Does your case stink?

Lawyers are often criticised for getting their clients "off on a technicality".  The public sees it as a "loophole" in the legal system where the person escaped liability and the situation seems unfair. These cases make big news, but they don't happen that often.

Lawyers can get tempted to make "brilliant" arguments on some fine legal point.  "Brilliant" means that the lawyer has found some crafty and highly technical way to interpret the facts of the case so that the law supports that position.

Clients sometimes think that some "brilliant" technical argument is going to win their case for them.

Think again. 

There is a term that is used by some lawyers to describe how the justice system works in these situations.  We call it the ?smell test?.  When I was on a course, a senior lawyer described it this way: Judges are human beings.  They have noses.  If your case stinks, it doesn?t matter how brilliant, logical or legally correct your arguments may be: you will still probably lose. 

Likewise, if the client is alleging certain facts that are just too hard to believe, the case starts to smell. 

What is the ?smell test??  It?s nothing more than a look at the ?big picture?.  On the facts of your case, does it make sense that you win or lose?  Is your case believable?  Does an observer look at the facts and arguments and say ?yeah, right? with sarcasm?

I have actually said to the judge, in court, that the other side?s case ?doesn?t pass the smell test?.  The judge smiled and I made my point.  I knew that I had made the judge think of the big picture and that was all that I had to do.

Judges, being human beings, have the same reactions to cases that we do.  They may listen to the facts and think: ?yeah, right? with sarcasm.  If that happens, they are likely to find a reason for your to lose.

You may be surprised to hear this, but, most of the time, if you look at a case and decide in your mind what the common-sense result should be, the law deals with the case in the same way and gets the same result.

The bottom line is this: ?brilliant? arguments and far-fetched facts sometimes win your case, but the odds are against you.