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January 17, 2021

Sensitive Litigation Moment No. 1: Crystal, the Missing Notary.

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Crystal, blowing off work again--and just when you need her.

Not exciting. Just useful. In October of 1976, Congress passed a barely-noticed housekeeping addition to Title 28, the wide-ranging tome inside the U.S. Code governing federal courts, the Justice Department, jurisdiction, venue, procedure and, ultimately, virtually all types of evidence. 28 U.S.C. Section 1746 is curiously entitled "Unsworn declarations under penalty of per­jury".

It allows a federal court affiant or witness to prepare and execute a "declaration"--in lieu of a conventional affidavit--and do that without appearing before a notary. Under Section 1746, the declaration has the same force and effect of a notarized affidavit. Read the 160 word provision--but in most cases it's simple. At a minimum, the witness at the conclusion of her statement needs to do this:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

A "unsworn" declaration with the oath required by section 1746 can be used almost any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion.

Some lawyers who practice in federal courts still don't know about the existence of Section 1746, (probably because so many of us practice primarily in state courts, and we stick to comfortable state practices and folkways). I wouldn't have known about it either; a Justice Department lawyer clued me in on it 20 years ago.

Federal judges understand and accept it. It saves clients, witnesses and lawyers the time, cost and aggravation of getting client statements notarized. Your three notaries--Nadine, Crystal and Raphael the Librarian, together with their notary kits--are in the office like clockwork, except, of course, the very days you need to have them witness and notarize a document. So it's a useful and convenient provision.

Not exciting--but it is one of the few efficient, and reliable, moments anyone sees in the trial process.

[Original WAC/P? post: February 3, 2009]

Posted by JD Hull at January 17, 2021 08:31 PM


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