Sunday, December 17, 2017

What is a Signature?

What is a "signature," and why would it matter? There are various documents in Florida workers' compensation that must be signed. Signing is mentioned in 60Q-6.102(6), 60Q-6.103, 60Q-6.106(3), 60Q-6.110(5), 60Q-6.113(2), 60Q-6.123(1)(a) and (2)(e), and 60Q-6.124(1). But what does "signature" mean? I have spent a lifetime working in this practice of workers' compensation. I have spent a great deal of time reading, researching, writing, trying cases, hearing cases, and preparing orders. But, the question of what "signature" means never really occurred to me. 

The Florida Rules do define "electronic signature." That is, what is an electronic substitute for signature. Rule 60Q-6.102(6) provides:
(6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is deemed to be the legal equivalent of the e-JCC user’s handwritten signature.
This allows an attorney to "sign" a document without a pen, pencil or stylus, simply by typing a name. No witnesses or notary required. An attorney types their name and the document is "signed."

Recently, the issue of defining "signature" has arisen in the context of documents people must sign to effectuate contracts in a broad sense, and in Florida workers' compensation cases. There are commercial services that are being engaged to facilitate interactions on behalf of law firms. These services digitally interact with someone, the injured worker or witnesses, and through that remote digital process the service provider documents the person's assent to some document and places an "electronic signature" on a document or pleading. Documents are reviewed, and electronically "signed."

This may seem new to legal practitioners, in the "silo" of their legal experience. Silos are lamented in business, describing how a person in one department or operation becomes familiar with only those operations, and disregards the needs or processes of some other department. However, those same legal practitioners are very likely consistently engaging with similar "signature" services themselves. Legal contracts are being made every moment by people who never "sign" their name in the classic "pen and paper" sense. They just click.

Anyone that has ever installed or updated software, used I-tunes or Pandora, made a purchase from Amazon or WalMart online, or booked a trip on Amazon or Priceline, has likely clicked on a button like these. These buttons have become ubiquitous on the Internet. A recent decision regarding the interactions between buyer and seller on E-Bay illustrates that these "clicks" have legal consequences. Clicking "I accept," or similar buttons on the Internet can form contracts.

One might expect that the meaning of "signature" and signing has long since been resolved. And, that is why the subject perhaps arises so infrequently. In fact, it was not until 1965 that the Florida Supreme Court addressed the meaning of "signature." For 120 years, Florida existed as a state before the subject apparently came up. And, Williams (below) was decided at about the same time that Al Gore invented the Internet in 1962 (at the age of 14), and thus created the various electronic issues and the "accept" and "agree" buttons. 

In December 1965, the Court decided In re Williams' Estate, 182 So.2d 10 (Fla. 1965). This interprets a specific statute on probate, that has nothing to do with workers' compensation. It is important to remember that statutory interpretation is dependent upon the words of the particular statute. So, arguments may be made that similar language in another statute might be similarly interpreted, but if the language is not identical, a different interpretation is also possible. The interpretation depend on what the specific statute actually says. However, Williams may nonetheless be instructive on the meaning of "signature" in Florida. 

The parties in Williams argued over a will, and a judge refused to admit it to probate because it was "signed by the testator with a mark, similar to an X." One party claimed this "X" was a "signature," and the other party claimed "the making of a mark was not sufficient." The statute at issue was section 732.07 Fla. Stat. which required wills to be written and that the "testator must sign," or someone else could sign that person's name "in his presence and by his direction must subscribe the name." 

The Court struggled to find meaning in the statute, and concluded that "nothing in the statute itself" helped the Court decide between the two parties' differing interpretations and arguments. The Court was "surprised" to find that the issue had not arisen before in probate, though it acknowledged a similar dispute regarding a witness signing a deed, which previously allowed the "X" in that context.

The Court examined an earlier Alabama decision for guidance. That interpretation of "signature" edified the Court that the English word "signum (from which our word "sign" is derived) meant no more than a mark." It noted that the "prevailing view in this country" was to give effect to the "X," and not to require signing the "alphabetical name." So, the Florida Court concluded that the person could execute the will by making the mark instead of writing the alphabetic name. 

There was discussion of the potential for fraud from such an interpretation. The Court conceded that even a handwriting expert might be hard pressed to distinguish one "X" from another. But, the Court noted that the proof of execution did not rest "entirely upon the identification of the mark or signature," because there was also a requirement that the signing be done "in the presence of at least two attesting witnesses." The Court's decision was not unanimous, two Justices dissented; they thought the plain meaning of the statute required "alphabetic name."

