Thursday, December 17, 2020

Swearing Witnesses in Florida

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 rule.

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 Attorney General.    

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 COVID-19/SARS-CoV-2.

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 expense).

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 inappropriate.

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 matter forward.

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.