What makes some people so stupid as to deny the obvious?
I swear to God this happens. A guy will take the stand and swear to me he has never visited a strip club, while he knows that I am holding a stack of bank records showing his weekly visits to the Pink Pony to the tune of around $250.00 per libidinous visit.
Or a woman will testify that she and that fellow her husband is so worked up about are just good friends, despite their cell phone records showing daily calls in ridiculous quantities totalling hours upon hours well into the night. Add to that their texting records with, "this afternoon was great; I think we could do it all night long, " and, "I hunger until we are together again." Calculate next the charge receipt from a couple of months ago at Victoria's Secret for that lace teddy that the husband has never seen. "We're just good friends." And she says it with such a sweet face, too.
And its not confined to witnesses. I recently I had an opposing counsel tell the Judge that my client was a danger to his children therefore a Guardian ad Litem needed to be appointed to protect the children even though counsel knew I had his client's deposition in which she swore that she had no concerns about my client around his children whatsoever. For Opposing Counsel it made for a great story. For the Judge it made for a great lie. The judge was not amused.
So what makes people so stupid as to deny the obvious, when the refutation of their balderdash is staring them right in the face?
Why is committment to the truth such a rare commodity rather than a nearly universal trait? It is as though some folks are so wedded to their position that they've never attached a value to truth. Truth to them must be relative; it is what they say it is, not what any document or fact would demonstrate. Truth is within their mind and may it never be disturbed.
Suppose you asked someone for the sum of 2 + 3. And suppose they gave you the answer of 6. Now suppose that this person could never be moved from their position that 2 + 3 = 6. No amount of demonstration, investigation or education could sway them from their position. What would you think about that person? What would you say about that person? Are they stupid? Are they denying the obvious? Or both?
It sounds as though I'm oversimplifying but this blatant denial of the obvious happens all the time and perhaps is even increasing. As I said, it happened quite recently.
You wouldn't think people would need to shift their paradigms to value truth nor obtain some education on how to determine truth, but it would seem some basic course might be in order for all these compassless souls. Some basic logic: if A equals B and B equals C, then A equals C. Go figure.
But after almost 21 years of trying family law cases and even longer of watching the politics of human interaction I realize that some folks will deny the obvious until the end of time.
By the way, did you hear? It rained in the Arctic this weekend.
http://www.reuters.com/article/idUSTRE63Q47820100427
Michael Manely
Wednesday, April 28, 2010
Monday, April 26, 2010
Parents are people, too
Perhaps you've heard the story of Abbie Dorn, mother of triplets born to her in 2006. Abbie and her husband Daniel wanted children and were tickled to learn that they were expecting. Oh, man were they expecting. All was going swimmingly in their lives.
Then it was time for delivery and something went terribly, terribly wrong. A medical mistake during delivery left Abbie severely mentally incapacitated. One year after the triplets were born, Daniel sought a divorce.
Abbie has been cared for by her parents in South Carolina while Daniel raises the triplets in Los Angeles. Daniel has denied all visitation between Abbie and the children contending that he wants to be the one parent for the children and will consider telling the children what happened to their mother when the children get older and are able to understand. Some years in the future, he might even let the children visit if he receives medical evidence that Abbie can communicate with her children. Abbie's parents contend that she can communicate, albeit quite sparingly.
The children turn four in June. Daniel thinks the children can handle their mother's situation better when they are older, apparently when they can grasp their mother's medical condition and its limited and perhaps non-existent prognosis for improvement. But I disagree. I vehemently disagree.
The key to assessing this matter is Daniel's "one parent" line. Granted, this phrase was spoken by Daniel's attorney, but attorneys do not get too far afield of their client's expressions and further, the attorney's assertion is whollly supported by Daniel's actions. He wants to be the "one parent."
But children have two parents. Daniel's frail ego cannot change reality. These three children have a mother whether she is exemplary or impaired. The children have a right to see her, have a right to develop a relationship with her. Daniel's actions are an infringement of that right.
The relationship will undoubtedly be incredibly different from the relationship most children develop with their mothers, but these children are entitled to the relationship they will develop with their mother, whether she can sing an aria or whether she is in a nearly vegetative state.
And Daniel's argument about waiting until they are older is disengenuous at best. If the children had seen their mother from the beginning, they would have grown up with a mother in that condition. It would have been a part of life, their natural order of things. With each passing month that the children are denied access to their mother, the children's increasing cognizance cannot help but create drama. Daniel is creating the children's trauma. Perhaps his next step will be to claim it is too late, "now they will be traumatized."
Daniel operates from the paradigm that he owns the children. Unfortunately, I see this often.
For Daniel, the children are his and only his. He will determine all facets of their lives right down to whether they ever get to so much as gaze upon their mother's face.
In my cases in which parental ownership is an issue, while I don't often address circumstances with brain injured parents, I do work with many mentally and emotionally impaired parents. But even when there is no medical or psychological component, even when there is no claim of such an issue, the parent who claims ownership operates the same way. "I am the one parent."
The owner parent acts unilaterally, denigrates the other parent, often does not include the other parent in activities, perhaps even refuses to provide the other parent with notice of school events. By the time I see them, there may have been so much history that the non-owning parent needs an opportunity to readjust his paradigms and prepare to re-enter the relationship on much healthier terms. I feel for these parents. They have been excluded from their children's lives.
