Friday, September 2, 2016

Part I - Affidavits Are Like Bratty Children. They need a lot of attention!

This is Part I of a two-part series on affidavits.

Not everyone appreciates the bad press that poorly constructed affidavits and jurats get.

They are the train wrecks of notarized documents.  There should be a reality show about them, plus all the notaries who cause them to be invalid because they fail to administer an oath.  

 I enjoy a good train wreck. 

On Sunday afternoons I often read legal cases and journal articles looking for good content for my blog or information that notaries need.

 Typing invalid" or "fraudulent" plus "affidavit" is guaranteed to be a fruitful search when I am browsing LexisNexis or digitized law journals.

There is always a bit of gossip waiting to be extracted because where there's a bad affidavit, there will be notaries and lawyers involved.

Affidavits Can be Bad Actors (Some of the worst!)

Think of affidavits like spoiled brats who play with matches and start fires if you take your eyes off of them. You can't miss any detail.

Watch them carefully.

Affidavits are the darlings of lawyers who like snagging the easy-to-grab low-hanging fruit that bad affidavits provide.

Lawyers use affidavits to overturn settlements and if an affidavit is provided in response to a Motion for Summary Judgment, watch out.  The affidavit is going down if it isn't perfect.

Next,  a Little Myth Busting:  Affidavits are Not Notarial Certificates 

Affidavits are notarized documents.

Many times notaries (and even notary instructors) are confused. They believe that affidavits are notarial acts just like completing a certificate of acknowledgment is a notarial act.

Affidavits are just documents that signers sign stating that they are swearing to their statements in the document. Notaries should never create affidavits for signers and they should not provide forms to customers with affidavit wording.

Affidavits aren't merely wordy notarial certificates.  Affidavit forms at an office supply store I frequented in the past didn't have a line for the signer.  I can't believe they haven't been sued.

Perhaps because affidavits have fancy words in a "preamble" at the top of the document and a  venue statement at the top as well, many people are confused and think that means the whole document is a notarial certificate.

Roger Rill of the Ohio Notary Society, here's your shout out!

Roger (who is a long-time friend and founder of the Ohio Notary Society) backed me into a corner on this topic in October 2015 about a comment I made on Facebook--it was about affidavits.  I was managing a Facebook page for a client and in an article, I had not provided a clear instruction to notaries that they must ensure that jurats were used when notarizing affidavits, not certificates of acknowledgments.

Roger and I agreed in theory about affidavits requiring the notary's execution of a jurat, but for understandable reasons, neither the client I worked for nor many notary public administrators will state unequivocally that notaries should always replace certificates of acknowledgement with jurats if the certificate is attached to an affidavit.

By definition, affidavits are 

sworn statements.

If an affidavit is a sworn statement, you just complete a jurat and administer an oath or affirmation.

Easy, right?

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