‘Original Writing’ Rule and Handwriting Evidence: Working Through the ‘Did Not!, Did So!’ Impasse

I once represented a commercial landlord in a case where the entire dispute hinged on whether a defendant signed a lease guaranty.  We said it did; the tenant said the opposite. Further complicating things was the fact that the lease was more than ten years old and no one saw the tenant sign the lease.  We ultimately settled on the day of trial so we never got to test whether the court would accept our circumstantial signature evidence.

Multiple legal authorities applied to the dispute.  The first admissibility hurdle we faced came via the best evidence or “original writing” rule.  This venerable doctrine adopts a preference that the original of a writing be produced when the contents of that writing are at issue.  Illinois Evidence Rule 1002; Jones v. Consolidation Coal Co., 174 Ill.App.3d 38 (1988).

To introduce secondary evidence of a writing, a party must first prove prior existence of the original, its loss, destruction or unavailability; authenticity of the substitute and his own diligence in attempting to procure the original.

The best evidence rule isn’t inviolable, though.  Illinois Evidence Rule 1003 provides that a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Evidence Rule 1004 goes further and states that an original writing is not required and other evidence of a writing (or recording, or photograph) is admissible if (1) the original was lost or destroyed (but not in bad faith) (2) the original cannot be obtained via subpoena or other judicial process; (3) the original is in opponent’s possession and the opponent knew that the original would be needed at trial; or (4) the disputed document involves a collateral issue that is removed from the case’s controlling question.

Code Section 8-1501 also figured prominently in our lease guaranty dispute.  This statute (735 ILCS 5/8-1501) allows a court or jury to compare disputed signatures with known signatures and make a credibility determination as to whether a given defendant signed a contract.

While there is sparse case law interpreting this statute, 1601 South Michigan Partners v. Measuron, 271 Ill.App.3d 415 (1st Dist. 1995) stands as an interesting (though dated) case discussion of what evidence a court looks at when deciding whether a plaintiff met its burden of proving a defendant signed a contract.

In that case, also a lease dispute, the plaintiff attempted to offer the lease into evidence at trial over defendant/tenant’s objection.  The tenant claimed he never signed the lease and the plaintiff admitted not seeing the tenant sign it.  At trial, the landlord asked the court to compare the lease signature to the tenant’s admitted signature on a prior rent check.

The trial court directed a verdict for the tenant on the basis that the court was not a handwriting expert and not in a position to judge the genuineness of the lease.

Reversing, the appeals court held the plaintiff-landlord should have been allowed to introduce “lay” (non-expert) testimony that the tenant signed the lease.  Since there was evidence at trial that the tenant occupied the premises and plaintiff’s agent testified that he signed the lease and gave it to the tenant to sign, there was enough evidence to submit the signature authenticity question to the judge.

Since it was more likely than not that the tenant signed the lease based on the evidence at trial, the appeals court held that expert handwriting testimony wasn’t required and the trial court should have compared the disputed lease signature to the tenant’s signed rent check under Code Section 8-1501.

Take-aways:

In our case, we had offered multiple known signatures of the lease guarantors into evidence – including pleadings and discovery verifications filed in the case.  There was also no dispute that the defendant occupied the commercial space for several years.

Taken together, I believe this circumstantial proof of the guarantors’ signatures should have allowed the Court to compare the guaranty against defendants’ admitted signature samples and find in our favor.

 

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PaulP

Litigation attorney at Fisher Kanaris, P.C. representing businesses and individuals in all types of commercial disputes.