And the children need these parents included. The children seem to feel a real void without the presence of that missing parent, even if the void is just psychological from a physically present but emotionally neutered parent. I am writing in male terms, but this condition sometimes also occurs with women, when the men gain primary custody.
And this situation is atrocious.
So you can guess how I feel about the plight of the Dorn children, and how I feel about their father's arrogant attitude.
For a child to be wholly separated from one of their parents there better be an exceptionally good reason. And that reason better not be because dad is Hispanic, or dad doesn't earn enough money, or mom has bi-polar disorder or because mom became brain damaged during delivery. That is a new definition for "sucks".
Michael Manely
http://www.cnn.com/2010/CRIME/04/22/california.triplets.visitation.lawsuits/index.html?hpt=C2
Then it was time for delivery and something went terribly, terribly wrong. A medical mistake during delivery left Abbie severely mentally incapacitated. One year after the triplets were born, Daniel sought a divorce.
Abbie has been cared for by her parents in South Carolina while Daniel raises the triplets in Los Angeles. Daniel has denied all visitation between Abbie and the children contending that he wants to be the one parent for the children and will consider telling the children what happened to their mother when the children get older and are able to understand. Some years in the future, he might even let the children visit if he receives medical evidence that Abbie can communicate with her children. Abbie's parents contend that she can communicate, albeit quite sparingly.
The children turn four in June. Daniel thinks the children can handle their mother's situation better when they are older, apparently when they can grasp their mother's medical condition and its limited and perhaps non-existent prognosis for improvement. But I disagree. I vehemently disagree.
The key to assessing this matter is Daniel's "one parent" line. Granted, this phrase was spoken by Daniel's attorney, but attorneys do not get too far afield of their client's expressions and further, the attorney's assertion is whollly supported by Daniel's actions. He wants to be the "one parent."
But children have two parents. Daniel's frail ego cannot change reality. These three children have a mother whether she is exemplary or impaired. The children have a right to see her, have a right to develop a relationship with her. Daniel's actions are an infringement of that right.
The relationship will undoubtedly be incredibly different from the relationship most children develop with their mothers, but these children are entitled to the relationship they will develop with their mother, whether she can sing an aria or whether she is in a nearly vegetative state.
And Daniel's argument about waiting until they are older is disengenuous at best. If the children had seen their mother from the beginning, they would have grown up with a mother in that condition. It would have been a part of life, their natural order of things. With each passing month that the children are denied access to their mother, the children's increasing cognizance cannot help but create drama. Daniel is creating the children's trauma. Perhaps his next step will be to claim it is too late, "now they will be traumatized."
Daniel operates from the paradigm that he owns the children. Unfortunately, I see this often.
For Daniel, the children are his and only his. He will determine all facets of their lives right down to whether they ever get to so much as gaze upon their mother's face.
In my cases in which parental ownership is an issue, while I don't often address circumstances with brain injured parents, I do work with many mentally and emotionally impaired parents. But even when there is no medical or psychological component, even when there is no claim of such an issue, the parent who claims ownership operates the same way. "I am the one parent."
The owner parent acts unilaterally, denigrates the other parent, often does not include the other parent in activities, perhaps even refuses to provide the other parent with notice of school events. By the time I see them, there may have been so much history that the non-owning parent needs an opportunity to readjust his paradigms and prepare to re-enter the relationship on much healthier terms. I feel for these parents. They have been excluded from their children's lives.
And the children need these parents included. The children seem to feel a real void without the presence of that missing parent, even if the void is just psychological from a physically present but emotionally neutered parent. I am writing in male terms, but this condition sometimes also occurs with women, when the men gain primary custody.
And this situation is atrocious.
So you can guess how I feel about the plight of the Dorn children, and how I feel about their father's arrogant attitude.
For a child to be wholly separated from one of their parents there better be an exceptionally good reason. And that reason better not be because dad is Hispanic, or dad doesn't earn enough money, or mom has bi-polar disorder or because mom became brain damaged during delivery. That is a new definition for "sucks".
Michael Manely
http://www.cnn.com/2010/CRIME/04/22/california.triplets.visitation.lawsuits/index.html?hpt=C2
Thursday, April 22, 2010
Play it again, Sam.
Tonight's entry is written by Jeremy Abernathy, an Associate of The Manely Firm, P.C on weekdays and jammin' musician on the weekends.
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
_________________________________________________
On Saturdays, I rehearse with my church band. All musicians are required to bring suggested songs for Sunday service. Typically, the songs suggested exhibit all of the various musical instruments in the band. This approach allows all to contribute in some fashion to the total production.
My role is to play the drums and set the tone. I serve as the “heartbeat” of the song.
Drums, however, can overpower a song and disrupt its harmony and balance. I must stay cognizant of balance and my duty to “glue together” the moving parts of the band. This helps yield the songwriter’s intended effect.
Practicing family law is analogous to playing the drums. When dealing with the moving parts and fluidity incident to litigation, I must listen for the rhythm of a case. My role then shifts to “feeling” the perfect moment to subtly inject a “new rhythm.”
