I have recently been educated regarding perspectives on
swearing witnesses. The COVID-19/SARS-CoV-2 pandemic has changed much that we
do in the practice of workers’ compensation law. Of course, the perspective of
this office is consistently and persistently upon the presentation of evidence,
thus admissibility. It is possible that focus is primary for attorneys also. In
those roles, we must remain conscious of the roles of other professionals, and
the rules, regulations, and statutes which direct them. Focused-forward,
collectively, on getting cases prepared and heard, various professions may face
dissimilar laws and constraints.
Additionally, in the midst of this pandemic, tempers are short,
frustrations are daily, and disagreements may arise. It is entirely possible
one might disagree with the statutory interpretation or discussions surrounding
professional limitations or authorities. However, it is never appropriate to
bully anyone into behavior that they sincerely believe to be a violation of the
law, her/his licensure, ethical responsibilities, or morals.
The 60 Q Rules
afford the parties opportunities to stipulate to the administration of the
witness oath telephonically. Rule 60Q6.116(3). This stipulation language is,
however, specific to the administration of oath “by the judge”: “parties
stipulate to administration of the oath telephonically by the judge.” In that
instance, it is the judge who would assume responsibility for the
administration of the oath.
There is also stipulation suggestion in Rule 60Q6.114(2)(b).
This rule is specific to depositions and generally requires “the oath shall be
administered in the physical presence of the witness by a notary public or
other person authorized by law.” The rule affords an exception if “the parties
stipulate to administration of the oath telephonically.” The Rule is
permissive. The Courts have noted that “it is, of course, ‘axiomatic that an administrative rule cannot . . . contravene the provisions of a statute.’” There is no telephonic oath preclusion
under the 60Q Rules; thus admissibility is not impaired by such a stipulation
and administration of oath. That rule does not, cannot, contravene or control
any statutory provision.
I now understand that rules are being cited, creating
conflict and difficulty for Florida court reporters. I understand that some of
them feel caught in the middle between her/his obligations and licensure, and this
The conflict is based upon the legality or permissibility of
administering a telephonic oath. Court reporters in Florida have the ability to
administer oath because they are notary publics, section 92.50, Fla. Stat.
Their actions are governed and controlled by the statutes regarding notaries. In
1992 Attorney General (AG) Robert Butterworth issued an Advisory
Legal Opinion (AGO-92-95). It was his opinion that a notary may not
administer an oath telephonically “to a person who is not in the presence of
the notary,” “even though the attorneys for all interested parties stipulate as
to the person’s identity.” Thus, Florida notaries believe that they are legally
precluded from administering an oath telephonically. The AG cited section
117.05, Fla. Stat. Attorneys, apparently, believe otherwise and that difference
of opinion is leading to conflicts.
The AGO expresses the purpose behind section 117.05: “the
key to a valid oath is that perjury will lie for its falsity.” Citations
omitted. The point, according to the AG is “not . . . that the officer knows
him to be the person he represents himself to be, but that he can be certainly
identified as the person who actually took the oath.” For that, the Attorney
General cited a tertiary legal authority, a legal encyclopedia. While that may
seem dubious authority to some, it is nonetheless the opinion of Florida’s
As an analogy, consider that the parties to a claim could
stipulate to any doctor providing care and treatment. However, consider the
parties stipulating to a chiropractor providing surgical removal of a lumbar
disc. Imagine the two attorneys confronted by a chiropractor explaining “I am
not permitted to perform surgery, and could lose my license for doing so.”
Certainly, no lawyer would take it upon him/herself to argue with the
chiropractor regarding her/his personal beliefs as to what the doctor can and
cannot legally do. Whether the doctor’s licensure allows her/him to perform any
specific act (surgery) is a decision for that professional.
It is suggested that the same outcome would be appropriate
if a court reporter or notary declines to administer an oath telephonically
based upon the impact such action could have upon her/his licensure.
Anecdotally, there is an allegation of a notary public who
recently administered a telephonic oath in Florida. Although the two attorneys
allegedly stipulated to this reporter doing so, one of them thereafter reported
the notary to the state. The notary reports that she was suspended for a
significant period of time, and suffered the impacts, professional and
pecuniary, of that punishment. Most of us work in order to produce income, feed
our families, etc. No one wishes to have her/his ability to earn a living
impacted by such a license suspension. It is particularly inappropriate if the
individual believes her/his action is illegal or unethical, and proceeds
forward only because someone is bullying, cajoling, or threatening them.
The solutions presented include at least seven potential
alternatives. They are presented here in order of descending probable expense.
