Thursday, July 22, 2010

Long Term Consequences

I've recently worked on a matter that highlights a critical difference in different firm's philosophies.

The matter was a modification action.  A modification is a post divorce action where one ex spouse claims that there has been a "material change in circumstances," so much so that whatever was ordered in the divorce, should now be changed.  A modification action is most often either a modification of child custody or a modification of child support.

This case was a modification of child support.  The opposing party contended that the parties' incomes had materially changed so that he should now pay less child support. 

As I worked through the basis of the opposing party's argument and evidence his case seemed piddly.  He had nothing much to argue about with very little reason to bring an action and very little likelihood of success.

As I worked with the client, learned the history of the parties and got down to the core issues, I figured out the motivation of the suit, and it wasn't financial.

In her divorce, my client had hired a rather infamous attorney who practice what I call scorched earth litigation.  No one survived his wrath in the courtroom.  His litigation style felt like the Harry Potter characters describe the dementors.  My client hired this fellow because she thought her soon to be ex was difficult and stubborn and needed an aggressive attorney to bring her divorce to a successful conclusion.  What she wanted was a firm hand.  What she got, apparently, was armegedon.

As my client expressed, you never knew what this attorney would say in the courtoom, but she quickly learned it wasn't going to be good.  She found herself cringing for her in laws and husband's friends as they endured this counsel's harsh, cruel onslaught. 

As she reports, her husband, now her ex, received a much worse result if he'd just been reasonable.  I submit, so did she.  For ever since the divorce, the ex has been constantly cantankerous, mean, vengeful, spiteful, and sometimes even wicked in his treatment of his ex wife, my client.

As I came to realize, the opposing party still felt brutalized by the divorce, by the scorched earth counsel.  The opposing party was vengeful allright.  He wanted my client's metaphoric blood and his thirst for vengeance seemed to grow stronger with each passing year.

This ex, this opposing party, was still battling through the beating he'd received in the courtroom. This man had become a bit of a monster, where as before the divorce he was just stupidly difficult.
Scorched earth can be a succesful strategy for attorneys.  We look tough; we act tough; we beat up the opposition and then we walk away.  At the end of the case whether its divorce, modifcation or contempt, we just walk away.  But it's our clients who live with the aftermath.  They can't walk away.  They can't escape the harm we've caused.  Good strategy for the attorney, bad strategy for the client.

Aggressive representation sounds serious; it sounds firm; it sounds like it commands respect.  But I've found that far more often than not, aggressive representation yields negative consequences for the client for years to come.  Parents, already torn assunder by the nature of divorce itself, become bitter enemies, ever more distrustful, never fully enjoying the moments with their children without looking over their shoulder with cynical eyes.  With the additional pain inflicted by scorched earth, or aggressive representation, the pain endures and grows.  The healing takes much, much longer, if it can ever occur at all.

Aggressive representation is unnecessary and counter productive.  If your position is true, if your cause is just, the truth will out.  Nastyness only clouds your merits.

In the matter I'm writing about, as his ex's new counsel, I worked toward getting the opposing party past that divorce trial and into the 21st Century.  While he was successful at harassing his ex a little longer just by filing his modification action, he wasn't successful at lowering his child support.  But, just as importantly, I helped moved this couple along a little bit further toward re-forming their relationship as good parents to their children.

Objectively and subjectively that's the right a result.  Those are long term consequences that parents can live with. Those are long term consequences I can espouse.

Michael Manely

Wednesday, July 21, 2010

The Dog Days of Summer

We are mere weeks away from the beginning of school and, thereby, the end of summer.  But as I sit here tonight in the sweltering summer weather, here in the hottest summer ever in recorded history, school, and with it the promise of autumn and cooler temperatures, seem forever away. 

Families will soon enough return to the fast paced life of packing the kids off to school, making PTSA meetings and Parent/Teacher meetings and class events.  Soon enough parents will be back to reviewing home work and wondering how projects get lost before they get turned in.  Soon enough children will be back to early bed times (initially before dark) and extremely early rise times (maybe initially still after dawn?)  Soon enough we will make sure the uniform is washed or just the right outfit is ready to go for the next day. 

But right now families are wrapping up their summer, taking their last vacations, winding down the week long camps for the children.  Within mere days we will be "back to school" shopping, meeting teachers, and standing astonished as our young ones go out that door again into a new grade, another year behind them and another year closer to being gone from our loving grasp.

But now, it's hot and it's steamy and it's lazy.  And it's summer.  And it's great.

Michael Manely

Tuesday, July 20, 2010


Tonight's installment comes courtesy of our own Elizabeth Marum.


I am amazed at the wonder that is online social networking.  Between the constant updates and reminders of friends near and far, new and old, it makes you feel connected and “caught up” with everyone.  Until one day a nostalgic run through an old online photo album reminds you that you really aren’t “caught up” with your best friend from college but have been comforted into feeling in touch by regular “status” updates.  In fact, you haven’t talked to her in two years!

