Depositions and Affidavits - The Basics

While notaries are familiar with taking acknowledgments and administering oaths, they often lack the necessary skills to handle depositions or affidavits.

A deposition is the sworn oral testimony of a witness or other party for a future court proceeding. It is taken before a notary or other officer authorized to administer oaths. In a deposition, an attorney typically interrogates the witness. However, prior to this interrogation, the witness must be sworn in. Similar circumstances can occur when a witness appears at a court hearing telephonically (i.e. over the telephone) and must be sworn in.

To swear in a witness, who is called a deponent in a deposition, you would ask the deponent to raise his or her right hand and then ask, Do you solemnly swear or affirm that the testimony you are about to give is the truth and nothing but the truth? As with other notarial acts, you should record the oath in your journal and notate the deponent's identification.

You should be aware that depositions are often taken telephonically, with the attorney interrogating the deponent via telephone. However, as with all other notarial acts, the deponent must be in the physical presence of the notary to be sworn in. A notary can never, under any circumstance, administer an oath or take an acknowledgment over the telephone.

Some states authorize notaries to make a transcript of the deponent's testimony. You should check with your state laws and commissioning authorities to ascertain whether or not you are authorized to do so. However, most states limit the duties of a notary at a deposition to swearing in the witness at the start of the testimony. After the deponent has been sworn in, the notary is free to leave; it is not necessary that the notary stay with the deponent for the entire deposition.

An affidavit is a written statement signed under oath. The person making the affidavit is called an affiant. When a notary takes an affidavit, he or she must administer an oath to the affiant in the manner stated in the previous section. This requires a jurat, and not an acknowledgment notarial certificate, to appear at the bottom of the affidavit. An affidavit form typically separates the notarial certificate into two parts: the preamble and the jurat. The preamble usually appears as follows:

STATE OF ________________
COUNTY OF _________________

BEFORE ME, the undersigned authority, personally appeared (name of affiant), who, being by me duly sworn, deposes and says:

The preamble is followed by a statement of facts which the affiant is swearing to. The affiant, after being given the oath or affirmation, signs the affidavit at the end of the facts being sworn to. The affiant's signature is followed by a jurat, which usually appears as follows:

Sworn to and subscribed before me this ____ day of ______________, 20_____.

You should note that the jurat in an affidavit does not require a venue (State of _____, County of ______) in this instance because the venue is already stated at the top of the affidavit form. Occasionally, document drafters will place an acknowledgment certificate, rather than a jurat, at the end of the affidavit. In this instance, the conflicting wording (being duly sworn in the preamble, and acknowledged before me at the end of the affidavit) poses a problem to the notary. It is generally not appropriate for an affidavit to contain an acknowledgment rather than a jurat.

In these instances, you should advise the affiant of the conflict and instruct him or her to contact the person who drafted the document for information on how to proceed. You cannot simply replace the certificate with a jurat unless specifically authorized to do so by the affiant or the document drafter. The only exception to this rule is in Florida. Florida laws specifically prohibit notaries from taking an acknowledgment when an oath is required, such as on an affidavit.

As always, consult your state's notary laws if you are unfamiliar or have a question about depositions, affidavits, or performing any other notarial act.

By Robert T. Koehler, a Contributing Writer with the American Association of Notaries, Inc.

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