(concurring in part; dissenting in part). After our decision in this case, the following scenario will be played out in the courtrooms across the state:
Q You filed an affidavit in this action, did you not?
A Yes.
Q And did you sign the affidavit?
A Yes.
Q Did you sign that affidavit before a notary public?
A Yes.
Q Did you raise your right hand and swear that the contents of the affidavit were true of your own knowledge?
A No.
[ATTORNEYI Your Honor, I move to strike this witness's affidavit on the grounds that it is not sworn to as required by Kellner v. Christian.
[THE COURT] Motion granted.
Section 887.03, STATS., provides:
*535Any oath or affidavit required or authorized by law may be taken in any of the usual forms, and every person swearing, affirming or declaring in any such form shall be deemed to have been lawfully sworn.
(Emphasis added.)
In my experience, a person is "deemed to have been lawfully sworn" when he or she appears before a notary public and his or her signature is notarized. I believe the legislature has recognized that, in practice, notaries simply do not require persons who appear before them to make an oath.
According to the "usual form[ ]," a person appearing before a notary public does not swear to the affidavit but "declares]" or "acknowledge^]" the facts recited in the affidavit. As is usual, here the notary's jurat stated: "Personally came before me this 28th day of October, 1991, the above-named, - , to me known to be the person who executed the foregoing instrument and acknowledged the same." (Emphasis added.) According to Black's Law Dictionary: "To 'acknowledge' is to admit, affirm, declare, testify, avow, confess, or own as genuine." Black's Law Dictionary 23 (6th ed. 1990). Black defines the notary's "jurat" as the "Certificate of officer or person before whom writing was sworn to. In common use[,] term is employed to designate certificate of competent administering officer that writing was sworn to by person who signed it." Id. at 852.1 conclude that when a person "acknowledge [s]" an instrument before a notary public, the person intends to "declare" and "avow" the genuineness of the instrument, including the declarations made therein. If, as contended by the State, a notice of claim is not "sworn" to unless the affiant makes the formal oath prescribed by § 19.01(1) and (lm), STATS., § 887.03, *536STATS., is unnecessary. That statute is written in the disjunctive; it applies to an "oath or affidavit." (Emphasis added.) How the person shall make the oath or affidavit is also in the disjunctive: a person may swear, affirm, or declare as to the facts in an affidavit. Plainly, the legislature intended to allow the verification, attestation, or affirmance of a statement to be made in circumstances having an inherent trustworthiness. I therefore conclude that the notices of claim filed by Jason and his father satisfy § 893.82(5), STATS. However, Marilyn Carraway's notice of claim is insufficient. I would therefore affirm the judgment dismissing Marilyn's claim and reverse the judgment dismissing Jason's and his father's notices of claim.1
The State does not argue that Jason and his parents do not have a claim for Jason's injuries. Nor does the State argue that Jason's and his father's notices of claim do not give the State adequate notice of the circumstances surrounding Jason's injury. I do not believe that the State should deny their claim by applying to § 893.82(5), Stats., an excessively technical construction. For these reasons I respectfully dissent.
The purpose of § 893.82(5), STATS., is satisfied by the requirement of § 802.05(l)(a), STATS., that the signature of a party or an attorney to any pleading, motion or "other paper" in an action constitutes a certificate that the pleading, motion or other paper "is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law...." Because a notice of claim must be presented before a claimant may begin an action under § 893.82, I conclude that the notice is a "paper" in the action within the meaning of § 802.05(l)(a).