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How To Impress Judges And Juries In A Notary Case

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(Originally published in the November 2019 issue of The National Notary magazine.)

After serving many years as an expert consultant and witness for lawsuits involving Notaries, I have seen what steps convince judges and juries that the Notary acted properly. Following these steps is highly valuable if you are ever called into court over a notarization and will also impress commissioning officials and hearing officers should you ever have to defend yourself in a discipline investigation.

Judges and juries like to see Notaries have gone above and beyond the lowest standards of notarial performance. The real Notary standouts who successfully get lawsuits dismissed against them are Notaries who do more than the bare minimum required by state law.

Steps That Exceed Minimum Requirements

Obviously, no Notary wants to be accused of negligence or defend themselves in a notarization lawsuit or disciplinary hearing. But the fact is that such suits and discipline charges happen. If it does, here are basic steps every Notary can take. These steps will not only help you stay out of trouble in the first place, they clearly demonstrate your ethical and professional conduct to any judges, commissioning officials, hearing officers, and juries if you become involved in a legal proceeding.

What are those important basic steps? Here are the five best things a Notary can do to impress officials and juries in a legal proceeding:

1. Voluntarily seek out Notary training and continuing Notary education.

2. Learn and follow Notary best practices.

3. Create a detailed journal entry for each notarization.

4. Secure and preserve your Notary journal for future use.

5. Proofread your journal entries and certificates before completing each notarization.

Basic And Continuing Notary Education

Only a few jurisdictions require applicants to take training classes as a prerequisite for becoming a Notary, and very few jurisdictions require any form of continuing education even when renewing a Notary commission. Hence, judges, commissioning officials, hearing officers, and juries will be impressed if they learn that a Notary has made the effort to take classes voluntarily and refreshes their knowledge regularly with continuing Notary education.

There are numerous opportunities for Notaries to seek out basic and continuing education. Such education programs are widely available in both live and online formats at affordable costs. Of course, it should also be emphasized that Notary education is the very best way to avoid the errors, omissions, and wrongdoing that lead to Notaries appearing in lawsuits and disciplinary hearings in the first place.

Abiding By Notary Best Practices

Notary statutes never cover every possible situation. They leave a lot unsaid about what Notaries are supposed to do in certain scenarios. This is where Notary best practices come into play.

Best practices are those methods which are generally considered to be correct and reasonable, which have proven themselves to be effective over long periods of time, and which are followed by thoughtful and experienced practitioners. Savvy Notaries will become familiar with best practices and utilize those practices whenever they perform notarizations. 

Judges and juries are impressed when they are shown Notaries made the effort to learn what best practices should be followed and followed those best practices to even when there are gaps in Notary statutes.

Highly Detailed Journal Entries

Most jurisdictions do not require their Notaries to maintain journals, and few require journal entries to be highly detailed. Yet the more detailed the journal entry, the more impressed judges and juries will be with the meticulous Notary who prepared it.

I suggest that Notaries complete every space or column for each journal entry. In addition to the usual elements about the notarization required to be entered in the journal such as the date and time of the notarization, the Notary should also record the place where the notarization was conducted, the starting time and time the notarization was completed, the names and contact information for all persons other than the signer present at the notarization, the telephone number and/or email address of the signer, anything out of the ordinary about the notarization (if something of that kind occurs), any concerns about the signer or the notarization (if something of that sort is observed), or any other information the Notary wants to be sure to remember.

Every one of the details above has been important in one or more of the cases I have been consulted about over the years. You never know what tidbit may become valuable information later on — so err on the side of recording more information than you need. It will impress judges and others deciding the Notary’s fate if the Notary shows a pattern of diligence and prudence by recording extra relevant data about the notarization and the signer.

Use Your Entire Notary Journal To Show Good Habits

If a Notary must appear in a lawsuit or disciplinary hearing to defend against a claim of negligence, all of the Notary’s journals and journal entries will be reviewed by the judge or other officials deciding the case. It is not just the entry for the notarization being challenged that will be entered into evidence.

This is so important that it needs to be repeated. All of the Notary’s journals, and all of the entries in those journals, will be reviewed by the people deciding the Notary’s fate.

I once testified as an expert witness in a trial in which the Notary had been accused of negligence and fraud. Over several years, she had filled five journals with entries for more than 1,200 notarizations. She had filled every space for each entry and had even obtained thumbprints for every signer. It was remarkable. I was asked to testify about what I had observed regarding her performance and thoroughness in doing so, and I concluded she had acted reasonably and had not committed fraud. She won the case. I did not win it for her; she won it by setting the stage for me to be able to draw the favorable conclusions that I expressed.

Notaries should think of the journal as their opportunity to build a written collection of evidence of diligent and thorough notarizations. It is one thing for a Notary to orally claim to be diligent and thorough, but it is a much stronger and more persuasive statement for a Notary to have a long-term, consistent, objective written history of such diligence and prudence.

Benefits Of Proofreading 

Savvy Notaries get two chances to perform a notarization correctly — the first time when the Notary creates a journal entry and completes a notarial certificate, and the second time when the Notary proofreads the journal entry and certificate and makes any needed corrections before the notarization is completed.

No Notary laws anywhere require Notaries to proofread their journal entries and certificates. However, judges, commissioning officials, hearing officers, and juries will be quite impressed if Notaries are prudent enough to do so. It’s an extra, commonsense step to take that shows Notaries care about their official duties.

Final Thoughts About The Standard Of Reasonable Care

The good news for Notaries is the five steps suggested above virtually assure that Notaries can prove they performed their duties with reasonable care and can demonstrate it with the detailed information in their Notary journals. Under the law, if Notaries have exercised reasonable care, they will not be held liable even if they have made errors or omissions in notarizations which have caused financial injuries to other parties. In other words, Notaries are not required to perform perfectly, but rather prudently and reasonably.

Guess who decides whether Notaries have acted with reasonable care? The very same judges, commissioning officials, hearing officers, and juries who are impressed that Notaries that go above and beyond the lowest common denominator of performance — that is, the Notaries who take the five extra steps described above.

Michael Closen is Professor Emeritus at the John Marshall Law School in Chicago, Illinois. A respected consultant on model Notary statutes and legislation, Closen served on the drafting committees for The Notary Public Code of Professional Responsibility and various editions of the Model Notary Act, and recently authored the book, Professor Closen’s Notary Best Practices: Expert's Guide to Notarization of Documents

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