“Injecting a new rhythm” means adding an additional fact for the Court to consider before making its ruling. It means kindly interrupting opposing counsel and holding their feet to the fire to produce a statute or case that supports their view of the facts. It also means respectfully contending with a zealous mediator.
At The Manely Firm P.C., we take pride in setting the tone for our clients. Even when hired at the “eleventh hour” we smooth out disconcerting family law conundrums.
We look forward to helping you achieve a balanced “life rhythm.”
Jeremy Abernathy
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
_________________________________________________
On Saturdays, I rehearse with my church band. All musicians are required to bring suggested songs for Sunday service. Typically, the songs suggested exhibit all of the various musical instruments in the band. This approach allows all to contribute in some fashion to the total production.
My role is to play the drums and set the tone. I serve as the “heartbeat” of the song.
Drums, however, can overpower a song and disrupt its harmony and balance. I must stay cognizant of balance and my duty to “glue together” the moving parts of the band. This helps yield the songwriter’s intended effect.
Practicing family law is analogous to playing the drums. When dealing with the moving parts and fluidity incident to litigation, I must listen for the rhythm of a case. My role then shifts to “feeling” the perfect moment to subtly inject a “new rhythm.”
“Injecting a new rhythm” means adding an additional fact for the Court to consider before making its ruling. It means kindly interrupting opposing counsel and holding their feet to the fire to produce a statute or case that supports their view of the facts. It also means respectfully contending with a zealous mediator.
At The Manely Firm P.C., we take pride in setting the tone for our clients. Even when hired at the “eleventh hour” we smooth out disconcerting family law conundrums.
We look forward to helping you achieve a balanced “life rhythm.”
Jeremy Abernathy
Tuesday, April 20, 2010
Gophers and Prairie Dogs
Tonight's installment is authored by Stephanie Steele, Senior Associate and Supervising Attorney for The Manely Firm, P.C.
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
______________________________
If you’ve ever seen a nature show about gophers or prairie dogs, you have probably noticed that they pop up from dens and burrows in the ground and peer about anxiously. They look as though they are searching for something. The gopher or prairie dog will often disappear down the hole again, not to be seen for some time. Then, quite suddenly, reappear with the same anxious look.
I think people are like that sometimes.
Too often, I stop and suddenly realize that I have been so absorbed in my daily routine of going to work, coming home and doing chores, sleeping and repeating that I’ve lost track of time. I haven’t talked to my friends in a couple weeks. I haven’t taken time to look around and enjoy the beautiful spring weather. I haven’t allowed myself to – just for a few minutes – shrug off the stress and responsibilities that weigh me down.
It is important to stay connected to people in our support systems – in our civic clubs, sports leagues, churches and other social organizations to which we belong. Especially during stressful times, such as a divorce or custody case, staying connected and involved in your regular activities is a great way to maintain a sense of stability and reassurance that there are many people who care about and support you. Making time to be with friends can energize and renew us. It’s an opportunity to strengthen our relationships with our children, our neighbors and our family in a way that also strengthens us.
I recently popped out of my gopher hole of routine and looked around when I received an email from our Gwinnett property manager. She sent a flyer reminding me of upcoming local events. It reminded me to pop up out of gopher hole, into the light of day and re-involve myself in the activities I enjoy and the lives of people I love.
For those in the Gwinnett area, I encourage you to take a look at the Visitors’ Bureau website for ongoing and upcoming events: http://www.gcvb.org/calendar/ .
Stephanie Steele
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
______________________________
If you’ve ever seen a nature show about gophers or prairie dogs, you have probably noticed that they pop up from dens and burrows in the ground and peer about anxiously. They look as though they are searching for something. The gopher or prairie dog will often disappear down the hole again, not to be seen for some time. Then, quite suddenly, reappear with the same anxious look.
I think people are like that sometimes.
Too often, I stop and suddenly realize that I have been so absorbed in my daily routine of going to work, coming home and doing chores, sleeping and repeating that I’ve lost track of time. I haven’t talked to my friends in a couple weeks. I haven’t taken time to look around and enjoy the beautiful spring weather. I haven’t allowed myself to – just for a few minutes – shrug off the stress and responsibilities that weigh me down.
It is important to stay connected to people in our support systems – in our civic clubs, sports leagues, churches and other social organizations to which we belong. Especially during stressful times, such as a divorce or custody case, staying connected and involved in your regular activities is a great way to maintain a sense of stability and reassurance that there are many people who care about and support you. Making time to be with friends can energize and renew us. It’s an opportunity to strengthen our relationships with our children, our neighbors and our family in a way that also strengthens us.
I recently popped out of my gopher hole of routine and looked around when I received an email from our Gwinnett property manager. She sent a flyer reminding me of upcoming local events. It reminded me to pop up out of gopher hole, into the light of day and re-involve myself in the activities I enjoy and the lives of people I love.
For those in the Gwinnett area, I encourage you to take a look at the Visitors’ Bureau website for ongoing and upcoming events: http://www.gcvb.org/calendar/ .
Stephanie Steele
Monday, April 19, 2010
How to talk to a lunatic.
Sometimes I write this blog for therapy. This may be one of those times.