And, that returns us to the modern age, and the influence of electronics and perhaps "progress." As mentioned, there are companies that are providing notary and signing authentication services over the Internet. The signer visits a website and then uploads a copy of the document to be "signed" and an image of a government issued identification. The person's identity is verified and a video conference is started (sounds like a Facetime or Skype-like experience). So, the person verifying "sees" the signer. 

The notary then witnesses the signer "e-sign their name," which the notary then attests and certifies. This appears to be significantly similar to clicking the now ubiquitous "I accept" button so common in electronic commerce. The uploaded document is then provided to the signer and/or whomever she/he might designate (the signer's attorney, or whomever may have prepared the document). The purported benefits are availability of a notary 24/7 and the lower cost than might be charged by some notary around town. There are also those whose mobility and therefore access to a local notary may be limited. There are those who champion this process, but others harbor doubts. 

Hearing of the process, I recalled the Uniform Electronic Transaction Act (UETA) Since 2000, 49 states have adopted this statute (Washington state is alone in not; you know, the home state of Microsoft). Florida was an early adopter of the UETA, which is now Section 668.50, Fla. Stat. That law defined "electronic signature" a bit differently than the Rules of Procedure for Workers' Compensation Adjudications. The Rules, in 60-Q6.102(6) establishes a graphic representation of signature (above). The statute defines it more broadly as:
(h) “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.
The UETA specifically does not apply to "a transaction to the extent" it is governed by "rules relating to judicial procedure." Thus, it is arguably not applicable to proceedings in this tribunal. But, it is intended to affect transactions when all participating parties have agreed "to conduct a transaction by electronic means." And, the law provides that "A record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form." 

Thus, a Florida contract cannot generally be denied legal effect "solely because the record or signature is in electronic form." Furthermore, the law specifically says that "if a provision of law requires a record to be in writing, an electronic record satisfies such provision," and similarly, "if a provision of law requires a signature, an electronic signature satisfies such provision." Thus, there is perhaps room for debate regarding if such an electronic signature can or should be denied effect before this tribunal.

And, critical to this discussion, the Act specifically contemplates notarizing signatures. 
(a) If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized by applicable law to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record. Neither a rubber stamp nor an impression type seal is required for an electronic notarization.
It might therefore seem that the legislative drafters thought of all contingencies. But, there is always the potential that something was overlooked. The question is whether an injured worker, or other Florida workers' compensation participant or witness, can utilize such a service to notarize an electronic signature. Certainly, there seem to be conveniences and cost savings from electronic signature. However, are there also risks?

Some might argue that Florida workers' compensation proceedings are governed by "rules relating to judicial procedure," and therefore not subject to the provisions of section 668.50. Others will perhaps argue that those judicial procedure rules (Chapter 60Q) do not address electronic signature of documents in this context, and thus this signature practice is not governed by such rules (though perhaps the Rules could address such issues). They might argue that if workers' compensation is to be different than the UETA, then the rules would clearly say so. 

Some would no doubt raise the fact that "a settlement agreement" is "governed by contract law." Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. 1st DCA 2006). They might suggest that if parties can execute contracts all day long on E-bay, Amazon, WalMart and more, with the click of "I agree," and that perhaps it is logical that other contracts such as workers' compensation settlements could be completed with a similar electronic signature?

Others may note that in litigation, signatures bind parties and their attorneys. And, in Florida workers' compensation, the letter "s/" followed by a typewritten name "is deemed to be the legal equivalent of the e-JCC user’s handwritten signature." 60Q-6.102(6). That rule seems perhaps to run the risk that someone could type and thus "sign" another's name. There might seem to be risks of identity verification and authenticity. And yet, after years of allowing this substitute for the handwritten, "alphabetic signature," can anyone cite an instance of impersonation or forgery?

Some may argue that this digital signature issue is really one for the parties to a case. The Court reminded us in Citrus World, Inc. v. Mullins, 704 So.2d 128 (Fla. 1st DCA 1997) that the statute may have dictates (admission of physician opinions), but that the parties to a case may stipulate. When the parties stipulate, those agreements are "normally binding." The Court says "that it is the policy of law to encourage and uphold stipulations." So, despite any feeling that a process (notary or signing) is or is not legally sufficient, one might validly ask "have the parties to the case stipulated that it is valid?" In the face of such a stipulation, should the judicial process inquire further?

