Sunday, March 15, 2020

Remotely Swearing Witnesses

Is it a challenge to swear a remote witness in the current challenge we face?

A new reality is upon us with the threat of COVID-19. In an unprecedented quarantine effort, the government is striving to encourage us to limit our movement, interactions, and potential exposures to this novel infection threat. For several weeks, I have been reminding judges and mediators of the potential for telephonic attendance and appearance in our proceedings. More recently, I have been encouraging OJCC customers to remember the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications. A brief post on those was published about a week ago

On March 14, 2020, the OJCC moved to mandatory telephonic appearance for the next two weeks. That action is parallel to the unprecedented decision in that regard by the Florida Courts on Friday. Travel presents risks, it always has. There is a preference for in-person appearance at both mediation and hearings. That preference has arguments for and against, and the paradigm has long been defaults each way (in person and telephonic) with discretion for changes in the mediator her or himself. We expect to return to that paradigm following this viral situation. 

One of the issues that has arisen, relative to telephonic hearings, is the swearing of witnesses. This comes to us in two forms. First, a witness may need to be sworn for hearing, but is not in the presences of the judge. Second, as some telecommute from home and others are limiting their exposure to people, there will be some need in depositions for a witness to be sworn. As a practical matter, some may be unwilling for a court reporter or notary to enter their home or even office at this time. Thus, swearing the witness may be a challenge.

For the hearing, there is a simple solution. The Rules empower the judge to conduct proceedings by telephone, and to administer the oath of a witness over the telephone. 60Q6.116(4). There are those who raise concerns about the identity of the witness being verified, credibility of witnesses being evaluated, and those are certainly worthy of consideration and evaluation in any case. 

As to the identity of the witness, it may be of particular concern in the unrepresented settlement situation. A worker may have striven with an adjuster or risk manager to settle a case, The section 440.20(11)(a) or (b) "joint petition" is submitted for review. There is a need for a hearing through which the assigned judge can reach factual findings regarding that settlement. It is common for the assigned judge to require that the worker either present in the district office or in the presence of a notary to be sworn. This is a method to verify that the person delivering the testimony is in fact the injured worker in that particular case. 

This is not an instance in which the judge cannot administer the oath telephonically, but merely an instance in which some are reluctant to do so. That is certainly within the discretion of the assigned judge, but in the time of COVID-19 it may present logistical challenges for some. 

As to the deposition, the challenge seems more onerous to some. I have had contact from attorneys who accuse others of "not playing nice." They assert that some attorneys are perceived as seeking procedural advantage in the current situation. They accuse attorneys of making telephonic deposition appearance from home challenging by asserting a court reporter or notary must present at the witness' home for the swearing. 

First, the real solution this is a stipulation and good faith. If there is no real issue of a witness' identity, the parties are free to enter a stipulation to the administration of an oath over the telephone. Citrus World, Inc. v. Mullins, 704 So. 2d 128 (Fla. 1 DCA 1997). Of course, stipulations may be avoided in certain settings. See Jacobs v. Volker Stevin Constr., 609 So.2d 132, 133 (Fla. 1st DCA 1992); Gus Stephens Drywall v. Durr, 569 So.2d 844, 845 (Fla. 1st DCA 1990).

Second, however, the problem presented by this telecommuting or isolated witness was solved by The Florida Legislature in the 2019 session, Its solution is equally valid for both the remote/isolated deposition witness and the unrepresented settlement situations. The legislative proposal was House Bill 409, which is discussed in last June's Electronic Legal Documents. The bill altered the authority of notaries in Florida, amending Chapter 117. 

A Notary Public may administer oaths in Florida. That has not changed. See section 117.03. What changed in 2019 is the addition of a second section to Chapter 117. Section 117.05 defines the necessity of verification of a witness' identity, and even includes a list of documents upon which the notary may rely in such verification. See section 117.05(5)(b)2. This section now specifically contemplates and provides "In the case of an online notarization." Yes, notarization can be accomplished over the internet, as well as the "in person" to which we are all historically acquainted. Some notaries are already qualified and set-up to perform this function. 

Part II of Chapter 117 was added in 2019. It is titled "Online Notarizations." This means that to “Appear before,” “before,” or “in the presence of” a notary now includes "Outside of the physical presence of another person, but able to see, hear, and communicate with the person by means of audio-video communication technology." Section 117.201(1)(b). Thus, the identity of a remote witness can be verified by a licensed online notary through an examination via webcam of identification documents, just as those documents could be examined by the notary (or certainly the presiding judge) in person. The paradigm of personal presence remains, but the new Part II adds a new alternative. 

For clarity, 
"If a notarial act requires a principal to appear before or in the presence of the online notary public, the principal may appear before the online notary public by means of audio-video communication technology that meets the requirements of this part and any rules adopted by the Department of State pursuant to s. 117.295." Section 117.209(2).
Thus, there is no reason that a witness must have another person visit their office or home. Any witness can be validly sworn by a notary with the aid of a webcam and the Internet. Will there be expense associated with that effort, likely so. If there is some reason to require such formality and effort, then parties should know of and engage this process. I return, however, to the better process of stipulation when there is not a good faith reason for requiring proof of a witnesses' identity or the administration of oath in this manner. In most cases, it will be more appropriate for the professionals to stipulate to a court reporter administering the witness' oath telephonically. 

These are challenging times. People are in quarantine, they are stressed, and stressors may accumulate. This last week, the Florida Commissioner of Education has mandated the closure of schools for a week (in addition to the impending spring break for which many were already prepared). Parents are suddenly and unexpectedly providing child care. There are those in our community who are providing care, or merely looking in on and shopping for, older family members at risk of infection. The fact is, none of us truly knows the challenges that others in our community may face. 

Now is not the time for procedural advantage or gamesmanship. Today is the day of professionalism and cooperation. If there is a genuine dispute regarding identity, solve it with remote notarization or swearing as the law allows. If there is no genuine dispute, enter a stipulation and get to the merits of the matter. In the course of our disagreements, let us remain true to our collective goal of not being disagreeable. Remember, we must be accommodating, for one day we might ourselves need accommodation. 

I am persistently impressed by the professionalism of practitioners in Florida. I am convinced that this state, and our workers' compensation community specifically, is blessed with some of the very best attorneys anywhere. Their intellect, imagination, and expertise are boundless. In this time of challenge and stress, they will rise to the call and persevere in zealously representing their clients. They will, however, cooperate with each other, accommodate each other, and this community will come through the threat. I know that because I have seen them. I know of their professionalism and collegiality. I trust in it, revel in it, and am thankful for it.