Every now and then I've got an opposing counsel that is beyond the pale. They are either hostile just for the sake of being hostile (I usually figure they have a very unhappy life), or just stupid beyond belief. I always wonder how they passed the bar.
Right now I've got an opposing counsel who qualifies in both departments. She's mean and dumb.
Let me be clear. Most opposing counsel are good people, empathetic, intelligent and competent, but all opposing counsel are not cut from the same cloth. This one seems to be cut from cheese cloth.
So I'm trying to figure out how best to deal with her.
She likes to blast us with letters full of hyperbole and bile. Sometimes I'm tempted to respond, but I know too well where that leads. Since lawyers bill by the hour, we should be exceptionally conscious that every moment advances our client's cause, not our own. I've observed many episodes of hostile letter being met by hostile letter until letter after letter is descending to little more than flame throwing and name calling, then the attorney bills the client $3,000.00 for the joy of it all. My firm doesn't do that, but some lawyers do. This one does it in triplicate.
You can't talk to her. There is nothing new under the sun that you will ever tell her because she already knows it all. And what's amazing is that she has a direct line to the deity or she is the deity because she knows fact from fiction, truth from falsity, bonafides from (here's the part where I cursed)! There is no objective information you could share with her because if it doesn't fit her pre-existing paradigm, the information becomes like water off a duck's back or quicksilver to its source. She can't learn. She can't improve. She really can't advance her cause because she's so damn dense.
She is physically incapable of coming to an agreement. She argues for the sake of argument, her client be damned. Where most people would begin a conversation with a pleasantry, she starts off with invective. If you found a nice bone in her body, she would have it surgically removed!
Perhaps you know someone like that.
So I stay below the radar, taking it all in stride, biding my time, until it is show time.
So, how do you talk to a lunatic? In my business, I talk to them in court, when it matters.
Yeah, that was therapy.
Let the games begin.
Michael Manely
Every now and then I've got an opposing counsel that is beyond the pale. They are either hostile just for the sake of being hostile (I usually figure they have a very unhappy life), or just stupid beyond belief. I always wonder how they passed the bar.
Right now I've got an opposing counsel who qualifies in both departments. She's mean and dumb.
Let me be clear. Most opposing counsel are good people, empathetic, intelligent and competent, but all opposing counsel are not cut from the same cloth. This one seems to be cut from cheese cloth.
So I'm trying to figure out how best to deal with her.
She likes to blast us with letters full of hyperbole and bile. Sometimes I'm tempted to respond, but I know too well where that leads. Since lawyers bill by the hour, we should be exceptionally conscious that every moment advances our client's cause, not our own. I've observed many episodes of hostile letter being met by hostile letter until letter after letter is descending to little more than flame throwing and name calling, then the attorney bills the client $3,000.00 for the joy of it all. My firm doesn't do that, but some lawyers do. This one does it in triplicate.
You can't talk to her. There is nothing new under the sun that you will ever tell her because she already knows it all. And what's amazing is that she has a direct line to the deity or she is the deity because she knows fact from fiction, truth from falsity, bonafides from (here's the part where I cursed)! There is no objective information you could share with her because if it doesn't fit her pre-existing paradigm, the information becomes like water off a duck's back or quicksilver to its source. She can't learn. She can't improve. She really can't advance her cause because she's so damn dense.
She is physically incapable of coming to an agreement. She argues for the sake of argument, her client be damned. Where most people would begin a conversation with a pleasantry, she starts off with invective. If you found a nice bone in her body, she would have it surgically removed!
Perhaps you know someone like that.
So I stay below the radar, taking it all in stride, biding my time, until it is show time.
So, how do you talk to a lunatic? In my business, I talk to them in court, when it matters.
Yeah, that was therapy.
Let the games begin.
Michael Manely
Thursday, April 15, 2010
She took my husband.
As if he were a trout.
A North Carolina jury awarded an ex wife $9 million for alienation of affection against her ex husband's mistress. Now that's something. And I suppose it could take the sting out of betrayal. Maybe?
Here's the catch, the mistress didn't show for trial. That means that the ex wife was all alone, telling her side only. The mistress claimed she didn't know about the jury trial. All of that will be sorted out in Motions and Appeals.
And of course the mistress doesn't have $9 million and probably won't have it any time soon. The ex wife said she's using the lawsuit to send a message about extramarital affairs. "You don't go after married men and break up families, " the ex-wife said.
Georgia, like North Carolina, recognizes a tort of alienation of affection.
Even though the law is on the books, it is seldom pursued. I'm surprised at the North Carolina jury, even in the mistress' absence. Juries in Georgia tend to lend a cynical eye to most matters matrimonial. Georgia juries tend to take a rather realistic view that the husband is not a trout that can be snatched, unknowingly and unwillingly from the swift waters of marital bliss. A mistress doesn't break up a family. A wandering spouse does.
"She didn't take what was yours and it probably wasn't worth much anyway," seems to be the jury's attitude.
This is not to say that under the right circumstances and with the right jury and with a complete absence of opposition, a Georgia jury couldn't return a similar verdict. I just wouldn't hold my breath.
