Is it Time for Electronic Filings of Legal Documents?

With the proliferation of electronic filing of legal documents and legal Pleadings it is not difficult to imagine that electronic signing is gaining in popularity as well.

What exactly is electronic signing or E-sign? Perhaps electronic signing can best be described by what it is NOT. Specifically, electronic signing is an individual affirming the acceptance and execution of a legal document by means of ANY electronic method as opposed to the execution and affirmation “in person” or a live “wet” signature.

Technology has progressed so far in the last 10 years it has made electronic signing much more common and an accepted practice and an even required practice in many circumstances and European countries.

Definitions:

• “Electronic Signature”, means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
• “Electronic Record”, means a record created, generated, sent, communicated, received, or stored by electronic means.
• “Electronic Agent”, means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.
• “Electronic”, means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

Historically speaking, a persons’ signature on a legal document meant that the individual could be held liable and be legally bound by the actual event of signing or execution of the document in person. Much effort, detail and sometimes costly travel would occur to insure that original signatures of authorized parties were obtained.

The rationale behind an original signature is to insure that the executed document could hold up to legal scrutiny and be enforced in a Court of Law.

Currently and historically, most states require legal documents, utilized to buy and/or sell or mortgage or in any manner designed to affect real property, be executed in front of a Notary Public. This is to insure that the signatures obtained are authentic and original to prevent fraud wherever possible.

Generally any legal document that will affect real property will need to be in a “recordable format” which means it was executed or signed in person in front of a Notary Public. With the proliferation of electronic filing and electronic signing here to stay the notary system may well be under attack as well.