What’s Equivalent to a Handwriting Expert for E-Signatures?

Any debate over the validity of e-signatures is silly. Of course e-signatures are valid. You can agree to a contract with any clear manifestation of intent.

Party of the first part: If you agree to be bound by this contract, give me a wink and a nod. Party of the second part: <winks and nods> Party of the first part: Done. Judge: All good.

The hard part is proving someone agreed to a contract when they deny it. That, it seems to me, is when “wet” signatures have an advantage over e-signatures. You can bring in a handwriting expert to testify that the signature matches the witness’s other signatures. You can bring a pen expert to testify that the ink matches the witness’s favorite brand of pen. You can test the coffee stains on the contract for DNA.

How do you do that with an e-signature? With a proper e-signature service, you’ll get lots of circumstantial information generated by the computer on which the signature was made. Here’s what we get from HelloSign, for example.

But look closely. There’s an IP address, an email address, and some time stamps. There is no proof of who was using the computer at that IP address, or of who was logged into that email account. And if that seems unimportant to you, how many of you — not to mention your clients — share a user account on the same computer? How difficult would it be for you to sign into your spouse’s account? Or a family member’s? How often do you see Facebook posts from a friend, spouse, or someone who sat down in the computer lab to find the previous user still logged in?

I think it is a lot harder to effectively forge someone’s signature with a pen than it is to access someone else’s email account using their computer.

Does this mean e-signatures are no good? Of course not. Most of the time the debate is over the form and interpretation of the contract, not over whether someone signed it. E-signatures are perfectly fine when everyone agrees they signed the document. But in the narrow case where a party denies signing the document, I can’t see how an e-signature is equivalent — much less superior — evidence to a wet signature.

I’m not positive I’m right about this. Maybe I’m missing something. If I am wrong or missing something, or if I’m overstating the problem, I’d like to hear about it in the comments.

Featured image: “a signature and a fountain pen on yellow paper” from Shutterstock.


  1. Avatar Jeff Taylor says:

    First, did I agree to do that “procrastination” piece in March? Wow! Talk about procrastination…

    Second, I think you’re highlighting a good point regarding the viability of the signature in tested cases. And it’s certainly a flaw with e-signature programs.

    However, when you consider that the burden would shift back to the supposed signer to show that he didn’t execute the contract, I’m not sure that the signer has too strong of an argument. The issue is whether it’s more likely than not that the disputing signer signed the document. (Adobe Acrobat handles e-signatures slightly differently, so I think there’s even less of an argument with an Acrobat e-signed document.)

    You’re probably not going to get summary judgment on the “material fact” of the signature, but you’ll likely win the jury/bench trial.

  2. Avatar Andrew Clark says:

    A key point to recognize is the difference between electronic signatures, as you have referenced, versus digital signatures which can include various degrees of authentication. Digital signatures with 2 factor or greater level of authentication is absolutely more superior than wet signatures. A 2 factor digital signature includes the signatory to provide something he/she knows (e.g. a password) and something he/she has (e.g. a device inserted into the USB port). So unless a person is sharing their password and USB device, everyone can be assured with much greater confidence than a wet signature of the authentication of the signature.

  3. Avatar Anthony Dominguez says:

    Great post and interesting discussion… At Saydoc.com to mitigate this we require the signer to input a unique password to view document, then collect digital fingerprint of the browser (test how uniqueness of your browser: https://panopticlick.eff.org), IP addresses, timestamps, geo-location, and hash the eSignatures. We’re working on camera tech to photo the user when signed (w/ permission of course). But yeah, as you mentioned, it’s an edge case that someone will argue the digital signature is not authentic.

    • Avatar Sam Glover says:

      I’m not sure you can fairly characterize it as an edge case. There are basically only two reasons we sign documents: (1) to memorialize the terms we actually agreed to, and (2) to prove who actually signed it. It’s not an edge case when it’s half the reason we sign documents in the first place.

Leave a Reply