The financial damage done to the ex-wife is sought in the divorce itself, though not from a tort standpoint where you get damages from pain and suffering. (If divorcing spouses could get pain and suffering endured in a marriage it would be a very different world.) The model is more contractual or business related. You get a portion, usually a good portion, of what the marriage is worth, the holdings of the partnership. Under the right circumstances, you can get alimony to make up for the lost income to the household. (See other blog entries for more explanation on this.)
Every so often I am asked the alienation of affection question. It can't help but come up in an adulterous setting. But I focus back on the marriage, its dissolution, its assets, and the client looking for happiness that probably had been long gone from the relationship anyway. I discourage tilting at windmills.
Still, I must confess, if $9 million is out there somewhere from some paramour, I'm open to it.
Michael Manely
http://abcnews.go.com/Business/woman-sued-affair-9m-verdict-thrown/story?id=10209682
A North Carolina jury awarded an ex wife $9 million for alienation of affection against her ex husband's mistress. Now that's something. And I suppose it could take the sting out of betrayal. Maybe?
Here's the catch, the mistress didn't show for trial. That means that the ex wife was all alone, telling her side only. The mistress claimed she didn't know about the jury trial. All of that will be sorted out in Motions and Appeals.
And of course the mistress doesn't have $9 million and probably won't have it any time soon. The ex wife said she's using the lawsuit to send a message about extramarital affairs. "You don't go after married men and break up families, " the ex-wife said.
Georgia, like North Carolina, recognizes a tort of alienation of affection.
Even though the law is on the books, it is seldom pursued. I'm surprised at the North Carolina jury, even in the mistress' absence. Juries in Georgia tend to lend a cynical eye to most matters matrimonial. Georgia juries tend to take a rather realistic view that the husband is not a trout that can be snatched, unknowingly and unwillingly from the swift waters of marital bliss. A mistress doesn't break up a family. A wandering spouse does.
"She didn't take what was yours and it probably wasn't worth much anyway," seems to be the jury's attitude.
This is not to say that under the right circumstances and with the right jury and with a complete absence of opposition, a Georgia jury couldn't return a similar verdict. I just wouldn't hold my breath.
The financial damage done to the ex-wife is sought in the divorce itself, though not from a tort standpoint where you get damages from pain and suffering. (If divorcing spouses could get pain and suffering endured in a marriage it would be a very different world.) The model is more contractual or business related. You get a portion, usually a good portion, of what the marriage is worth, the holdings of the partnership. Under the right circumstances, you can get alimony to make up for the lost income to the household. (See other blog entries for more explanation on this.)
Every so often I am asked the alienation of affection question. It can't help but come up in an adulterous setting. But I focus back on the marriage, its dissolution, its assets, and the client looking for happiness that probably had been long gone from the relationship anyway. I discourage tilting at windmills.
Still, I must confess, if $9 million is out there somewhere from some paramour, I'm open to it.
Michael Manely
http://abcnews.go.com/Business/woman-sued-affair-9m-verdict-thrown/story?id=10209682
Wednesday, April 14, 2010
Do you have anything in crimson?
What is it? The time on task, the integrity of the work, the "taking it to a whole new level" thing?
I'm talking about nuance. Everywhere I look these days its is all about nuance. And I am totally okay with it. I like it. I work within nuance. I am nuance's main man. I dig that space. (Okay, maybe that last statement was a bit extreme.)
So much of my work is neck deep in nuance. There are subtleties to each turn, each eddy, each choice taken, each phrase uttered, each proposition proposed. It is an intesive diplomatic exercise. The State Department would be proud.
How do you work a case? How do you further the client's objectives? Do you ram in like a steamroller, flattening everything in your path? Is Blitzkrieg the best approach in a family setting? I don't think so, not normally and hardly ever. It's all in the approach, the subtle approach, the nuance.
In litigation you have to dot your i's and cross your t's. This is also exceptionally true in family law. But family law is far, far more than just litigation. True, you better know how to litigate with the best of them, up to the task of trying a case in the Old Bailey, but you also better know how to avert disaster at the Suez Canal. You've got to talk them off the ledge, coax them to the negotiating table and leave them happy that they ever met you. You've got to create the solution that moves everyone forward. No small feat.
So, is it the time I've been on this task, the integrity of my work or my taking it to a whole new level? Like surfing, I think it is all of the above. Like fine wine, it just gets better with age. Like... oh, you get the point.
In short, nuance is my life.
It's hard work. It is certainly tricky work. But it is exceptionally rewarding work. No nuance there.
Michael Manely
I'm talking about nuance. Everywhere I look these days its is all about nuance. And I am totally okay with it. I like it. I work within nuance. I am nuance's main man. I dig that space. (Okay, maybe that last statement was a bit extreme.)
So much of my work is neck deep in nuance. There are subtleties to each turn, each eddy, each choice taken, each phrase uttered, each proposition proposed. It is an intesive diplomatic exercise. The State Department would be proud.
How do you work a case? How do you further the client's objectives? Do you ram in like a steamroller, flattening everything in your path? Is Blitzkrieg the best approach in a family setting? I don't think so, not normally and hardly ever. It's all in the approach, the subtle approach, the nuance.
In litigation you have to dot your i's and cross your t's. This is also exceptionally true in family law. But family law is far, far more than just litigation. True, you better know how to litigate with the best of them, up to the task of trying a case in the Old Bailey, but you also better know how to avert disaster at the Suez Canal. You've got to talk them off the ledge, coax them to the negotiating table and leave them happy that they ever met you. You've got to create the solution that moves everyone forward. No small feat.
