With limited physical access to banks, courts and many law offices during the COVID-19 crisis, the practice of law is less “face to face” than ever before. Zoom meetings, online depositions and even virtual trials have become customary. Courts are even allowing witness to be sworn in remotely. But one area of law still seems to require a face-to-face meeting: notarizing legal documents. These days, a last-minute need for sworn interrogatory responses, an affidavit in support of a motion or verification of a complaint can prove challenging to counsel and client.
Users of electronic signature applications like DocuSign have increased exponentially. However, some companies, clients and even counsel remain hesitant to embrace the technology or perceive it as too burdensome. Fortunately, in many cases, Florida Statutes section 92.525 provides a viable alternative to traditional “in person” notarization or electronically verified signatures.
In addition to setting forth the requirements for traditional “under oath” verification before a notary, Florida Statutes section 92.525(1)(c) authorizes the verification of a document by the mere unilateral signing of a specified written declaration by a witness. For a written declaration to qualify under the statute, it must contain the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration. Fla. Stat. § 92.525(2). When a verification on “information or belief” is permitted, it should contain the additional phrase “to the best of my knowledge and belief.” Id. Further, the written declaration must be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. Id.
Although many practicing lawyers, and even some judges, are unaware of the options provided by Florida Statutes section 92.525, its plain language allows the use of a declaration instead of an affidavit in many situations. While this statute is frequently discussed in the criminal law context, many civil cases have recognized its use instead of the more familiar affidavit. For example, J.S.L. Const. Co. v. Levy held that a non-notarized declaration that complied with the statute satisfied the statutory requirement for a “statement under oath” in the context of a construction lien. J.S.L. Const. Co. v. Levy, 994 So.2d 394, 398- 99 (Fla. 3d DCA 2008).
Additionally, the court in Mieles v. South Miami Hospital reached the same conclusion. Mieles v. South Miami Hospital, 659 So.2d 1265, 1266 (Fla. 3d DCA 1995). In Mieles, the trial court dismissed Mieles’ complaint when Mieles’ medical expert submitted a timely, but non-notarized medical opinion. Id. at 1266. Florida Statutes section 766.203 requires that during a presuit investigation, a claimant must submit a verified, written, medical expert opinion corroborating reasonable grounds to initiate medical negligence litigation. Id. The appellate court reversed, holding that since the statute required “verification” and made no mention of “notarization,” a declaration in compliance with Florida Statutes section 92.525 sufficed. Id.
A similar procedure permits sworn, non-notarized declarations in federal practice. In PetMed Express, Inc.
- MedPets.Com, Inc., 336 F.Supp.2d 1213 (S.D. Fla. 2004), the plaintiff filed a detailed declaration in support of a motion for final default judgment. A lengthy footnote explained that under 28 U.S.C. § 1746, unsworn declarations in writing and subscribed by the declarant “as true under penalty of perjury, and dated” can be treated the same as sworn affidavits. Id. at 1217 n.1. Also, on July 9, 2020, Chief Judge Caryl
- Delano of the United States Bankruptcy Court for the Middle District of Florida issued an announcement
encouraging the use of declarations under penalty of perjury instead of notarized affidavits. The announcement further recognized that “a person’s declaration under penalty of perjury, as authorized by 28 U.S.C. § 1746, is equally acceptable.”
Even though these declarations are legally permitted most of the time in state and federal court, some situations continue to require an “affidavit.” For example, Florida Statutes section 732.503 requires a self- proving will (meaning that the witnesses don’t need to appear before a court to attest to the will’s authenticity) must include affidavits by the witnesses signed before a notary with all parties present. In such instances, the risk of forgery is deemed too high to permit a mere sworn declaration.
However, circumstances in which the identity of the declarant is unlikely to be at issue, like interrogatory responses or a statement made in support of a summary judgment motion, do not necessitate the same safeguards. The “under penalties of perjury” language of Florida Statutes section 92.525(1)(c) is deemed to have sufficient teeth to prevent false statements. Unlike situations involving an instrument, such as a will, that dispose of valuable property, a notary ordinarily would not be able to police the truth or falsehood of the underlying statements in any case. Thus, when applicable, using a declaration as an alternative to an affidavit not only provides for greater convenience, but can also accommodate individuals who are self-quarantining, wary about leaving the confines of their home, or otherwise lack access to a notary public.
The coronavirus pandemic has accelerated the need for creativity and the use of technology in every industry, especially in the practice of law. As courts are fond of reminding us, “the show must go on.” Although not high tech, a declaration in compliance with Florida Statutes section 92.525(1)(c) can save time, money, and inconvenience already present in the notarization process, which have been amplified by the present crisis.