Abraham Lincoln famously said: “As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln would have been a fan of Rule 11 agreements.
Rule 11 agreements are routinely used by attorneys to extend deadlines, maintain the status quo, or even fully resolve cases. But even the best-intentioned peacemakers may find themselves having to defend the validity of their agreements in court, and at that time, your decision to make your agreement via email may prove to be a big mistake.
Under Texas Rule of Civil Procedure 11, “no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” The “signed writing” requirement has legal foundations that date back to the time of Abraham Lincoln. In 1857, the Texas Supreme Court noted in Birdwell v. Cox:
Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the court will not enforce them. They will then speak for themselves, and the court can judge of their import, and proceed to act upon them with safety.
For over a hundred years, the “signed writing” was a piece of paper, signed by the respective counsel. But neither Abraham Lincoln nor the 1857 Texas Supreme Court had access to email, and so the trouble begins.
Fast forward to 2011. Insurance carriers for two defendants in the representative’s underlying medical malpractice case attempted to enter into a settlement. The insurance carriers claimed that an email did not satisfy the requirements of Tex. R. Civ. P. 11, but the plaintiff claimed that the email constituted acceptance of the material terms necessary to constitute a contract.
The Cunningham court first court noted:
The fact that the email is an electronic document does not prevent it from being enforceable under Rule 11 because . . . under the uniform electronic transactions act . . . ”[i]f a law requires a signature, an electronic signature satisfies the law.” Tex. Bus. & Com. Code Ann. § 322.007 (West 2016)). By statute, the term “electronic signature” means “an electronic sound, symbol, or process attached to . . . a record and executed or adopted by a person with the intent to sign the record.” Id. at § 322.002.
Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 529 (Tex. App.—Fort Worth 2011, pet denied).
So far, so good. The Cunningham court next considered whether the email included some marking executed or adopted with the intent to sign the email. The court noted:
The email does not contain a graphical representation of Grabouski’s signature, an “/s/” followed by Grabouski’s typed name, or any other symbol or mark that unequivocally indicates a signature. The email does conclude, however, with what is commonly referred to as a “signature block,” that is, a block of information beginning with Grabouski’s name followed by her contact information.
Id. at 529–30.
Not looking great. The Cunningham court then concluded:
We decline to hold that the mere sending by Grabouski of an email containing a signature block satisfies the signature requirement when no evidence suggests that the information was typed purposefully rather than generated automatically, that Grabouski intended the typing of her name to be her signature, or that the parties had previously agreed that this action would constitute a signature. Because there is no other evidence of an electronic signature, the email was not signed, and it therefore does not meet the requirements of Rule 11.
Id. at 530.
And there you have it. In simple terms, there is no Rule 11 agreement without a graphical signature or an “/s/”. In the age of ubiquitous email, the savvy attorney needs to be diligent in obtaining more than a simple email confirming the parties’ agreement. Because much to the chagrin of Abraham Lincoln, not all attorneys are peacemakers, and you need to be ready to defend the validity of your agreements under Rule 11.