So, is it the time I've been on this task, the integrity of my work or my taking it to a whole new level? Like surfing, I think it is all of the above. Like fine wine, it just gets better with age. Like... oh, you get the point.
In short, nuance is my life.
It's hard work. It is certainly tricky work. But it is exceptionally rewarding work. No nuance there.
Michael Manely
Tuesday, April 13, 2010
The Gwinnett Mediation Process - Behind Closed Doors.
Tonight's entry is brought to us by Senior Associate, Stephanie Steele.
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
__________________________________
Earlier this month, I wrote about the steps leading up to mediation. Today, let’s take a look inside the mediation room...
Once both parties and their attorneys sit down with the mediator, the first order of business is to go over the guidelines for mediation. Some of the guidelines are:
a. Information shared during mediation is confidential and privileged to foster open and honest communication and negotiation.
b. Your mediator will not disclose any information learned during the mediation without the express permission of the parties. Confidential information you share in a private meeting (caucus) with your attorney and the mediator will not be divulged to the other party or attorney without your consent.
c. The exception to this rule is that mediator is obligated to report crimes that occur during mediation, imminent threats of bodily injury or abuse to a child or a party and any such other matters the law requires the mediator to report.
d. You cannot call the mediator as a witness in your case, if the case goes to trial. You cannot subpoena any written materials developed for or in the course of mediation.
e. The mediator’s role is to assist the parties in reaching an agreement, not to give legal advice. Your attorney is there to provide legal advice.
f. In order for the mediation process to be successful, all parties need to participate in good faith and work toward resolution of the issues.
g. Payment of the mediator is due at the close of the mediation session. Prior to mediation, your attorney should inform you of the mediator’s hourly rate. Usually, the parties evenly divide the mediator’s fees. However, alternative arrangements may be made in certain circumstances.
Usually, after the mediator and parties review the guidelines for mediation, each attorney will give an opening statement outlining the issues in the case. The attorneys may make an opening settlement offer. Alternatively, the mediator may meet with only one side and then with only the other side to get an understanding of what the issues are and what each side is willing to offer in settlement.
Mediators typically relay offers of compromise to the other party in the case, offer ideas regarding possible counteroffers, and assist you and your attorney in analyzing the settlement offers and counteroffers. When the mediator or one of the parties believes there is nothing further to be gained by the process, the mediation will be ended. The time spent in mediation varies, but generally lasts from two to five hours.
At the conclusion of mediation, the mediator has both parties sign a document stating the mediation ended in an impasse (no agreement), there was a partial agreement or there was a full agreement reached.
Sometimes we reach a full agreement, sometimes a partial agreement and sometimes we need the Court to decide the issues. If an agreement is reached at mediation, the mediator will often hand write the main areas of agreement. One of the attorneys will then draft a formal agreement for both parties to sign.
You should expect the formal Settlement Agreement to include more than just what was agreed to at mediation. There are a number of standard legal provisions in common use by attorneys that will be included in the formal Agreement, even though not specifically addressed at mediation.
If there is a provision you don’t understand, ask you attorney to explain it. The Agreement binds you and you should fully understand its impact on you and your case.
Mediation is an informal process that very often results in full resolution of cases. You should think of it as a great opportunity to resolve your case without further court intervention, higher attorney fees and more energy and time invested. Even if you don’t reach an agreement, you and your attorney will gain valuable insight into the goals, strategy and evidence of the other side. This will enable you and your attorney to better prepare for the final hearing.
I have often heard judges say that the parties know their case best. An agreement you reach with the opposing party will be more tailored to your specific situation and will be more satisfying to all parties involved than any Order the court could devise.
Hopefully, demystifying the process will help you focus on working through the issues to reach a mutual agreement tailored to fit you.
Stephanie Steele
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
__________________________________
Earlier this month, I wrote about the steps leading up to mediation. Today, let’s take a look inside the mediation room...
Once both parties and their attorneys sit down with the mediator, the first order of business is to go over the guidelines for mediation. Some of the guidelines are:
a. Information shared during mediation is confidential and privileged to foster open and honest communication and negotiation.
b. Your mediator will not disclose any information learned during the mediation without the express permission of the parties. Confidential information you share in a private meeting (caucus) with your attorney and the mediator will not be divulged to the other party or attorney without your consent.
c. The exception to this rule is that mediator is obligated to report crimes that occur during mediation, imminent threats of bodily injury or abuse to a child or a party and any such other matters the law requires the mediator to report.
d. You cannot call the mediator as a witness in your case, if the case goes to trial. You cannot subpoena any written materials developed for or in the course of mediation.
e. The mediator’s role is to assist the parties in reaching an agreement, not to give legal advice. Your attorney is there to provide legal advice.
f. In order for the mediation process to be successful, all parties need to participate in good faith and work toward resolution of the issues.
g. Payment of the mediator is due at the close of the mediation session. Prior to mediation, your attorney should inform you of the mediator’s hourly rate. Usually, the parties evenly divide the mediator’s fees. However, alternative arrangements may be made in certain circumstances.
