NOTARY MEETING UPDATE - April 14, 2004

For the first time in a long time my mother cannot chastise me for procrastinating. I had been dragging my heels on ordering my new Notary supplies, and as the information flowed at last Tuesday's meeting, it came to light that I don't necessarily need to order new supplies.

No journal, no seal, no stamp...not anything.

The first thing that Judi Goldberg from the Governor's office told us is that administering an oath or affirmation is not required to be entered into a journal. Page 11, Section 11(c) states, "A notary shall keep...a journal...for every notarial act except for...the administration of an oral oath."

You don't need to buy a journal, you don't have to write down any information, you don't even have to seal or stamp your name attesting to the fact that you gave an oath at all!

The most crucial thing you have to do is identify that witness. The second biggest topic of conversation at the meeting was the ways in which to obtain satisfactory identification of a deponent.

There are only five accepted Federal or State issued IDs: driver's license, passport, military ID, welfare card, or a state school ID. Not just any school ID, but a state school is fine. The ID must contain a photograph and signature of the person.

If any of these documents are not available, we were advised to satisfy ourselves that the witness is who they say they are. This is where we are to use our common sense and best judgment. If you try your very best to identify someone, then revocation of your commission is not in your future. Revocation is only going to happen from egregious and willful acts.

As far as credible witnesses to vouch for the deponent's identity, attorneys are not a party to the lawsuit and not necessarily a direct participant, but they are getting paid for their services, so you must make a judgment call if you want to rely on them as a credible witness. But keep in mind that you may only use an attorney as a credible witness if you personally know that attorney, and that is not always the case when they show up with the witness to your client's office for the first time.

And as Judi Goldberg said, even if you personally know your client who can then vouch for the other attorney who can then vouch for the witness, that kind of situation is not covered by the Executive Order.

Children are basically the same. You cannot rely on their parent(s) because they'd most likely be a party to the suit; and the attorney, although not a party to the suit, is getting paid for his or her services.

Interpreters are technically making "a vow of truthfulness"; they are being sworn in to truthfully and accurately translate the proceedings to the deponent, and that is considered a notarial act, therefore they must be satisfactorily identified as well.

Not that there ever should have been in the past, but there will be no more telephone or video conference depositions...the witness must be in the Notary's presence in order to be identified and sworn in. Of course you may continue to have telephone or video conference depositions with the attorney on the other end, but never the witness if you're the Notary who's expected to administer them an oath.

And also important, when taking a deposition in another state, even if the case was filed in Massachusetts, the Notary's powers, such as the Governor's powers, only reach as far as the state line. The attorneys in the pending action cannot stipulate that the court reporter be allowed to swear the witness in. We are not allowed to act outside of Massachusetts, no exceptions! There must appear someone who has the power to administer an oath to a witness in that particular state.

For years court reporters have attached a certificate page to the back of the transcript that they prepared. And on that certificate page you have signed your name and sealed it with your stamp as a Notary. We have learned that there is no need for court reporters to use their seal. You are not notarizing anything on your certificate page, certainly not your own signature. You are only stating that you performed a notorial act, i.e. swore in the witness.

There is no need for court reporters to keep a journal for when we administer an oath or affirmation, therefore signing and sealing a certificate page is also unnecessary.

You as a court reporter can attest on your certificate pages that the witness appeared before you, satisfactorily identified themselves, and you swore them in. That was the notarial act, and you can describe it to satisfy anyone reading the transcript that you did in fact have the power to do so.

You can note that you are a Notary in the Commonwealth of Massachusetts, and print your commission expiration date, but there is no requirement that you seal it. That eases the worry for court reporters who email their transcripts to their agency for printing, binding and invoicing.

There was additional talk about the reasons why we use our seals. Some were saying we seal our signatures to indicate that this is the original transcript. That in and of itself is not a notarial act, therefore a seal is not called for. Your signature alone indicates it's an original; just don't sign your copies.

With regards to our "jurat," commonly known as our signature page, I would suggest that we all change them. On Page 7, Section 5(e) of the Executive Order, it has wording for jurats.

The Governor's office is not going to be a stickler about the exact format, just that all of the information required gets incorporated into whatever your creative writing comes up with.

What you're basically doing by including that language on your signature pages is so when a deponent brings their transcript to a Notary to read and sign, it makes that Notary's job easier by specifically telling them what they need to do.

So I would suggest you don't throw out your new or old Notary supplies just yet. There may be occasions when a witness will come to your office to read and sign a transcript; there may be occasions where your friend will ask you to notarize a document; or you might decide to open up a side business notarizing documents. I'm beginning to think you can make a pretty penny doing just that. I saw one of the "official journals" at the meeting and immediately went into sensory overload seeing all of the information that is required to record by this Executive Order.

To do all of those things you will need to comply by obtaining a journal and seal and stamp.

Another valid concern is the reporter versus the agency owner. No one wants to bite the hand that feeds them. Your intention is not to upset an agency's client by disrupting or delaying the proceedings of the day. You are a court reporter and a Notary. You wear two different hats when you go to a deposition. The agency owner is not in the room with you helping to make a determination on someone's identity, and the agency is not going to be held liable if your Notary comes into question, only you.

Satisfy yourself. Protect your commission.

MCRA believes that a couple of months after this Executive Order goes into effect, bringing ID to a deposition will become standard. It's just the transition that's going to need to take place by educating court reporters and attorneys about these new standards in taking depositions. After a while, no attorney is going to think you're disrupting the proceedings by asking for proper identification.

Handed out at the meeting was a packet of information which included a sample stipulation, sample client letter, and sample sworn statements to include in transcripts.

The stipulation was described by someone as a waiver of liability. I prepared it knowing that there will be situations when the witness will not have satisfied me that they are who they say they are, yet the attorneys will want to proceed anyway. In that case, I plan to have an attorney read the stipulation into the record, basically holding me harmless if we go forward and somewhere down the line it is discovered that the witness has falsified their identity.

Now what are the chances of that happening? Slim and none, I say. But I'm not prepared to lose my commission over it. You can't guarantee me that a judge won't look at the court reporter's actions as "egregious." But you can bet that if a judge does, the Governor will listen...then there goes your commission.

Want the stipulation? Click here.

The next part of the handout was a sample client letter. It is simply informing your clients of the upcoming deadline, and tells them that from that date forward you will not place a deponent under oath unless they present with proper identification.

Someone at the meeting also suggested that attorneys reword any subpoena or summons they send out to include a reminder for the witness to bring proper identification. This will be especially helpful for third-party witnesses who might not personally have an attorney.

Want the client letter? Click here.

The third page of the handout included samples of sworn statements that are intended to be inserted into the beginning of transcripts. Instead of the usual sworn statement, these are more specific so any reader of the transcript knows that before the proceedings even began, the witness identified themselves and satisfied the standards required by the Commonwealth of Massachusetts.

Want the sworn statements? Click here.

The last page had a list of places where you can obtain your Notary supplies. I researched seven companies and included their websites, phone numbers, and prices of items for your convenience.

Want a list of Notary supplies? Click here.

Additionally, copies of the Executive Order and the handouts will be available for pickup at the MCRA offices at 50 Congress Street, Suite 525 in Boston.

Last, but not least, the deadline to comply with this order has been extended yet again, this time to May 15, 2004. You are welcomed and have sufficient time to make suggestions to change this Executive Order. Send them to the Governor's office at:

Notary Public Amendments
Room 271
State House
Boston, MA 02108

As always, if you have any comments or questions,please email me at
contact@mcraonline.com

We're here for you!

Kathryn R. Sweeney
President, MCRA