Editorial on Replacing Unnecessary and Burdensome Notary Public

The notary public should be abolished as to litigation documents for use or filing in state courts.

The federal courts have already freed attorneys from the burdens of the notary public, and the states should do the same, for state-court litigation. Notary publics are no longer needed.

First of all, you might wonder what's the fuss all about? This reminds me of research I did years ago to try to determine why certificates of corporation for filing in Delaware had to be filed in two places, and in such a tiny state. I could understand filing in New Castle County, where Wilmington is located. But why was a filing also required in Kent County?

Out of curiosity, I called some persons in Delaware and was given the answer: There was a very nice, elderly man in charge of the filing in Kent County, and most of the politicians wanted to do him any harm by eliminating his office and compensation as the person in charge of filing certificates of incorporation in Kent County, so his office and all the required second filings, and associated costs in terms of time, money, failures to file and their consequences, were cont inued. The waste was recognized by all. Nobody was fooled, but the unneeded requirement continued for many years. I recently inquired to find out if things had changed, and came to the conclusion that the old man had finally died. The Kent County filing requirement had been dropped.

Notary publics fall into this same category of unnecessary government-required activity, at least as to papers for filing in court. These papers are what we commonly call affidavits, which according to custom and usage require a notary public to create. But this doesn't have to be so, and is not so in federal c ourt, as I'll discuss shortly.

But why causes me to write this editorial. What is it about notary publics which could cause someone (who is both an attorney and a notary public) to advocate the elimination of his lesser office and use. Well, let's see.

First of all, let me tell you when I became a notary public. I became one in 1962 upon graduation from law school and admission to the New York Bar. All I had to do after admission to the Bar was file a form and pay a fee, and I became a notary public, w ithout any test. [I'm not complaining about this; the law is correct in assuming that a lawyer knows enough to be a competent notary public.]

In my first legal employment, in a firm of about 100 lawyers (which today would mean about 800 or so), we had a booklet published every 6 months or so which contained the names, addresses and telephone numbers of all lawyers in the firm (we didn't have pa ralegals at that time, or at least persons who were called that), and alongside the name of each attorney who was also a notary public there would be an asterisk, prominently indicating who anyone in the firm could go to if he/she needed a notary.

Thus, if I was preparing an affidavit for execution by a client, or perhaps by myself, I could find a notary in 3 seconds, from a selection of perhaps 30 or 40 persons. Using a notary, during my early years, was easy, to ok little or no time, and was never questioned by me. I didn't know that things could be done differently, because there was little reason from my own limited standpoint.

When I changed firms, things didn't change. All law firms of any significant size in NYC had a sufficient supply of notaries, and I continued to make use of them.

Sooner or later, however, I made the transition from a large or medium-size law firm down to the level of the individual practitioner, working out of an office smaller than the file room in a typical major law firm.

Let's look for a moment the circumstances under which notary publics are needed by a litigating lawyer. Litigators learn quickly enough how to pace themselves, to be able to get a job done at the time that it is required to be done. As you can imagine, litigation has deadlines which have to be met, and if they are not met, millions of dollars can be lost by a default of the attorney. These deadlines are serious business, and I spend more than an hour each day attending to my deadlines, calendars, and related matters. I and most other lawyers try not to miss a deadline.

What is worse, almost everything big that we do has a deadline, so that we race from one deadline to another, until we retire or die.

Let's say that this is Monday, at 10:00 a.m. and I have to respond to a motion in state court, to be filed in court no later than by 5:00 p.m. I know that I need a memorandum of law and at least one affidavit, so I start working on the affidavit to put my facts in order (which affidavit I am going to sign, thankfully, so I don't have to worry about the client getting to my office in time to sign the affidavit). I finish the draft of the affidavit by 11:30 a.m.

Then, I start working on the memorandum of law, and do some research using Westlaw or Lexis, and finally have a draft memorandum by 2:30.

Now, I go back to the affidavit, add some things I included in the memorandum, which have to also be in the affidavit, and get the affidavit ready for signature. The time is now 3:15. I (or someone on my behalf) has to leave the office by 4:15 to ensure that the papers arrive in court downtown by 5:00 p.m. at the latest.

I'm getting a little worried. But the memorandum goes quite well, and I wrap it up by 3:50 p.m., and it's ready to serve (by mail, let's assume) and to file, with affidavit of service (whoops!, I have to find a notary for this affidavit of service, as we ll as for the affidavit which opposes the motion). The time is now 3:50 p.m.