Usually, after the mediator and parties review the guidelines for mediation, each attorney will give an opening statement outlining the issues in the case. The attorneys may make an opening settlement offer. Alternatively, the mediator may meet with only one side and then with only the other side to get an understanding of what the issues are and what each side is willing to offer in settlement.
Mediators typically relay offers of compromise to the other party in the case, offer ideas regarding possible counteroffers, and assist you and your attorney in analyzing the settlement offers and counteroffers. When the mediator or one of the parties believes there is nothing further to be gained by the process, the mediation will be ended. The time spent in mediation varies, but generally lasts from two to five hours.
At the conclusion of mediation, the mediator has both parties sign a document stating the mediation ended in an impasse (no agreement), there was a partial agreement or there was a full agreement reached.
Sometimes we reach a full agreement, sometimes a partial agreement and sometimes we need the Court to decide the issues. If an agreement is reached at mediation, the mediator will often hand write the main areas of agreement. One of the attorneys will then draft a formal agreement for both parties to sign.
You should expect the formal Settlement Agreement to include more than just what was agreed to at mediation. There are a number of standard legal provisions in common use by attorneys that will be included in the formal Agreement, even though not specifically addressed at mediation.
If there is a provision you don’t understand, ask you attorney to explain it. The Agreement binds you and you should fully understand its impact on you and your case.
Mediation is an informal process that very often results in full resolution of cases. You should think of it as a great opportunity to resolve your case without further court intervention, higher attorney fees and more energy and time invested. Even if you don’t reach an agreement, you and your attorney will gain valuable insight into the goals, strategy and evidence of the other side. This will enable you and your attorney to better prepare for the final hearing.
I have often heard judges say that the parties know their case best. An agreement you reach with the opposing party will be more tailored to your specific situation and will be more satisfying to all parties involved than any Order the court could devise.
Hopefully, demystifying the process will help you focus on working through the issues to reach a mutual agreement tailored to fit you.
Stephanie Steele
Monday, April 12, 2010
Life During Divorce
Tonight's entry is authored by Elizabeth Marum.
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
____________________________
It is tempting to throw your hands in the air and give up on yourself when going through a divorce. It is easy to get overwhelmed and let your divorce become your life.
But your divorce is not your life. You still have control over your immediate world. You have a job. You have a car. You have the day-to-day chores and responsibilities that can help keep you feeling sane. It is Springtime in Atlanta and the weather begs for you to go for a hike, bike ride, or neighborhood festival. Try to keep up with the activities that used to be habit.
It is important to keep hold of these controllable elements of your world during divorce proceedings. Don’t walk away from your job. Don’t give up on the job search. Don’t forget you have family and friends who care about you. Do keep up with your bills. Go out and enjoy some time with friends.
Not only is there likely to be a Standing Order issued by the Court that requires you to keep the status quo (by not shutting off the power in the marital home or cancelling insurance), but keeping up with those things that make you who you are will help you keep a line between your divorcing world and the you that must exist at the end of it. If you don’t, the “divorcing” you will linger long after the judge grants the Final Decree.
Elizabeth Marum
http://www.allfamilylaw.com/CM/Custom/Attorneys.asp
____________________________
It is tempting to throw your hands in the air and give up on yourself when going through a divorce. It is easy to get overwhelmed and let your divorce become your life.
But your divorce is not your life. You still have control over your immediate world. You have a job. You have a car. You have the day-to-day chores and responsibilities that can help keep you feeling sane. It is Springtime in Atlanta and the weather begs for you to go for a hike, bike ride, or neighborhood festival. Try to keep up with the activities that used to be habit.
It is important to keep hold of these controllable elements of your world during divorce proceedings. Don’t walk away from your job. Don’t give up on the job search. Don’t forget you have family and friends who care about you. Do keep up with your bills. Go out and enjoy some time with friends.
Not only is there likely to be a Standing Order issued by the Court that requires you to keep the status quo (by not shutting off the power in the marital home or cancelling insurance), but keeping up with those things that make you who you are will help you keep a line between your divorcing world and the you that must exist at the end of it. If you don’t, the “divorcing” you will linger long after the judge grants the Final Decree.
Elizabeth Marum
Wednesday, April 7, 2010
Out with the Old, In with the New
Tonight's Blog Post is by Associate, Jeremy Abernathy. Click Here to learn more about Jeremy.
Our firm is located in the heart of the Marietta Square. Our office has great views. I see the hustle and bustle of city life. I see Glover Park and witness the flowers blooming in Spring.
I also hear the racket from the Marietta City construction taking place. The noise is loud, pounding, and continuous. Recently, however, the usual banging that I hear had a different ring to it. The noise was high- pitched and screeching- comparable to a cat slowing etching their claws into a chalkboard.
I got up and peered out the window. I noticed long sharp rails being yanked from about four feet below the surface (my measuring point was a 6 foot tall man whose head was about two feet above the pavement).
I called my fellow associate, Elizabeth Marum, to take a look. She, immediately suspected that the objects were trolley rails. (Elizabeth has vast miscellaneous knowledge!)
