What is a deposition and who can do that?
A deposition is simply a testimony given outside the court by a witness (the deponent) under oath or affirmation. This testimony is taken by lawyers who ask him or her oral questions; then, this is put in writing and duly authenticated to be used in a trial of a civil action or a criminal prosecution.
What Role Notaries Play?
Notaries are authorized to administer an oath or affirmation for a deposition to the witness or deponent for use in court or on an investigation. The deponent must be physically present and be properly identified. Notaries who keep a journal should make an entry at this point obtaining also the deponent’s signature. A notary would then administer the oath or affirmation asking (may have the person raise his or her right hand):
“Do you swear (or affirm) that the testimony you are about to give in this matter is the truth, the whole truth, and nothing but the truth (so help you, God)?”
Once the answer is “yes,” the deponent is under oath, and the duty of the notary is over!
Depositions may be taken over the phone; however, the witness or deponent must be physically present at the time the oath or affirmation is given. Regarding the presence requirement, here is what the FL Governor’s Reference Manual for Notaries states:
“There is no exception to the presence requirement, even if the attorneys for both parties stipulate otherwise. (See Attorney General Opinion, No. 92-95, December 23, 1992.) This means that, if you are asked to swear in a person [administer an oath or affirmation to] over the phone, you must decline. A notary, or other authorized official, would have to be present with the deponent for the administration of the oath or affirmation. ”
To make the written certificate for the notarial act in FL, the manual suggests that it be done like this:
STATE OF FLORIDA
COUNTY OF ____________
In my capacity as a Notary Public of the State
of Florida, I certify that on the _____ day of
_________________, 20___, at (time) a.m./
p . m . , ( n a m e o f d e p o n e n t ) p e r s o n a l l y
appeared before me and took an oath (or
a f f i r m a t i o n ) f o r t h e p u r p o s e o f g i v i n g
testimony in the matter:__________________
or Produced Identification__________
Type of Identification Produced__________
PRINT, TYPE OR STAMP NAME OF NOTARY
NOTE: Notaries who are not lawyers may not participate in the deposition, i.e., question the deponent; to do so is overstepping their authority. A Florida appellate court ruled that taking a deposition is practice of law under section 454.23, Florida Statutes. So if a notary engages in questioning the witness, he or she is engaged in UPL, and the notary may be suspended by the Governor for violating this law aside from possibly facing criminal charges for the unlicensed or unauthorized practice of law (UPL).
There is a case mentioned on the manual regarding two paralegals, one who was a notary also. To read more about it, please visit this link: http://www.flgov.com/wp-content/uploads/notary/ref_manual11-22.pdf p. 14.
You can also check my post titled “Can Notaries Prepare Legal Documents?” to learn more about the limits for notaries and unlicensed practice of law (UPL).
by Alessandra Gomes
On My Way FL Notary S.A.
- Are Credible Witness(es) Affidavits an Acceptable Form of Identification? (onmywayflnotarysa.wordpress.com)
- Documents Prepared or Notarized in Other States (onmywayflnotarysa.wordpress.com)
- Notarizing a Signature on a Living Will without a Notarial Certificate (onmywayflnotarysa.wordpress.com)
- Special Situation: Notarizing For a Person Who Is a Minor (onmywayflnotarysa.wordpress.com)