Five Things Every Recruiter Should Know To Budge A Judge

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 don’t like “employment agencies” (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 The average judge is withdrawn, conservative and security-oriented.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, they’d be out running around to courthouses making the world safe for placement or something. Instead, they’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 don’t understand judges any better than their clients do. Since the personality of a litigator (a contraction of “little alligator”) 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 DON’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 don’t like it. Since they’re “judicious” by nature, they prefer to review (“weigh”) the facts rather than rule on them.

But more importantly, every ruling leaves them open to “reversal on appeal.” I call this a “judicial fall-off,” 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 “bad call.”

Even the few who don’t let it bother them personally have to constantly defend the reversal statistics. While they’re on the bench, judicial councils review the reversals carefully. Judges who can’t get their decisions through the hierarchy of appellate courts are bad for business. Judges are supposed to be infallible. That’s what makes people follow their “orders.” 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, it’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 don’t know a single judge who can’t tell you the outcome of every appeal that’s ever been taken from their rulings. Are they sensitive about making decisions? Do they take reversals personally? — 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 “I can’t make you settle this case, but I can make you wish you had.”

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 couldn’t be sure, the pictures and surnames seem to indicate 68% were minorities as well. So it’s no wonder judges think placement fees are “too high” and even “outrageous.” Most judges simply haven’t seen 5-figure fees like that. Most judges haven’t sat behind a hiring desk either. And none have sat behind a recruiting desk. They don’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 doesn’t mean they don’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, “I referred a candidate who was hired.” If you can’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 haven’t done your homework. That includes documentation of your efforts.

As I mentioned at the beginning, juries don’t like “employment agencies.” Judges consciously try to be more objective. But this doesn’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 “fire.”

3. JUDGES DON’T LIKE UNSIGNED FEE SCHEDULES

That’s the bad news. The good news is that they’ll enforce them if you can prove a contract existed (except in those states where signed agreements are mandatory).

If you’ve been reading my writing, you know that liability for a contingency placement fee usually depends on establishing an:

a. Oral,
b. Implied,
c. Reverse,
d. Unilateral,
e. Contract.

There isn’t a single case in the standard law school texts on these legal leaps. It’s no wonder — 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 “oral implied reverse unilateral contracts” too. GP’s just don’t see them in their law practices. So there’s a high probability that your lawyer won’t be convinced he can prove you’re entitled to be paid.

As any salesperson knows:

You can’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 — if you know how to budge a judge.

4. JUDGES DON’T ASSUME CLIENT AND CANDIDATE CONTACT INFORMATION ARE TRADE SECRETS

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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 “overbroad” 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 don’t give the judge the legal brass ring to rule in your favor, don’t expect them to grab it. As one judge quipped to me recently “If I don’t see it or hear it, it doesn’t exist.”

That’s how our system works.

5. JUDGES LIKE BEING JUDGES

Status symbols and superiority replace salary in the judge’s world. Let’s look at it:

a. A judge doesn’t work in an office, he works in chambers. Sounds like “church,” doesn’t it? The similarity doesn’t end there: Nobody ever shouts. Court clerks, bailiffs, reporters and others scurry about like obedient servants. And he comes home to “How was your day at the chambers, dear?”

b. A judge doesn’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 doesn’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 — 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 — calling them “Your Honor,” thanking them for “overruling” their objections, and laughing at their jokes before they’ve delivered the punch line.

e. A gavel out of the holster, just in case “order in the court” must be enforced.

f. Always the “guest of honor” 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 bailiff’s announcement “All 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.”

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 don’t know a single one who isn’t scrupulously honest and doesn’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 “working a desk” to “taking the bench.”

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.

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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