I am a notary public, but I cannot use myself to notarize my own signature. I can't use my wife to notarize my signature either, for fear that the notarization would be contested. So, I have to go outside of my office to look for a notary. Unless you are in the business of being a notary public, you really don't want persons bothering you asking if you are a notary, and in most cases you may tell persons that you don't know who is a notary, just to keep away this type of business (which at one time only got paid $.25 per notarization, but now gets paid $1.00 per notarization, in New York State).

Who can I get? Also, I have to make photocopies of the notarized pages so I can have exact duplicates of the documents which I file. I can't find anyone in the building, and have to go outside to see if I can find a pharmacist, bank official, travel agenct, newsstand owner/operator or someone else who is (and is willing to act for me as) a notary public.

Finally, hopefully, I find a notary in 20 minutes, and it is now 4:10, and I race back to the office to make copies (it is now 4:20), and I finally get ready to leave the office at 4:20 to file the papers in court, and the telephone rings, a judge's clerk wants me to send a notice to lawyers in a different case, and by the time I get the clerk off of the telephone (which cannot be other than nicely), the time is now 4:30.

I rush out of the office, and try to catch a cab; I worry about my heart in cases like this, but in 95% or more of such cases I actually file the papers on time, and the other 5% I wing it.

But what is the cost to my practice? The notary public fee was $.25 and is now $1.00. But what are the costs to me and/or my clients? I run the risk of a default because I, as an individual practitioner, do not have a notary available to me (even thoug h I am a notary public presumably available to others); I spent an additional 40 minutes of my legal time, which should be worth $200 per hour if I charged by the hour (which I generally don't), and this means that the notarization of the three documents (i.e., the opposing affidavit, the affidavit of service for the affidavit, and the affidavit of service for the memorandum of law) cost me $166.66 in time, plus $3.00 in notary fees. Either I or my client absorbs this $169.66 unnecessary cost. What about the unnecessary wear and tear on my heart? Who is going to pay for a heart attack which could be caused by this unnec essary pressure in an already pressure-cooker litigation atmosphere?

Well, here is the simple solution. Adopt the federal court document called the Declaration, which can be used by anyone, whether lawyer, client or witness, to swear to facts set forth therein under oath, and subject to the penalties of perjury. No notary public is used. The declarant merely signs the declaration and it has the effect of an affidavit sworn to before a notary public. Look at the form of declaration below, in Appendix A - The Declaration. The statutory basis for the federal declaration is contained in 28 U.S.C. Section 1746. See Appendix A - The Declaration below for the text of this statute.

The declaration works well in federal court. Nobody misses the notary public. Some forward looking court reporters are even using the declaration in deposition transcripts, so that the witness merely signs a declaration (prepared by the court reporter) and doesn't therefor have to go before a notary public.

Also, I have never heard of a notary public being called to testify as to the events surrounding a notarial transaction, and if it does occur from time to time, it is doubtful that the notary will be able to remember very much.

In summary, let's get rid of the notary public as a requirement for filing sworn testimony in all state courts, and use the federal declaration instead. The few times in which a notary might be helpful in the justice system is far outweighed by the costs and other burdens for many persons like my clients and myself trying to obtain or provide justice.

This would be one small but important way to make life a little easier for the individual practitioner.

Appendix A - The Declaration

JOHN SMITH hereby declares, pursuant to the penalties of perjury under 28 U.S.C. <185> 1746, that the following statements are true and correct:

1. I am one of the plaintiffs in this action, am fully familiar with the facts stated herein, and make this declaration in opposition to the defendants' motion for summary judgment.

2. [insert factual paragraphs]

24. I urge that this Court deny defendants' motion for summary judgment and permit this case to go to trial.

I declare under penalty of perjury that the foregoing is true and correct. Executed on March 22, 1995.


John Smith

28 U.S.C. Section 1746 Unsworn declarations under penalty of perjury

Wherever, under any law of the United States or any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(2) If executed within the United States, its territories, possessions, or commonwealths: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

Copyright © 1995 by Carl E. Person. Permission is given for non-commercial users to send a copy of the data processing file for this work by electronic means to a specific individual for his or her own use, and the n only if the entire file is sent, including this copyright notice, but no permission is given for anyone to copy or transmit this file for or to any person for public viewing or downloading. It is intended by the author of this work that the work shall be made available in electronic form only through LawMall (tm).