In today`s digital world, the average person doesn`t think twice before using electronic signatures. But practitioners should be more careful. The Electronic Signatures Act stipulates that signatures should not be deprived of their legal validity solely because they are electronic, which means that an electronically signed contract can be brought before the courts. However, a judge`s willingness to accept this contract depends on how the electronic document was signed. The Supreme Court passed this new rule on February 23, giving legal aid lawyers and pro bono lawyers the opportunity to serve more clients more effectively and in a more accessible way during the pandemic and beyond. The full text of the article can be found here: courts.illinois.gov/SupremeCourt/Announce/2021/022321-3.pdf. By confirming access to a specific email account and capturing an IP address, e-signature systems can bind a signer`s identity to the computer and software used in the e-signature event. In collaboration with the Circuit Court Pro Se Advisory Committee, the CBF helped draft and submit a proposal to amend the rules to the Illinois Supreme Court to address this issue. The proposal extends the use of electronic signatures to all court records and provides the same flexibility for litigants, regardless of the type of case or the way they submitted their documents. The more an electronic document can be certified, the more likely it is that a judge will accept that document as evidence in court.
However, document authentication can be a slippery slope, and some authentication measures can be so elaborate that they compromise the accessibility and convenience that have made electronic signatures so popular. So the key is to find ways to authenticate documents that are verifiable, admissible, and defensible without overwhelming the parties involved. E-signature authentication best practices include a multivariate approach that includes biometric authentication, audit protocols, and signing certificates. In fact, Tyler Newby, a partner at Fenwick & West LLP, in his article „Using E-Signatures in Court – The Value of an Audit Trail,“ does fantastic work on the value of audit trails in authenticating electronic signatures in court. Established case law shows that secure and established digital audit trails strengthen a party`s position in court with respect to wet signatures, image signatures, and less mature e-signature solutions. For more information on legal support for electronic signatures as a whole and docuSign eSignature in particular, see: Fortunately for BAMS, the trial court ruled, and the Court of Appeal agreed that the evidence confirmed that Moonwalkers had ratified the contract. The trial court noted that „the electronic track created by DocuSign provides information that would not have been available before the digital age – the ability to monitor remotely when other parties to a contract actually see it.“ A federal law, the Electronic Signatures in Global and National Commerce Act (ESIGN), and the law of almost all states (through the adoption of the Uniform Electronic Transactions Act or similar laws) provide that electronic signatures are legally enforceable as long as certain basic requirements are met. These laws require that electronically signed contracts be performed and treated in the same way as any document signed by traditional means. In other words, no contract can be declared null and void or rendered unenforceable simply because it has been signed electronically. It is always recommended to provide a signature in an electronically submitted document filed under penalty of perjury, although both of the above options are available. If there is nothing on the electronically filed document, the applicant certifies that he or she signed a printed form of the document prior to electronic filing.
(Civ. Proc. Code§ 1010.6(b)(2)(B)(i); Callus. Rules of the TC, Rule 2.257(b)(2).) And the applicant must keep the printed document with the original signature until the final decision of the case (as defined in the Government Code, § 68151 (c)). The court or any other party may require the production of the signed original. And the party to whom the complaint is addressed must make the signed original available to all other parties for inspection and reproduction within 5 days of service of the claim. (Cal. Rules of the Ct., Rule 2.257(b)(2)(B). If a document submitted electronically requires a signature under penalty of perjury, the document is considered signed by the declarant if: Practitioners should also check the local rules for the use of electronic signatures to avoid possible penalties.
In December 2016, a bankruptcy judge in the Eastern District of California imposed sanctions on a bankruptcy attorney for allowing a debtor client to use DocuSign to sign documents requiring an original signature. Referring to Mayfield, 2016 WL 3958982, No. 16-22134-D-7 (E.D. Cal. 15 July 2016). There, the bankruptcy attorney submitted various documents that the debtor had signed with DocuSign. The U.S. Trustee argued that DocuSign does not constitute an original („wet“) signature as required by applicable bankruptcy and local rules. The court highlighted its concerns that an electronic signature could be more easily falsified or placed by someone other than the debtor, which would lead to potential disputes over the validity of critical documents: „The key point is that a person`s handwritten signature is less easily falsified than any form of software-generated electronic signature, and the presence of fakes is more easily detected and proven.
» Id. at *2. A document that does not require a signature punishable by perjury is considered signed by the party that submitted the document electronically. (Civ. Proc. Code, §1010.6(b)(2)(A); Callus. Rules of the Tc., Rule 2.257(c).) A state case cited by Tyler, IO Moonwalkers, Inc.c. Bank of America even went so far as to say that the DocuSign system established an electronic information trail (send, receive, sign, verify) that was not available before the digital age and is a more credible method of providing evidence than an affidavit indicating whether an agreement was sent by mail. Electronically signed documents enjoy the same legal protection as those signed with a ballpoint pen. Nevertheless, the main concern of the majority of companies interested in electronic signatures for contracts and other important documents is whether these electronically executed documents are both legally valid and admissible in court. For an electronic signature to be admissible in court, certain criteria must be met.
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