Mr. Manely, nearby as we were briefing and updating him on cases and hearings, confirmed Elizabeth’s suspicion and even provided the history of the trolley rails. (In the early 1900's the Atlanta trolley system extended to Marietta and the trolley turned around by circling the park.)
This journey back in time reminded me of horror stories I have heard about the history of Marietta regarding racial and religious intolerance. I must say that it is gratifying to see Marietta in it’s current state. I see all races and nationalities entering in different restaurants, movie theaters, and other establishments. I see diversity embraced. I see change welcomed.
It’s now one week later and I notice that the large hole from which the trolley lines were being pulled has been patched up. Cars pass over the hard, re-surfaced planes covering the holes.
Family law is like Marietta construction and Marietta history in this respect. The old wounds between opposing parties are deep and bruising (sometimes literally). The parties have contentious histories. The sundry horror stories outnumber the words in a Harry Potter or New Moon novel. Thus, construction (or reconstruction) is necessary.
As counsel for our clients, we must “do construction” in our clients’ lives. After the excavation of past wounds (the post-filing, pre-trial discovery process), we must lay the road for productive, fruitful travel (a successful settlement agreement or judicial decision).
At The Manely Firm P.C. we take pride in getting our clients off to the best start possible on their new life journeys. We care about the strategic, intelligent “re-paving” we do for our clients’ futures. We welcome re-constructing the “messy family law issues.”
Tuesday, April 6, 2010
Gwinnett Mediation Process – What is it? How do we get there?
learn more about Stephanie.
You may have heard the phrase “Alternative Dispute Resolution” or “ADR”. This simply refers to a variety of methods used to resolve legal cases without a Judge hearing and deciding the case.
As the Gwinnett Superior Court ADR’s website aptly explains, “There are three primary processes [of alternative dispute resolution] available. Mediation, the most requested method of ADR in Gwinnett County, is a process in which a neutral third party facilitates settlement discussions between parties in conflict. Case evaluation is a process in which an experienced attorney gives advice on the strengths and weaknesses of each party's position and may make an assessment as to how a judge or jury might react in the case. Arbitration is more similar to a trial. The arbitrator issues a decision on the case following an abbreviated hearing under informal rules of evidence.”
In family law, we use mediation almost exclusively as an alternative way of resolving cases. In some Metro-Atlanta counties, you are required to attend mediation before the court will allow you to schedule a hearing. In other counties, it is an optional process. In still other counties, such as Gwinnett, the Judge decides whether domestic cases assigned to him/her must go to mediation prior to a hearing.
Once you know your case will go to mediation, the next step is to select a mediator. Every Metro-Atlanta county has a list of approved domestic mediators. These mediators are often, but not always, attorneys with at least 5 years practice in domestic cases. They are all trained extensively in conflict resolution. Don’t be fooled, though, as with most professionals, not all mediators are created equal!
In selecting a mediator, rely on your attorney’s advice. She or he knows you, your case, the opposing attorney, possibly the opposing party and the mediator. When choosing a mediator, it is important to keep in mind the personalities and proclivities of each person who will be involved.
For example, if you are a father seeking primary custody of your children, you probably would not want to use a mediator who advocates mothers obtaining primary custody. Another example would be if you are a shy person, it may be difficult to work with a mediator who has a very strong personality. Again, though, it depends on the individuals involved.
If the parties cannot agree on a mediator, the Judge will assign one.
When you arrive for mediation, check in with the friendly folks in the ADR office and let them know you’re there. They will wait for both attorneys, both parties and the mediator to arrive and then lead everyone to a private room for the mediation.
Later this week, I’ll post another blog explaining what exactly goes on behind the closed doors of mediation.
For more information on Gwinnett County’s ADR processes, visit their website at Gwinnet County ADR
Here are a few other helpful ADR websites:
Cobb County ADR
Fulton County ADR
DeKalb County ADR
Monday, April 5, 2010
Teach your children well.
I'm going to get a little preachy tonight, but at least I'll be brief.
We all know we are modeling for our children. How we behave is how we best express that we want them to behave. "Do as I say and not as I do," doesn't work as well as follow the leader.
Because our children model us, think about your life. Are you living the life you want your children to live? Why would you expect them to live any other way? It was good enough for you.
Have a lot of drama? Expect drama centered kids. Hate your spouse? Expect your daugher to find a man just like the one who married dear old mom. Tolerate your spouse at best? Expect your son to find a woman he can passibly live with. No love lost there.
I find it much more fulfilling, rewarding and positively enabling, to live the life you want your kids to emulate. They're going to use you as a standard anyway. You might as well make sure it is a good one.
Michael Manely
We all know we are modeling for our children. How we behave is how we best express that we want them to behave. "Do as I say and not as I do," doesn't work as well as follow the leader.
Because our children model us, think about your life. Are you living the life you want your children to live? Why would you expect them to live any other way? It was good enough for you.
Have a lot of drama? Expect drama centered kids. Hate your spouse? Expect your daugher to find a man just like the one who married dear old mom. Tolerate your spouse at best? Expect your son to find a woman he can passibly live with. No love lost there.
I find it much more fulfilling, rewarding and positively enabling, to live the life you want your kids to emulate. They're going to use you as a standard anyway. You might as well make sure it is a good one.
Michael Manely
Subscribe to:
Posts (Atom)