Whether you are a Myspace, Facebook, Hi5, Twitter or whatever networker, there are inherent dangers to the use of these networks that aren’t advertised in the marketing materials.  I think you know what I mean.

These dangers are becoming particularly apparent in the divorce cases we work in our offices.  The obsession with digging into our partners, spouses, girlfriends, boyfriends and family member’s “secret” dealings are no longer limited to just searching phones, texts and emails, but our desire to find more now has a bounty of information and wasted time in the online social networks.  The casual “friending” atmosphere has lead us to a world where we easily “friend” unknowns, barely knowns, friends of friends of friends of friends, or worse... the dreaded exes.

Ex-wifes, ex-husbands, ex-girlfriends, ex-girlfriends, ex-lovers or even, the ex-best friend (of whom your spouse has always had his/her suspicions!).

Why we think that we can somehow “friend” the exes who tore at our souls and left empty shells recovering for weeks, months or years is a phenomenon of the online world.  While it is sometimes the case that exes become friends and actually speak or see each other in their new (real) worlds, it is even more frequent and much easier for us to “friend” our exes in the safe online arena where we don’t have to see them in real life.  I argue that this comes with risk.  Risk of getting “caught”.

By caught, I don’t just mean our current love interest, but “caught” by our own potential to obsess, frequently follow updates and even, yes, cyber stalk their pages for evidence of their lives outside the internet.  Even in the most innocent of circumstances, if someone you love sees that you are “now friends with” your ex, there is bound to be fall out. Chances are, without the Spacebook medium we wouldn’t even know what we were missing, probably wouldn’t think about it and wouldn’t care that we didn’t think about it much at all.

We’ve all heard the warnings about the dangers of the internet social world and the downfall of good old telephone, or (shocker!) in-person, communication.  We should probably all delete our online social networking sites or cutdown our “friends” list to people that you actually know and communicate with off the internet.  There are plenty of “how to’s” on deleting your Facebook, Myspace, etc. out there.

But you probably won’t.

So if you are keeping your social networking account, here are a few pointers:

If going through a divorce, separation or otherwise, don’t verbally attach, debase, or slander your spouse.
Do keep your personal information personal.  Surely, all 587 of your friends don’t NEED to know how much of a harpy your soon-to-be-ex-wife is.
Don’t advertise that you are not at home or out of town (not just thieves are looking for you, but your estranged spouse may want revenge).
Realize that everyone knows who and when you friend someone or when you comment, so you may want to be open and honest with your new wife about your recent “friending” of your ex-wife (with whom you do not speak).
Do not admit that you participated in an otherwise unmentionable activity with your husband’s best friend in an angry wall post.

Because there is probably someone stalking your page and they WILL capture that screen, save and print the evidence before handing it to their divorce attorney.

Elizabeth Marum

Monday, July 19, 2010

Behavior Modification

Dear Reader,

The judges don't dislike you.  They don't want to punish you.  They don't want to make you cry.  They just want to change your behavior.

I don't know if I'll ever cease to be amazed by mere mortals' efforts to win the battle against a judge on the bench.  The battle takes many forms.  Some folks are down right antagonistic.  They'll attempt to argue with the judge.  "You can't do that to me," or some similar phrase will be cast out miliseconds before the judge asserts unrivaled control over the courtroom and, more importantly, over the miscreant who issued the ill conceived challenge.  And you thought the fourth of July had fireworks.

A craftier sort is the gamesman.  He thinks he's smooth.  (I write "he" but this is equally applicable to "she.")  He pretends he didn't understand what the judge told him to do, or his answer is far from unequivocal.  He is certain he is smarter than all of us and certainly smarter than the judge.  Of course, one could ask, "if he's so smart, why is he the one in jail on contempt?" 

The gamesman often thinks he's cute.  He likes to mince words.  He feigns confusion over the clearest of orders.  He's not oppositional, just obstinate.  His antics meet with no more success than the antagonist.

A judge might get riled by the antagonist, but seldom is really riled at the gamesman, though you wouldn't know it from observation alone.  In either event, the judge's chief and often sole aim is to modify behavior.  The judge wants compliance with her order.  She wants people to do what she told them to do.  Any resistence is futile.

This is not to say that there are no legal remedies to right an error.  But fighting with the judge or believing you can outwit her are not two successful strategies.  They are strategies for a quick one way ticket to an 8 x 12 gray room with two bunks and a guy named Tiny who is anything but.

So, if your attorney advises you to pay the $2.00 and go home, pay the $2.00 and go home.  Home is far more comfortable than the alternative. Unless, of course, you need a new best friend named Tiny. 

Michael Manely

Wednesday, July 14, 2010

The folks I work with.

I wanted to write tonight about the people in my firm. 

The people I get to work with are excellent people.  Everyday they labor for hours over our clients' trials and tribulations, sorting through the volumes of information, sifting down to the information we need to make strong cases, to accomplish justice.

