A judge can enforce a contentious agreement in a court action only if it is signed in writing and by counsel or recorded in the minutes. An unrepresented party can sign without a lawyer. The first step is to establish a formal agreement under section 11. Texas Rule of Civil Procedure 11 provides that no agreement will be reached between lawyers or parties affecting a pending action, unless it is written, signed and filed with the documents under the protocol, or unless they are entered into in open court and recorded in the case. The courts are requesting that section 11 agreements be, at their most fundamental level, enforceable litigation-related contracts. Article 11 aims to ensure that legal assistance agreements affecting the interests of their clients are not abandoned to the deception of human memory and that the agreements themselves are not controversial. Courts have an obligation to enforce valid agreements under section 11. The rule makes sense. If lawyers disagree on who said what or the terms of an agreement, a judge should not have to rule. Honest people often remember details differently. Without a letter, people could understand the details differently by the time the agreement is reached. In conversation, the details can be brilliant or ignored to avoid tension. Over time, memories can change.
Even e-mails can be a Tex. R. Civ. Proc. 11. To Green v. Midland Mortg. Co.
(About 14 Dist. 2011) 342 S.W.3d 686 the 14th Houston Court of Appeals, which ruled in 2011 that the emails and a letter constituted a Rule 11 agreement. Other cases have called into question the validity of electronic signatures. The voluntary addition of a signature block to an email is probably sufficient for an agreement under Rule 11. How do you implement a Rule 11 agreement when contentious issues arise or when a party claims to have revoked its consent? The only method available for the application of an agreement under Rule 11 is summary judgment or judicial review. The application of a controversial Rule 11 agreement, simply through an application and hearing, would deprive a party of the right to confront appropriate briefs, to defend themselves, to conduct investigations and to submit contentious factual issues to a judge or jury. Lawyers and parties should be aware that if they do not comply with a Section 11 agreement, the parties sign a cycle of motions that most likely has nothing to do with the fundamental and contentious issues in the case. Section 11 does not require formalities. Lawyers sometimes make it look like a formal plea, with the style and registration of the lawsuit.