Not until legislatures allow this. But technically yes.
There are two kinds of legal tech.
One does not require the state’s approval. The other one does. And, as is usually the case with lawyers, there is a grey area.
Let’s talk about the grey area first. I met a lawyer friend at a Starbucks a few days ago. It was a networking/war story meeting just like most social situations with lawyers.
We talked about the paperless office. He said he could not be paperless because he did real estate transactions. Among other things, my friend needed to meet with clients in person to take their affidavits or statutory declarations.
Then he recalled another real estate lawyer who did all of his oaths by Skype. Apparently, there is a statutory requirement of “presence,” and the Skype lawyer interpreted it, as most modern people would, to include virtual presence. My friend had a more conservative reading of the law so he continued to meet with affiants in person. (Side note: another approach is to have clients go to their nearest commissioner/lawyer/notary and then email a copy and ship the original affidavit to the lawyer who needs it—but that may not be practical in time-sensitive real estate transactions.)
Let’s turn to first principles.
What is an affidavit? It is a written statement admissible as evidence in a transaction or a proceeding by an act of legislature.
Two ideas are at work here:
1) ritual: make affiants go through relatively elaborate and fixed steps when they make their written statements—to give a chance to reconsider to people who intend to lie or who are not sure of the truth of what they are about to sign and to discredit attempts to claim that the affiant did not know what he or she was doing when they signed the affidavit;
2) authentication: create a circle of trusted and responsible people who will administer the ritual (including ID verification) and observe the affiant to ensure the veracity of their oath (oaths are a religion-related vestige and require a holy book; for secular people, there are affirmations—but check your jurisdiction for details).
In theory, commissioners of oaths could be cross-examined on the ritual and authenticity of the oath.
The purpose of affidavit laws then is to replace, where appropriate, expensive or impossible personal testimony with the most reliable alternative: written statements made in policy-compliant circumstances as verified by a trusted party.
Software can easily meet both policy goals. Imagine a bot asking the standard commissioner ritual questions and video-recording the affiant to fix any evidence of authenticity or its lack. And it’s already possible for software to verify ID remotely. Adverse parties can examine the bot specs and the video evidence for any point they might raise in objection to the authenticity or admissibility of the affidavit.
It even sounds way more reliable and trustworthy than what some commissioners do today. Hasty client signatures on affidavits without going through the affirmation? Getting people to sign without letting them read? It’s possible with human (no matter how trusted) commissioner but unlikely with bots.
The only missing piece is the legislative recognition of robot commissioners. And it’s not just a quick amendment to the statute. The government will have to establish and audit oath-taking software standards. But potential benefits are huge. (Of course, benefits of switching to blockchains that automatically authenticate and record events are even bigger because they will make affidavits unnecessary, eliminate most disputes over facts, and automate transactions, even with real estate—but read my other articles for a discussion of that.)
This article previously appeared on Slaw.ca.
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