Can you e-sign court documents?

Why the courts make their own rules

Courts weren't left without electronic signatures; they were left to write their own rules. ESIGN also confirms that agencies keep their own filing standards and formats (§ 7004(a)). UETA's uniform text lets each state add exclusions to its own act (section 3(b)), and the court systems' e-filing rules supply the detail.

Federal courts: Rule 5(d)(3)

• Lawyers file electronically. A person represented by an attorney must file electronically, unless the court allows paper for good cause or a local rule allows or requires it (Fed. R. Civ. P. 5(d)(3)(A)).
• People without a lawyer may file electronically only if a court order or local rule allows it, and can be required to only by an order or by a local rule with reasonable exceptions (5(d)(3)(B)).
• The signature is the account. A filing made through a person's electronic-filing account and authorized by that person, together with their name on a signature block, is that person's signature (5(d)(3)(C)).

That last rule covers the person who owns the account. Documents signed by someone else, such as a witness declaration or a stipulation signed by opposing counsel, are handled by each district's local rules and e-filing procedures, so read those before filing.

State courts: California as an example

California's rule 2.257 is a useful model because it spells out each case. It defines an electronic signature the same way ESIGN does: a sound, symbol or process attached to a record and adopted with intent to sign. Then it sorts documents by who signs them:

• The filer's own papers. A document that doesn't need a signature under penalty of perjury is deemed signed by the person who filed it electronically (2.257(c)(1)).
• Declarations. Someone signing under penalty of perjury may sign electronically and declare the information true and correct. If they aren't the filer, their e-signature has to be unique to them, capable of verification, under their sole control and invalidated if the data change. The alternative is a signed printed copy the filer keeps for inspection (2.257(b)).
• Other people's signatures, such as a stipulation from the other side, follow the same choice: a printed original the filer keeps, or an e-signature meeting those four tests (2.257(c)(2)).
• Judges may sign electronically in any manner the law permits (2.257(e)).

The rule also says no one has to use a certificate-based digital signature on an electronically filed document (2.257(d)). Other states organize their rules differently, but these are the questions to answer: who's signing, under oath or not, and is the signer the filer.

Documents that need a notary or an oath

Some court papers must be sworn before an officer rather than just signed: affidavits, some verifications and certain declarations in other states. Where a law requires a signature to be notarized, acknowledged, verified or made under oath, UETA lets the officer's own electronic signature satisfy it (section 11), and remote online notarization is available in many states. The officer still has to be part of the process, which a general e-signature app doesn't provide. See can you e-sign a notarized document.

What to do

1. 1

   Find the rule for your court

   Look up the court's e-filing rules and any local rules or general orders on electronic signatures.

2. 2

   Sign through the approved channel

   Use the court's e-filing system or an approved provider, from the signer's own account where the rules require it.

3. 3

   Collect third-party signatures properly

   Get a declarant's or the other side's signature in a form the rules accept, and keep any paper original they require.

4. 4

   Keep the record

   Save the filed version and any signed originals for as long as the rules or the case require.

What you can e-sign around a case

Much of a law practice's paperwork isn't a court document at all: engagement letters, fee agreements, conflict waivers, client intake forms and authorizations to release records. Settlement agreements between private parties are contracts, too, unless the court has to approve them. Those can be e-signed like any contract.

SignMaster is built for that side of the work, for law firms and anyone else. It doesn't file with courts. It sends engagement letters and settlements from templates, asks each signer to agree to sign electronically, can require an access code, and returns a signed PDF with a certificate of completion recording each signer's email, IP address and timestamps.