takers Were Wrongly Told They Failed