That’s not my signature — or is it?

John, a professional fraudster who liked to game the system, had worked out a scam where he could buy products online but never pay for them. He simply disputed the credit card charges by either claiming the products never arrived or saying he’d never bought them in the first place. The items were then removed from his statement.

With free products in hand, John could either enjoy them for his own pleasure or sell them for a tidy profit elsewhere online. This kind of scam, called friendly fraud, has been on the rise as people increasingly shop online. But merchants have been catching on. One way they’re stopping fraudsters like John is to insist that the buyer sign for the product on delivery.

John knew this, so he added a new twist to the scheme. He signed when his packages were delivered but with some suspicious flourishes so that he could later deny that it was his signature. (See “What is friendly fraud? A guide for small business owners,” PayPal, Aug. 21, 2023.)

That may not be a particularly clever move on John’s part as the delivery person could identify him (or his place of residence), but this fictional case of a rare form of friendly fraud called autoforgery fits nicely with the broader theme of this column: an analysis of lesser-known frauds. (See “Types of Forged Signatures,” SQN Banking Systems.)

What is autoforgery?

The ACFE’s Fraud Examiners Manual describes an autoforgery as “a true name signature by an individual who intends to deny that signature at a later time. Generally, autoforgeries are prepared in a distorted or disguised fashion.” According to the manual, this type of fraud has been reported in traveler’s check theft cases, disputed home mortgages, credit card frauds and loan documents. (See Fraud Examiners Manual, Section 3: Investigation/Planning and Conducting a Fraud Examination/Collecting Evidence/Identifying Writings.)

The term autoforgery has unsettling beginnings. French police officer Alphonse Bertillon coined the term during the infamous 19th century trial of Alfred Dreyfus, a French officer of Jewish descent who was falsely accused of sending military secrets to the Germans. The case came to symbolize the growing antisemitism in France at the time. And Bertillon, whose methods for identifying criminals helped establish the science of fingerprinting, played a large role in convicting the innocent Dreyfus when he accused him of disguising (or autoforging) his own handwriting on notes sent to the Germans. (See “June 5, 1899 – The Dreyfus Affair,” Today in History.)

The concept of autoforgery is indeed puzzling. The Greek prefix auto-, meaning “self” or “same,” as in “autobiography,” would be an unlikely combination with -forgery, as it seems impossible to forge one’s own signature. After all, a standard working definition of forgery is the unauthorized signing of the name of another person on a legal document with an intent to defraud. [See “California Penal Code § 470 (2020).”]

Autoforgeries generally look different enough from the autoforger’s “true” signature that the autoforger has a plausible claim that someone must have signed their name without their consent.

In litigation there are two broad categories of situations in which an autoforgery issue may arise. First, a party may attempt to disavow their own signature when they’re sued on a legal instrument (contract) that they signed. Second, a party may try to disclaim after having signed a waiver or acknowledgement form when they’re the plaintiff. Herein, we discuss techniques for handling a party’s disavowal of their own signature in litigation.

Importance of party discovery

The plaintiff is unlikely to know before they initiate a lawsuit that the autoforger intends to disavow their signature. Plaintiffs will expect any number of defenses when they sue over a written contract, but generally they don’t expect the defendant to claim they never signed a contract, document or waiver. It’s therefore important to establish early in the case (through interrogatories and requests for admission and at depositions) that the signatory to the document admits that they did, in fact, sign it.

If a party claims not to have signed the key document in a case (for instance, a record, in physical or electronic form, that stated the party received a package), this is likely to become the predominant issue. Even if the entire case didn’t hinge on that document, disavowing one’s own signature is an “all or nothing” bet when it comes to credibility. If a jury thinks a person would falsely disavow their own signature, it will likely discard that person’s testimony entirely.

A plaintiff confronted with a potential autoforger should immediately retain a handwriting expert to help the plaintiff’s counsel focus on deposition and trial techniques to disprove the autoforger’s claims. In written discovery and deposition, the plaintiff’s attorney should ask the defendant who else may have had reason to forge their signature and how that signature came to be on the page if they didn’t sign it.

Refuting signature denials

Three primary categories of evidence can prove that a person’s signature on a document is genuine: (1) testimony of someone who witnessed the signing, (2) circumstantial evidence that minimizes the likelihood that anyone other than the autoforger is the signatory and (3) handwriting analysis.

Let’s examine each through the following hypothetical case: A commercial bakery sues Mr. A, the proprietor of a berry farm, after he fails to deliver a large shipment of berries pursuant to a new requirements contract.

An ideal witness would testify that they saw the signing of the document and that the signer introduced himself as Mr. A and drove a pickup with a “Mr. A’s Berry Farm” decal on the side. That witness could then identify Mr. A from a photograph. The matter would be essentially established if a jury found the witness credible. Another credible witness would be an employee or a neutral third party who’d spoken to Mr. A about his having signed, or about his intent to sign, the instrument.

Circumstantial evidence can also be powerful. For example, Mr. A’s browser history (obtained in discovery) may show that he’d researched information about the plaintiff bakery’s business model or directions to its factory. One of his vendors may have seen on Mr. A’s desk a copy of a U.S. Department of Agriculture manual regarding quality standards for produce to be sold to mass producers of food products such as the plaintiff. An hour before the signing of the contract, Mr. A may have eaten in a restaurant across the street from the office where the two parties signed the contract. While none of these items is direct evidence that Mr. A actually signed the contract, it would be a remarkable coincidence for Mr. A to have been engaging in these activities only for someone else to have forged his signature on the agreement.

A third way to prove a signature’s legitimacy is through handwriting analysis. A handwriting expert can compare examples of the individual’s handwriting, typically described in court as exemplars, to the disavowed signature and attempt to determine if each was written by the same hand.

Such handwriting analysis has generally met the Daubert standard — a legal framework that acts as a “gatekeeper” against junk science being permitted in the courtroom through expert testimony — and is usually allowed at trial. (See “Daubert Standard,” Cornell Law School.)

If the prosecuting attorney needs a handwriting expert, it’s critical to start seeking handwriting examplars early in the case. A powerful tool is the use of document requests and subpoenas to obtain evidence such as checks, loan applications and credit card transaction slips, which contain legitimate signatures that the autoforger can’t deny are his. Ideally, those documents would predate the alleged autoforgery, giving them additional legitimacy.

A handwriting expert, armed with these signatures, may be able to conclude to a reasonable degree of certainty that the signature is legitimate even if the signer disguised it with autoforgery techniques. Such an expert may also be able to explain to the jury what autoforgery is and how it works. An expert who can demonstrate expertise in the field and help jurors grasp this unusual type of fraud can be invaluable.

Autoforgery cases are exceedingly rare

Reported legal opinions that reference autoforgery are virtually nonexistent. In a sense, there’s no such thing as an “autoforgery litigation.” Rather, the matter of autoforgery will arise in a case in which a person denies his own signature (already a fairly rare event). In a typical case of someone disavowing his own signature, the signature itself will look to the untrained eye to be similar to the signer’s other signatures, and the signer will claim his signature was forged by the tracing or replication of a legitimate signature the forger had in hand.

But the autoforgery case is different: The forged signature looks markedly different from the maker’s usual signature. A cogent explanation of the autoforgery theory helps the jury understand the discrepancy. The plaintiff (and its counsel, aided by a handwriting expert) should present the concept of autoforgery to the jury early in the case by attempting to establish the legitimacy of the signature with the proactive steps here.

Nathan J. Novak, CFE, is a partner at law firm Cole Pedroza LLP. Contact him at nnovak@colepedroza.com.