Why my email signature block says what it does about electronic signatures

This week an esteemed colleague said that she really liked the notice at the end of my email signature block, which says:

Unless expressly stated otherwise, this message is not intended to serve as an electronic signature nor as assent to an agreement.

I include this language in my signature block because in the right circumstances, a back-and-forth email thread can be construed as the sender’s agreement to the contractual terms and conditions being discussed in the thread, even without a wet-ink signature on a final document. This is discussed, with a couple of real-world case examples, in the Common Draft annotation on electronic signatures.

My colleague suggested that I delete the “not intended” part and make it an absolute statement: “this IS NOT an email signature.” I responded that, wearing my former-litigator hat, I thought the existing not-intended language was safer:

• If I were a judge, and I were presented with a signature block saying “this is not an electronic signature,” I might react along the lines of, hey, wait a minute, I’m the one wearing the black robe, and I’ll decide whether or not this is an electronic signature.
• On the other hand, a notice saying “this isn’t intended to be an electronic signature unless expressly stated otherwise” should be inoffensive, well-nigh incontrovertible, and perhaps dispositive of the issue.