It may be that some are not ready to accept the digital signature. They may doubt the legal sufficiency, or harbor concerns about mistake or misrepresentation. What if the person "signing" is in fact not actually the person that they say they are? That is a seemingly valid concern. If a worker is waiving all future benefits, it is imperative that they do so knowingly and willingly. It is also therefore important that the person signing the paper is actually the person otherwise entitled to the benefits.

But, is that more easily discernible or verifiable in person? Perhaps.  Can someone commit forgery in the presence of a notary public somewhere, in person? That has happened. Is it less likely to occur in person than electronically? Or, perhaps we are just more comfortable believing that in-person verification is more sure because that is a paradigm to which we have adjusted over a lifetime of experiences?

In other words, it is possible that we may fear "electronic" signing merely because it is different. Recently, in North Carolina Practice of Law, I noted there are perils in both "change for the sake of change" and in "fear of change." But, change is inevitable. The world around us is evolving, and technology is undeniably a significant influence on us all. Technology will change our lives, not an "if" but a "when." It was not that long ago that I was assured by a venerable attorney that this "e-filing fad won't last." 

I would therefore suggest that an entire industry of online sales (Amazon, WalMart, Priceline, e-Bay and more) is thriving on the "I accept" button. Contracts are being made every second of every day, and rely upon a signature that is a click of a button. Courts are enforcing those contracts, effectuating those signatures. To suggest that a document "cannot" be signed in the same manner is perhaps akin to suggesting that an "X" cannot be a signature. The "X" was given effect, because there were other assurances (witnesses) and similarly the signatures described above are "witnessed" over a video call. Is it the same? Is it similarly effective in instilling confidence?

And, in the end, it is critical that these are musings. The issue, of course, is whether the particular assigned judge finds validity in the e-signature or e-notary process. Has the judge been informed sufficiently by the parties about the process? Is there sufficient demonstration of the process providing assurance of assent and/or identity? Is the process stipulated by the parties? Those are all issues for the trial judge to decide. Everyone should remember that judges make decisions based on what the parties to a case provide. Are the parties providing sufficient information to inform the judge and convince her/him of the parties' advocated course?

These issues for the trial judge are undoubtedly challenging. And, in the age of rapidly changing technology they will be issues that may likely become increasingly frequent. 

Rule provisions with "signature" or "sign."

60Q-6.102 Definitions.

(6) “Electronic signature” means that a graphic version of the e-JCC user’s signature or “s/” followed by the e-JCC user’s typewritten name is deemed to be the legal equivalent of the e-JCC user’s handwritten signature.

60Q-6.103 Pleadings and Proposed Orders.
(1) Pleadings. All documents filed with the OJCC shall:
(c) Contain the signature, or the electronic signature if filed electronically, of the party in interest or, if represented, the party’s attorney of record;

60Q-6.106 Consolidation and Venue.
(3) A motion to change venue shall be filed with the judge and shall contain the signature of the moving party, or, if represented, the party’s attorney of record.

60Q-6.110 Mediation, Generally.
(5) . . .The appearance of an attorney for a party does not dispense with the required attendance of the party. No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.
(b) Any person attending mediation telephonically shall provide an e-mail address for use in exchanging documents during the mediation unless good cause is shown to the mediator at least five days prior to the mediation. Any mediation attended telephonically is not concluded until the signed report is returned to the mediator. The signed report shall be returned by the end of the business day unless excused by the mediator.

60Q-6.113 Pretrial Procedure.
(2) . . . The judge may excuse any party who has complied with filing their completed and signed portion of the pretrial stipulation from live or telephonic attendance at the pretrial hearing. The judge may cancel the pretrial hearing if the stipulation is timely filed. In pretrial stipulations and at any pretrial hearing, the parties shall:

60Q-6.123 Settlements Under Section 440.20(11), Florida Statutes.
(1)(a) When a joint petition signed by the parties is filed pursuant to Section 440.20(11)(a) or (b), F.S., it shall be accompanied by:
(2) (e) . . . it shall be signed by the claimant and the claimant’s attorney, furnished to all other parties, and contain:

60Q-6.124 Payment of Attorney’s Fees and Costs Other Than Pursuant to Section 440.20(11), Florida Statutes.
(1) . . . include a statement that claimant’s counsel has not previously secured or received a fee on the benefits for which a fee is now being sought, the claimant’s signature, and an attorney’s fee data sheet setting forth the benefits secured by claimant’s counsel and the value of the benefits.