The Smell Test

The decision and order are out. Your lawyer flips to the last page, the only one that really matters.

Who won the motion? How much will you be paying for support, and for how long? Is your company going to be drawn into your divorce case? Is the trial going to be delayed again? Who gets stuck with the tax penalties? Are you going to lose the house? Where are the kids going to live?

Pretty bizarre, leaving decisions that are so critical to your life in the hands of some stranger in black robes. Who the hell is that judge anyway? Is s/he so quick, so intuitive, so brilliantly analytical, to be uniquely qualified for such a demanding and important job? Umm, I'll punt on that one, at least here on HuffPo. (You can take a look at my blog for my thinking on this subject, if you're so inclined.)

No, I want to talk about what's behind judicial decisions: What makes the results practically inevitable in so many cases. Why you, or your spouse, may never have had a fighting chance from the get-go. How you were able to turn your case around from a total loser to a hands-down winner, or the other way around. And yes, this can be something that only you control.

Forget about gender bias arguments, claims of corruption in the legal system, or how the "old boy" network supposedly operates. Maybe those arguments have some merit. Maybe they're just paranoid. It doesn't matter. Because for the vast majority of cases, those issues aren't at the crux of court decisions. What is?

I call it The Smell Test.

Okay, the judge considers what your lawyer presents to the court. And what your spouse's lawyer says and writes about you which, chances are about a zillion to one, is extremely unflattering. Let's not forget the experts, either, who, in their inimitable wisdom, opine about your finances, your psyche, your motives, and your conduct. Never underestimate their power to sway the judge.

Or the witnesses, judges might consider them, at least to some degree - please, you need to put a lid on that family member who refuses to mind his/her own business, and get the human resources lady to turn over your pension stuff before she goes on her honeymoon. Witnesses for the other side? Not much you can do about them, so don't pester them. Bad idea.

Lord knows your spouse will be going after you hard, maybe s/he's out for blood. Maybe s/he will be so nutty, so unreasonable, so vile, that, assuming you're not equally horrible (justifying a "plague on both your houses" mentality by the judge), s/he will self-destruct.

But when all is said and done, even in this cacophony of information, it's up to you to make or break your own case. So what you say, what you do, how you look -- both in and out of court, right now, during the case -- that's just about all you can control, but cripes, it matters. It seriously matters. You can't change the past, and you can't change who you are. But you can control how you handle yourself in your greatest time of need. Of course, any hint of insincerity or opportunism, any contradiction of your true intentions -- well, most people (even judges!) aren't so utterly clueless that they won't detect you're trying to pull a fast one.

Whether it's because you remind the judge of a favorite cousin, or your spouse has the same first name as the judge's sworn childhood enemy, or you cuss out the judge's favorite court officer, one of you glares at the other lawyer across the courtroom at the preliminary conference...you name it. That first impression counts. But then there's the next court appearance, and the next, and the next. Plenty of time and ways to build on or demolish that first impression. Like the forensic evaluations. And your compliance with court rulings, Your cooperation with your spouse during the case. Your body language. The information filtering into court about your dealings with teachers, therapists, the cops, the kids.

Every case gives off a certain vibe. Every human being reacts to another with a visceral, gut feeling of sympathy or distaste. A judge who has the power to affect the rest of your life is no different. In fact, his/her antennae are overly sensitized - it makes decision-making that much easier. Yes, a good lawyer will help you to maximize and capitalize on the positives, and minimize the negatives. But you give off your own vibe.

Which of you is going to pass The Smell Test? Because, unless lofty Constitutional issues are involved that transcend personality, whoever passes it will find that the law has been pushed, pulled, shoved, squeezed, pressed, rolled and stuffed into the facts of your case. Yep, it all boils down to The Smell Test.

From my May 11, 2011 article in the Huffington Post-Divorce
http://www.huffingtonpost.com/terri-weiss/the-crux-of-divorce-decis_b_860368.html