Ultimately, every unresolved fee dispute, trade secrets case, and business disagreement must be decided in court. Since jury trials are long, expensive ordeals, and juries donâ€™t like â€œemployment agenciesâ€ (yes, that means you regardless of your protestations), understanding how judges think is an invaluable advantage.
Recruiters have difficulty understanding judges because they have opposite personalities. The average recruiter is aggressive, entrepreneurial and risk-oriented. The average judge is withdrawn, conservative and security-oriented. A classic low-biller behind a high desk. If judges were otherwise, theyâ€™d be out running around to courthouses making the world safe for placement or something. Instead, theyâ€™re lawyers in prestigious civil service jobs with support staffs that would please any owner-manager.
Several years ago, I was asked to serve as a judge pro tem in court. From the first day I took the bench, I realized that lawyers donâ€™t understand judges any better than their clients do. Since the personality of a litigator (a contraction of â€œlittle alligatorâ€) is much like that of a recruiter, you can see why. This column should help you understand how to present yourself and your case:
1. JUDGES DONâ€™T LIKE TO MAKE DECISIONS
This sounds odd to a layman, since judges are supposed to be official decision-makers. But the majority of them donâ€™t like it. Since theyâ€™re â€œjudiciousâ€ by nature, they prefer to review (â€œweighâ€) the facts rather than rule on them.
But more importantly, every ruling leaves them open to â€œreversal on appeal.â€ I call this a â€œjudicial fall-off,â€ and the consequences can be even more disastrous.
Being reversed on appeal is the ultimate challenge to the absolute power of a judge. It goes beyond the personal embarrassment of a â€œbad call.â€
Even the few who donâ€™t let it bother them personally have to constantly defend the reversal statistics. While theyâ€™re on the bench, judicial councils review the reversals carefully. Judges who canâ€™t get their decisions through the hierarchy of appellate courts are bad for business. Judges are supposed to be infallible. Thatâ€™s what makes people follow their â€œorders.â€ The punishment for too many reversals is either assignment to the most boring, least visible job (probate or small claims court), or the Lower Slobovia Courthouse, Judge George S. Patton, Presiding.
The reversal statistics also provide great material for political rhetoric at election time. In fact, itâ€™s one of the few things an opponent can cite to unseat an incompetent incumbent. If the rulings can show a present prejudice, even better.
I have spent many hours in the chambers behind courtrooms, and donâ€™t know a single judge who canâ€™t tell you the outcome of every appeal thatâ€™s ever been taken from their rulings. Are they sensitive about making decisions? Do they take reversals personally? â€” Does a recruiter care about fall-offs?
I have also been at settlement conferences where a dozen lawyers have been stuffed into a stifling hot jury room for 8 hours a day until they hammered out an agreement. At one, the judge walked in during the third day and said â€œI canâ€™t make you settle this case, but I can make you wish you had.â€
2. JUDGES THINK PLACEMENT FEES ARE TOO HIGH
Before writing this report, I reviewed the judicial profiles (official resumes) of 100 judges in the Los Angeles Superior Court system. Here are a few interesting statistics about their backgrounds:
a. 11% were engaged in general civil litigation prior to becoming judges.
b. 37% were employed as attorneys by a governmental agency prior to becoming judges.
c. 41% specialized in criminal matters prior to becoming judges, and only
d. 11% indicated a business background (legal or otherwise).
Although I couldnâ€™t be sure, the pictures and surnames seem to indicate 68% were minorities as well. So itâ€™s no wonder judges think placement fees are â€œtoo highâ€ and even â€œoutrageous.â€ Most judges simply havenâ€™t seen 5-figure fees like that. Most judges havenâ€™t sat behind a hiring desk either. And none have sat behind a recruiting desk. They donâ€™t know how badly employers want qualified employees, how hard you work to place them, or how many times you provide qualified ones without getting paid.
That doesnâ€™t mean they donâ€™t care. But it does mean your lawyer better know, and better be ready to ask you exactly what you did to earn the fee. Not the usual response like, â€œI referred a candidate who was hired.â€ If you canâ€™t go nonstop for at least 15 minutes about how hard you worked in this case to take down an accurate JO, clear the fee, source candidates, qualify them, recruit them, refer them, debrief them, coordinate with the employer, and assist every step of the way in the placement process, you deserve to lose the fee. You havenâ€™t done your homework. That includes documentation of your efforts.
As I mentioned at the beginning, juries donâ€™t like â€œemployment agencies.â€ Judges consciously try to be more objective. But this doesnâ€™t prevent them from thinking placement fees are too high. Be armed with 15 minutes of machine-gun ammunition to unload when your lawyer yells â€œfire.â€
3. JUDGES DONâ€™T LIKE UNSIGNED FEE SCHEDULES
Thatâ€™s the bad news. The good news is that theyâ€™ll enforce them if you can prove a contract existed (except in those states where signed agreements are mandatory).
