The disposition of personal injury lawsuits by settlement has long been favored by the judiciary and litigants alike. Typically, when a case is verbally settled over the phone for a sum of money, defense counsel sends out a letter confirming the amount and requesting settlement documents (alternatively, defense counsel sends the letter and drafts his own settlement documents). But what happens when those documents are not returned and you receive an uncomfortable phone call from plaintiff’s counsel advising that their client had a change of heart? Is there a settlement under the CPLR? Is that confirming letter enough to bind the parties to the settlement? This becomes even more problematic in today’s isolated informal world of electronic communications.

Text messaging has become one of the most prevalent forms of communication in our society over the past decade, especially among younger Americans. In fact, young Americans send almost 10 times the number of text messages as Americans over the age of 55.1 As this becomes more prevalent in the workplace, more and more settlement negotiations are being conducted via instant electronic communication including text messages and e-mail. So the question then becomes, is an email or text message sufficient to bind the parties to a settlement?

What Constitutes a ‘Writing’?

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