I have seen hundreds of Notary mistakes in my decades as an expert witness in lawsuits. And the one thing that always struck me is that virtually all mistakes could have been avoided if the Notary had done one thing: Proofread the certificate and journal entry.
This one case illustrates the price of not proofreading.
The Notary’s mistake
Acme construction company was bidding on a municipal building project and it needed to submit a sealed, written bid package that included 7 notarized documents.
An executive of Acme took the documents to a bank Notary and signed them in the Notary’s presence. The Notary performed the 7 notarizations — except that the Notary forgot to affix his official seal on the seventh certificate.
In the state in question, the law required a Notary seal to be affixed to each notarial certificate. So, 6 documents were properly notarized; only 1 was missing a seal. Incidentally, the state's law did not require Notaries to record notarial acts in a journal, but the bank Notary should have kept a journal anyway.
It turned out that Acme had submitted the lowest bid. The city clerk, however, noticed the seal was missing from the seventh document. It was too late to obtain another notarization of the seventh document, because the deadline for bid submissions had passed. Acme's bid was disqualified due to the missing seal. The Notary's mistake cost Acme about $100,000 in profits it would have earned from the construction project.
Acme sued the Notary and the bank for the $100,000 it lost. I was asked as the expert witness for my opinion. I concluded that the notarization was invalid and that the Notary and the bank were liable due to the Notary's negligent mistake. The case was settled for an undisclosed sum.
Lessons for Notaries
This case teaches a couple of important lessons.
First, state requirements are important and Notary seals are especially important. Seal impressions are critical to Notary law and tradition. Since ancient times, notarizations have been sealed, and people expect to see Notary seals on notarizations. Almost all states require Notaries to affix seals to the certificates they complete and sign, and no state prohibits the use of seals. In fact, the Notary’s signature and seal impression are the 2 most significant formalities appearing on the notarial certificate. It is likely a court in almost all states would conclude that a notarization missing either is invalid. Notaries everywhere should affix seals to their certificates, even if not required to do so by state law.
Second, proofreading your work is absolutely essential. Before concluding every notarization, the Notary should proofread every word of the journal entry and the notarial certificate (including the seal impression to verify that it has been affixed legibly). If the Notary in this case had proofread the certificate, the omission of the seal could have been discovered and remedied in time to complete a proper notarization.
In other words, a savvy Notary gets 2 chances to ensure the notarization is performed correctly: when the notarization is performed and when a Notary proofreads the certificate and journal entry.
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 Professor Closen's Notary Best Practices: Expert's Guide to Notarization of Documents.