Checkmating the “We Never Got the Resume” Defense

Maybe you’ve discovered a placement from a mass resume emailing. Or maybe you were tracking one, and thought the client was working from the resume you sent. Or maybe you even discussed the candidate with the client.

Proving an email was received is a lot like winning at chess.

You establish receipt by methodically closing off each opening, one at a time. The client eventually gets caught. It can’t establish non-receipt.

There are five moves you must master. Executing them is ve-r-r-ry tricky, because all you really have going for you is you saying the resume was sent. If your printout of an email is what you’re using, you haven’t moved a pawn. It’s your email, so you’re just saying it again electronically. You have the burden of proof by a preponderance of the evidence, and that’s not it.

The basic employer lawyer defense is that – regardless of anything written in your fee schedule — the client didn’t receive the resume. Clever, ay? An amateur’s chess mess!

But you’ll be an amateur no more. Like a pro, you’ll win by just proving receipt. Doing just that (1) imputes (legally charges the client with) (2) constructive knowledge (the equivalent of actual knowledge), (3) then silence (by no reply) as (4) acceptance.

So it’s all about proving receipt. There are five moves to do it.

Move 1: Put “Resume Of (candidate’s name)” In The Subject Line of the E-Mail

Executing Move 1 will enable you to lock the email into the sent email list that you print at the end of each day (Move 2). It will also match the actual email date and subject line exactly. Finally, it will indelibly identify the candidate being presented.

Move 2: Print Out Your “Sent” E-Mail List at the End Of Each Day

You must execute Move 2 daily just before you pack it in. The rationale is largely historical – records used to be kept manually, and the less time from the event to the record meant the less likelihood of errors or “creative recordkeeping.” (5 Wigmore 1526, 20 AmJur2d 938, 31 CJS 309)

Now, I’d like to introduce you to chess master Professor Charles T. McCormick. The Professor will be joining us posthumously to help me explain the moves. He discussed the necessity of immediate recording in his most-cited legal treatise McCormick on Evidence:

A substantial factor in the reliability of any system of records is the promptness with which transactions are reported. Accordingly, all formulations for the hearsay exception for regularly kept records require that the entry be made either at the time of the transaction or within a reasonable time thereafter. (31 McCormick 309)

Hearsay

Professor McCormick is telling you (from the grave – he’s very persuasive) that your single email with the resume is a form of hearsay. It is an out of court statement being introduced as evidence to prove that the resume (or fee schedule) was sent. Your computer was “speaking” out of court where there was no opportunity to check its accuracy, whether the printout was rigged, etc.

If your lawyer tries to introduce the report, the employer lawyer objects. (He says “Objection. Hearsay.” He’s yelling “Check!”) The list printout can’t be introduced (added to the court file as an exhibit and considered by the judge or jury) as substantive evidence unless there is an exception to the hearsay rule.

The Exceptions

The exceptions to the rule are what prevent “check” from becoming “checkmate.” Without them, you’re just sitting at the counsel table contemplating. If your lawyer’s doing it too, better remind him it’s your move. Write him a note (no talking while court’s in session) that says:

BUSINESS RECORD EXCEPTION!

If that doesn’t work, write him a note that says:

SAY THIS NOW!

Then show him the following. The Uniform Business Records as Evidence Act, adopted in (insert your state) as (insert the citation of your statute) reads:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies as to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

This technique requires that you photocopy this article, and call your lawyer’s office in advance to get your state’s citation of the UBREA. Of course, discuss it with your lawyer before the trial (if he’s not too nervous), and get a copy of the actual statute. But your five-figure fee (less attorney’s fees and costs) is on the line. Don’t leave a checkmate to chance.

If that doesn’t work, write him a note that says

ASK FOR FIVE MINUTE RECESS TO CONFER WITH CLIENT!

That’s so you can convince him to read the UBREA script. And if that doesn’t work, kick him in the knickers. He needs a legitimate reason for a recess anyway. You’ll feel so much better, too.

As he’s hobbling over to get his computer or find the courthouse library, here’s a pointer about what to say: Call it “professional liability insurance” not “malpractice insurance.” It sounds like you’ve researched his exposure. It invariably gets him more interested in your case than his (for assault and battery).

Checklist

Here’s the checklist for getting the daily printed sent email list into evidence. Completing it is essential to executing Move 2:

1. Is the person who sent the email resume in court to testify?
2. Is the person who printed the sent email list daily present in court to testify?
3. Can you testify that it was a customary and usual business practice at the time to print daily sent email lists?
4. Did you bring 10 (two weeks) of consecutive daily sent email lists for the period before and after emailing the resume or fee schedule to prove custom and usage?
5. Did you bring the actual email to compare with the list (date, time, subject, etc.)? Did you bring a printout of the entire email trail with that subject line)?
6. Can you testify that your computer was working properly throughout the time that daily printouts were made?

(NOTE: If your email program tells you on the sent email list whether the email was opened by the recipient, great. Not as great as you think, because it’s your computer “speaking” a hearsay statement. It’s hearsay because you could theoretically rig it. But still, great.)

This documentation is a tall order for a shortsighted recruiter. And your attorney won’t ask you for it. But now that you’ve read the UBREA, you can see how important it is to bring an emailed resume or fee schedule within the business records exception to the hearsay rule.

