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.
Although clients must be entitled to set their goals and values, this is an area that I suspect lawyers should probably take a strong hand in steering people away from destructive courses. It seems to me that many divorce lawyers let clients set a destructive tone, usually by focusing on the client's feelings as a goal, and the usual result is the lawyers gut the estate, and leave the family in tatters. It's a very workable business model if you have no concern about what you leave behind you.
But who am I to suggest that one's personal feelings may not be more important than any calculation of providing for the children, and conserving other resources? Like many lawyers, I have enough fights without looking for more, and don't find them particularly entertaining; and I tend to regard personal feelings as something the law can't predict or remedy.
I think the difficulty in an adversary model of divorce is that it will generally minimize the chances of cooperation which is very important in the presence of children; and I think that it's a mistake to spend a dollar fighting over a dime, as we often see in divorces.
Best of luck to you,
Terri
Good luck in your case - Terri
http://www.nytimes.com/2010/12/05/business/05divorce.html
"The Top 10 Reasons to appreciate a lawyer “
To be continued
Every once in awhile, you have to look at the world with your own eyes. Not long ago, in a walk through the mall, I noticed the busyiest store, by far, was the Apple store. Am I surprised as it becomes the most valuable company in the world...no.
So lets take a look at the world of divorce. The statistics are clear:
Mom gets "primary physical custody" in 83% of cases.
Dad gets Primay in 8% of cases.
Shared physical occurs in 8% of cases.
Standard "visitation" is every other weekend
The "real world" view of divorce, doesn't match with the articles two main points.
That said, if everybody believes they DO have a chance, it's more likely they'll pursue a case. Contrast that with if there is a belief they stand no chance... then whats the point of moving forward legally. Of course, on such a decision tree, one leads to billable hours and one does not. When I presented the last attorney here who claimed he was not seeing Dads getting short shift in his district with the US Census numbers, I heard.... crickets, crickets, crickets. Havent seen him since.
Here's a thought, lets have lawyers compensated on a "success fee" basis. Would Men even be able to get representation under such a scenario?
http://psychcentral.com/news/2011/05/03/public-support-rising-for-joint-custody/25861.html
I don't think I wrote that "each case is different," although, of course, they are. The point is, some cases will go down the drain if that party makes the judge nauseous, no matter what. Others can be salvaged, even if they are off to a bad start, if the party can resurrect his/her image by positive words and actions that are sincere. Those positives can be maximized - or they can be buried and do that person absolutely no good at all.
I'm aware of the stats, although they seem to vary depending on who is citing them. I'm also well aware of the realities of the courtroom. And I know sometimes, parties get nailed by judges for no rational reason whatsoever. I've seen it happen. (See the latest post on my own blog.) Does it happen more to men than women? Well, who's doing the arguing?
As far as your implication is concerned that men cannot achieve "success" in custody cases (I assume you define "success" as litigation that results in a father becoming the primary physical caretaker of the children), my response is that I have done so, many times, as have many other attorneys.
Presumably you're aware from my bio, and from my other posts on HuffPo, that I have zero tolerance for gender-based agendas. I'm sorry for your bad experience, but this is one messenger you shouldn't be lambasting.
However, we no longer live in those ancient times. Those traditional roles, once codified in both tradition and laws, have blurred and become less significant as we have progressed.
Both men and women fear those changes as they fear any change which will affect their comfort zone.
The overall situation is improving, but, as the changes mount up, the opposition becomes more strident, rabid, and inflexible. It is an educational process, and that means that the progress will be slow for the foreseeable future.
I tend to agree with CBasikJr's comment to your note, to the effect that traditional gender-based parenting roles have been on the wane. I think your comment still reflects societal norms, although I wonder how much is perception versus reality, at least among the socio-economic segment of those who are or would be litigating child custody issues.
Jacqueline Harounian posted an article on this site two days after this one, that you might find interesting: http://www.huffingtonpost.com/jacqueline-harounian/fathers-really-do-have-ri_b_858348.html
In truth, there are far too many judges who will in fact use The Smell Test, not knowing that the true stink is hidden under fancy cologne or perfume.
As an aside, not showing one's anger in court is always the smartest course of action, no matter how difficult it may be. Really, does anyone feel good about a person who's screaming at or in front of them?
I've found that in the vast majority of cases, judges go with their gut, even if they're not (heaven forfend!) the brightest bulbs on the planet.. Right or wrong, that's how most decisions are made.
Therefore, it's up to the party to do whatever s/he can to ensure the judge has a positive gut feeling about him/her. As long as s/he isn't full of well, whatever, because a con artist can usually be spotted a mile off.
Unfortunately, I'm referring to abusers. These are parties whose skills to impress fool divorce professionals of every kind (ad litems, mediators, attorneys, judges, therapists, child welfare workers...).
Without extensive training and perhaps engaging intimate partner violence experts when its advisable to do so, far too many abusers charm the pants off of too many professionals to fathom.
I deal with much of the fallout from these missed opportunities, where coercion and intimidation require an entirely different skill set that's the norm.
I cringe at so many instances where the children are placed with the harmful parent. Happens over and over and over....