On October 31, 2007, the examiner of the WTE section reported to the Clerk's Office that he had made a scoring error in his report of the examinees' scores. This was not a "re-grade,” but merely an error in transcription that was discovered as the examiner prepared to transmit the examination books to the Court. The error was that an examinee who had previously been reported as having passed the WTE section, had in fact failed the section. The Clerk of Court then reviewed the examinee's other essay section scores and discovered that the examinee's WTE failure, coupled with the examinee's failure on one other essay section resulted in the examinee not receiving an overall passing score. The examiner's initial report of a passing score was a scrivener's mistake. The scoring error and its consequence was reported to the full Court at its conference on November 1, 2007, at which time the Court was faced with determining what action, if any, to take with regard to the error.
After deliberation, the decision was made to eliminate the entire WTE section from consideration. In making this decision the Court determined that it would be inappropriate to reverse the affected examinee's previous notification of successful completion of the examination. See Rule 402(i)(5) ("The results reported by the Board of Law Examiners is final. . . ". This decision then raised the question of fair and equitable treatment for those examinees, who, like the examinee affected by the reporting error, had failed the WTE section and only one other section, thus resulting in an overall failing score. It was against this backdrop that the Court made the decision to eliminate the WTE section from consideration so as to provide equal treatment to those in exactly the same position as the affected examinee. The Clerk advised the Court that this action would result in an additional twenty examinees receiving overall passing scores on the examination.
Let me get this straight. Rather than an early Christmas gift to the one person who was told he passed but really failed, the Court throws out an entire section--the result of which is that 20 persons passed who should have failed. So a better result is to have 20 new lawyers admitted to the bar who failed the exam rather than one lawyer admitted who benefited from "an error in transcription"?
I like to believe that our Supreme Court strives to do the right thing. For those much more cynical than I, this explanation will be a tough sell.