If youâ€™ve been reading my writing, you know that liability for a contingency placement fee usually depends on establishing an:
There isnâ€™t a single case in the standard law school texts on these legal leaps. Itâ€™s no wonder â€” who in the real world performs a service for 5-figure fees without a verifiable commitment from the purchaser? Who does it without shaking hands with the purchaser? Who does it without even meeting the purchaser? And (in the case of unsolicited resumes) without so much as discussing the transaction with the purchaser?
Most lawyers are unfamiliar with â€œoral implied reverse unilateral contractsâ€ too. GPâ€™s just donâ€™t see them in their law practices. So thereâ€™s a high probability that your lawyer wonâ€™t be convinced he can prove youâ€™re entitled to be paid.
As any salesperson knows:
You canâ€™t motivate someone above the level of your own enthusiasm.
So I suggest you get your hands on The National Placement Law Center Fee Collection Guide, Placement Management or The Placement Strategy Handbook. Share the information with your lawyer, and let them learn that placement fees are easier to collect than they are to earn â€” if you know how to budge a judge.
4. JUDGES DONâ€™T ASSUME CLIENT AND CANDIDATE CONTACT INFORMATION ARE TRADE SECRETS
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Guide: Practical Tips for Remote Hiring
Trade secret litigation is among the most complicated, emotionally-charged and expensive areas of the law.
The problems of proving exclusivity of employers and candidates are compounded by the difficulty in establishing that the ex-employee obtained the information as a result of working for the former employer.
The scene at trial is played against the backdrop of a law that often changes whenever the legislature meets or the appellate court rules.
Judges are concerned that restraining orders and injunctions will be â€œoverbroadâ€ and unenforceable. How can they prevent an employer or candidate (not a party to the action) from calling or writing to a recruiter? How can they prevent an ex-employee from working with employers or candidates that they knew before working for their ex-employer?
They can. But your lawyer better really know their stuff. Judges rule on the law, but lawyers research and argue it. If you donâ€™t give the judge the legal brass ring to rule in your favor, donâ€™t expect them to grab it. As one judge quipped to me recently â€œIf I donâ€™t see it or hear it, it doesnâ€™t exist.â€
Thatâ€™s how our system works.
5. JUDGES LIKE BEING JUDGES
Status symbols and superiority replace salary in the judgeâ€™s world. Letâ€™s look at it:
a. A judge doesnâ€™t work in an office, he works in chambers. Sounds like â€œchurch,â€ doesnâ€™t it? The similarity doesnâ€™t end there: Nobody ever shouts. Court clerks, bailiffs, reporters and others scurry about like obedient servants. And he comes home to â€œHow was your day at the chambers, dear?â€
b. A judge doesnâ€™t work in business clothes. He works in a robe. Who else works in black robes? Holy, ordained people of the cloth!
c. A judge doesnâ€™t sit at a desk, he sits on a bench. Elevated high above to watch the mortals below. One of them (the clerk) hangs on their every word and follows their instructions without question. Another (the reporter) records every sound they utter from their precious lips. And another (the bailiff) sits there in a police uniform, armed with deadly force, ready to protect them from harm â€” a vigilant bodyguard who washes his car on command.
d. People appear on cue in a regulation 3-piece uniform, using big words and deferring to the judge â€” calling them â€œYour Honor,â€ thanking them for â€œoverrulingâ€ their objections, and laughing at their jokes before theyâ€™ve delivered the punch line.
e. A gavel out of the holster, just in case â€œorder in the courtâ€ must be enforced.
f. Always the â€œguest of honorâ€ outside the courtroom. People gather around for opinions on social issues.
In Law, Lawyers and Laymen, former judge Bertram Harnett Observed:
[C]ourtrooms are clearly no neighborhood social rooms, Their decor, featuring highly polished wood with governmental crests and flags, is a reminder that this is a hall of authority… If any doubt persists, it is challenged by the entry of the judge, an ordinary person but cloaked in a ceremonial robe and a solemn look, to the fanfare of the bailiffâ€™s announcement â€œAll rise. Hear ye, hear ye, this honorable court is now in session, Judge Bruce M. Kaplan, judge presiding. All draw near, give your attention and ye shall be heard. You may be seated.â€
Judging is unlike anything else ever experienced. Anyone who respects our system of justice must be overwhelmed with a sense of responsibility equal to the power judging your fellow human confers.
Judges judge themselves more strictly than others. Regardless of how they fared as lawyers or why they decided to become judges, most recognize they are entrusted with the highest duty imaginable. They analyze and agonize over their decisions far more than litigants and lawyers understand. I donâ€™t know a single one who isnâ€™t scrupulously honest and doesnâ€™t do the best they can to rule impartially.
These are the things every recruiter should know to budge a judge. From someone who went from â€œworking a deskâ€ to â€œtaking the bench.â€
Jeff Allen, J.D., C.P.C. may be reached at: Law Offices of Jeffrey G. Allen, 9601 Wilshire Blvd. #1400, Beverly Hills, CA 90210. (310) 559-6000 [http://www.placementlaw.com/] The Fee Collection Guide, Placement Management and The Placement Strategy Handbook as well as other publications can be purchased through www.searchreserachinstitute.com.