Solution one. Arrange for the witness and court
reporter/notary to be physically in each other’s presence. This allows the
notary the full opportunity to verify the witness' identity, view her/his identification
documents if necessary, and to later attest to who actually took the oath (if
perjury is an issue). This, of course, has long been the accepted norm in
deposition testimony. However, instances of impracticality arose even before
Solution two. The parties can verify that their selected
notary/court reporter is certified pursuant to the Online Notary statute passed
in 2019 (Part II of Chapter 117).
This is complicated by some notaries’ perceptions that these provisions are focused
upon notarization of documents, and their conclusion that obtaining this
credential is expensive and time-consuming. Some notaries have also concluded
that use of this process requires both recordkeeping of the online interaction,
and engagement of an independent third-party vendor (potentially adding
Solution three. Arrange
for the witness to have access to a computer with WebCam (tacitly endorsed by (AGO-92-95).
This would allow the deposition to be taken via Zoom, WebEx, Google Meets, or
similar platform. An added advantage over a telephonic interaction is that all
parties are able to view the witness, facial expressions, and the general
atmosphere of the proceeding. The potential downside of this solution include
the cost/accessibility of hardware and the presence of accessible and
sufficient bandwidth. Furthermore, this solution may be dependent upon the Florida
Supreme Court’s emergency order regarding proceedings during the COVID pandemic
(Administrative Order SC20-16).
Solution four. The parties can arrange for, and facilitate,
the use of a (smart) telephone that allows video such as Zoom, FaceTime, etc.
That technology can be engaged at the outset to allow the notary to (1) view
the witness' identification, and two) administer the oath. (likewise tacitly
endorsed by (AGO-92-95).
A complication of this methodology is the potential a witness may lack such
video phone technology. Furthermore, this solution is also believed by some to
be similarly dependent upon the Court’s AO SC20-16.
Solution five is the least expensive, and simplest of all.
Pursuant to section 92.525, Fla. Stat. the testimony can be elicited without an
oath. The witness can then be required to read and sign the resulting
deposition transcript, which contains a specific jurat rendering the transcript
sworn in retrospect (as a document). The downside of this process is that it requires
the expense and time of transcription in instances that might not otherwise be
necessary. There is also the potential for a witness to make alterations or
changes in the transcribed testimony. A witness might likewise elect not to
sign the document.
Solution six, any attorney who wishes to may obtain a notary
license. The attorney would thus be in the position to interpret the provisions
of section 117.105, Fla. Stat. and could be individually responsible for any
consequences as a result of oath administration that was later deemed
Solution seven. Without the potential for the application of
perjury, the parties may likewise stipulate to be bound by a witness' statements despite the absence of any oath or jurat. Such a stipulation would
likely render such statement admissible at trial. Citrus World, Inc. v. Mullins,
704 So. 2d 128, 128 (Fla. 1st DCA 1997). Some attorneys may be unwilling to
proceed in this manner as it would not subject the witness to the corresponding
penalty of perjury. Of course, there remain potential repercussions regarding
such statements. Section 440.105, Fla. Stat.
It is also critical to remember that the law in our
federalist system is sometimes not consistent from state to state. That Florida
law may limit the authority of a Florida notary in a manner that Maryland’s
(strictly for example) may not. The notary engaged to administer an oath may be
bound by laws that are different (more or less restrictive) than Florida’s.
Thus, the constraints and concerns expressed here may or may not be helpful if
the witness being deposed is currently outside of Florida.
From the standpoint of the attorney, there may be a variety
of concerns or requisites. While everyone should respect those concerns, it is important
to similarly respect the concerns of a notary hired to administer an oath or to
also report a deposition. Each of these solutions presents the potential for
expense. It is likely that none of these will be seen as a or “the“ perfect
solution. However, in this time of pandemic it is really not an issue of
finding perfection. In this time, it is an issue of finding a cost-effective
(in the particular circumstance) solution by which each party may move their
It is for the attorneys to worry about procuring testimony,
addressing admission ability, and overcoming objections. For this practical
purpose, the stipulation is perhaps efficacious. Conversely, it is for the
notary public to decide what she or he may appropriately and legally do. It is
suggested that it is not the notary’s role to render advice to counsel
regarding evidentiary admissibility challenges, and likewise it is as seemingly inappropriate
for the attorneys to render the notary advice regarding the appropriateness of
various methods of oath administration.
As a practical matter, determining how and if an oath will
be administered would likely be a sound conversation topic long before the
parties are present and ready to begin a deposition. Communication, discussion,
and interaction should facilitate appropriate attainment of everyone’s goals,
within the scope of everyone’s corresponding constraints or restrictions, under
whatever state laws are applicable to a given situation. As a general proposition, conversations between counsel and other professionals are recommended throughout litigation, and all that it entails.