This is known as laying a foundation. You’ve established that a transmission occurred at a certain date and time, and identified that the specific candidate’s resume was transmitted by you. This authentication process has become another exception to the hearsay rule known as recorded recollection. (30 McCormick 300, 3 Wigmore 735, 29 AmJur2d 877, 32 CJS 696)

Even when the witness can’t remember printing out the sent email list (or the actual email), it can still be used to refresh her memory.

If your state doesn’t recognize recorded recollection as an exception by statute, your lawyer should cite the New Jersey Supreme Court case of State v. Bindhammer (44 NJ 372, 209 A2d 124). The Jersey justices said:

Since the judicial search is for truth and accuracy, it would indeed be self-defeating for a court to compel a reporter to testify from memory rather than his notes on transcription [printing] , and this would be so regardless of the extent of the reporter’s present recollection.        

A sent email list can then be used to show a pattern of similar transactions before, during and after the email in question.

Move 3. Back Up Your E-Mail With Your Other Business Records

Executing Move 3 gets you past the pawns so you can box the client king into a checkmate position.

Move 3 is executed with documents like:

1. Phone logs.
2. Sendout sheets.
3. Correspondence with the client around the same time (even if regarding different candidates).
4. Correspondence with the candidate around the same time (even if regarding different jobs.
5. Correspondence with other clients around the same time regarding the candidate.
6. Itemized phone bills showing calls to or from the client and candidate.
7. Replies from the client and candidate.

That emailed resume looks a lot more credible if other unrelated emails are wrapped around it. They tend to corroborate (indirectly prove) by circumstantial evidence (surrounding the transmission) that the resume was sent.

The Jersey justices had repeatable, reportable words to say about this too in Miller v. Trans Oil Co. (8 NJ 407, 113 A2d 777):

Justice and common sense, fused by enlightened reasoning, engender a legal philosophy embodying the abolition of all obstacles having a tendency to deprive the [judge or] jury of any facts, however remotely relevant or from whatever source, which gravitate toward assisting them in arriving at a correct solution factual equation before them. Intellectual productiveness is not increased, nor is the truth maintained by withholding circumstances which may shed some helpful light.       

Polysyllabic words in compound sentences like that really budge a judge. They massively overcome the hearsay objection by showing the documents are not being offered to show they are authentic, but only to corroborate emailing of the resume or fee schedule.

Move 4. Get Any Reply From The Client To Prove The E-Mail Was Sent.

(That’s why I listed replies as Rule 3, Move 7.)

You can make Move 4 much more likely if you include the following on every emailed resume or fee schedule:

To ensure that you have received a complete email transmission, please click REPLY and press ENTER on your keyboard. Thank you.

You will then have absolute confirmation from the client that the email was received.

This is the electronic equivalent of a certified mail return receipt. In fact, it’s better because the court will take judicial notice of the email receipt.

The Texas Supreme Court defined judicial notice notably in Harper v. Killian (345 SW2d 309):

The doctrine of judicial notice is one of common sense. The theory is that where a fact well-known by all reasonably intelligent people in the community, or its existence, is so easily determinable with certainty from unimpeachable sources, it would not be necessary to require formal proof.

This is the best form of self-authentication. Another good one is a written reply from the recipient – the client.

Invite or Incite

Professor McCormick summarized why the courts take judicial notice of this:

[A] convenient practice recognizes that if a letter has been written to X, and the letter now offered in evidence purports to be written by X and purports to be a reply to the first letter (that is either refers to it or is responsive to its terms) and has been received without unusual delay, these facts authenticate it. . . When the reply letter purports to be signed [emailed] by an agent or other representative of X, the addressee of the first letter, the authority of the signing representative is presumed. (22 McCormick 225)

This is the reason I advise that you do almost anything to invite – even incite – a response from the employer. Let someone email back: “He’s already in our data base.” “He answered our job posting.” Or “Another recruiter submitted him already.” Let them say “We don’t deal with headhunters”; “Your fee’s too high”; or, “We’ll report you to the FBI.”

Nobody says they have to hire the candidate. But if they do, the game’s over. “Checkmate!”

Move 5. Use Your Printout Of The E-Mail As Evidence When The Client Denies Its Receipt.

Move 5 gets you out of Cyberia. Employers with lawyers just don’t ever receive emailed resumes and fee schedules when there’s no reply to them.

When dealing with an initial email, you’ve got to plan your moves carefully. You want to use the best evidence rule to resurrect your emailed (but unprovably delivered) resume. The rule is ancient – dating back to the 18th century – and simply says original documents should be introduced unless they are “lost or destroyed.”

The judge has wide discretion to decide whether your copy of the resume will be admitted, so your lawyer should lay a foundation for doing so by cross-examining the hiring authority like this:

The best evidence rule is nothing more than a recognition that people sometimes delete emails and destroy documents (sometimes “accidentally on purpose’).

Here are some quotable words from Professor McCormick to remind the judge:

[I]f as a practical matter the document cannot be produced because it has been lost or destroyed, the production . . . is excused and other evidence of its contents becomes admissible. Failure to recognize this qualification of the basic rule would in many instances mean a return to the bygone and unlamented days in which to lose one’s paper was to lost one’s right. (23 McCormick 237)

In this case, the right is yours – to whisper to your lawyer (no talking in the courtroom) as you stomp on his foot gleefully — “Checkmate!”

These are the five moves you need to know before you click “Send.” Follow them to prove that resume was sent each time, and “Checkmate!” — another full fee!

Image courtesy of Simon Howden / FreeDigitalPhotos.net