The people I get to work with are compassionate.  They care deeply about our clients.  We rise and fall with our clients.  We are invested in their successes.  We are there to work through the trials and tribulations. We are a part of the community cheering their childrens' triumphs.

The people I get to work with are pros.  They know their stuff.  They can dig in, toe to toe with anybody, and ferret out the right information leading to the right result.  They are legal eagles, par excellence.

So, tonight I wanted to send a shout out to Stephanie, Jeremy, Elizabeth, Nora, Alyssa, Robyn, Gale, Loven, Jessica, Bill and last, but definitely not least, Lucy.  I wanted to take a moment in time to acknowledge their hard work, their compassion, their commitment to our clients.

And my thanks would be far from complete without expressing the greatest of appreciation for my wife, our business manager and future managing partner (once she finishes law school at Georgia State) Shelia, without whom, I think none of this would be possible.

Thank you all.  It is one of life's greatest privileges to work with such an excellent group of talented people.

Michael Manely

Tuesday, July 13, 2010

In the cross hairs.

It's one of the things that I love about this practice.

Recently, at a big, drawn out trial, I had battled my opposing counsel to the point where the judge told counsel that she did not have a case, that she had tried the case so poorly that she had presented nothing for the judge to rule on.

This is a significant difference between types of family law counsel.  Some are pretty good at family law substantive issues but can't try their way out of box.  Others of us realize that if you're going to be in court three to five times a week, you better be damned good at it.

So here was opposing counsel without a case, no way of winning, totally lost, destroyed, on the ropes with her client's life flashing before her eyes.

And that's when the magic happened.  Up until that point opposing counsel and the opposing party had absolutely refused any meaningful discussion of settlement.  But, now that they were in the cross hairs, my client proposed a perfectly fair settlement.  With the judge's excellent help, the opposition finally realized they were in no position to refuse it.

And there, half way into the trial, the case settled, even when the opposing party would have been like a lamb to the slaughter. 

I was proud of my client.  He realized that being parents, being family, even post divorce, trumps victory.

We had them in the cross hairs, but he didn't pull the trigger.  He lowered and holstered his arms.

Michael Manely

Monday, July 12, 2010

Child Appropriate Killing

The other night, I was asking my 21 year old about whether he would recommend "Iron Man" for family viewing.  Our family includes our seven year old.  "Sure," he replied, "I mean, its got some violence but only child appropriate killing."

That phrase immediately struck me.  What does that mean?  It means what it says, "Child Appropriate Killing." 

We didn't rent that movie. 

A few days later, our seven year old was watching a movie we purchased for him some months before.  He'd seen it several times.  I stopped to watch a few minutes as I passed through the den.  It was "Spy Next Door" with Jackie Chan.  In the scenes I saw, some bad guy had Chan and some children tied up.  He was pointing a gun at Chan's head threatening to kill them all.  Chan got loose and beat up the bad guys.  Just a few scenes later, another bad guy had a gun pointed a Chan's head telling him that the bad guy will do Chan a favor;  the bad guy will kill Chan first so that Chan doesn't have to watch the bad guy killing the kids.

This is supposed to be a kids' movie.  It was marketed as a kids' movie.  And our kids are supposed to process bad guys killing them?  Is that child appropriate killing?

Some folks will certainly argue that I'm getting all worked up over some harmless violence.  (Now there's an oxymoron if every I heard one.)  That a little dramatic killing or threats of killing doesn't harm anyone. 

There's enough bad stuff in real life that I have no idea why we want to fantasize about more bad stuff.  Is this thanatos at work?  Is this our collective death wish?  Certainly, all our exposure to fantasy violence over the years has not made the crime rate get any better.  Maybe we ought to explore our seemingly constant flirtation with the dark side and give it a long rest, starting with the children.

I'm not asserting "the innocence of child hood."  I'm not saying that the children have to be protected from bad things.  As parents, we do our level best to protect our children from bad things happening to them.  But I am not an advocate of sugar coating the world for the kiddies.  The Gulf Oil Spill?  Bad.  War? Bad.  Murder? Bad.  Not nonexistent, but existent and bad.  And kids have a need and a right to know about that.

I'm not even an advocate of sparing the children of the news of divorce and the particulars as it relates to them.  Many children grow up under far worse conditions.  And the divorce should actually make life better, no more fighting, or just about as brutal,  deathly silence in the home. 

I'm a straight out advocate for sharing reality.

But this fantasy we have, this license we allow to expose ourselves and our children to to mock violence borders on the pornographic.  Our culture is saturated in fantasy violence and plenty to go around for the children, safely rated in the PG variety.  For me, I cannot fathom anything that would constitute child appropriate killing.

Now, enough of tonight's rant.  Me and the family have to get back to watching "Avatar."

Michael Manely

Thursday, July 1, 2010


I am painfully aware that I have taken an unacceptably long hiatus from this blog.  As you can tell, in part from the last post, the events of the month and our trial schedule has kept me occupied and away from this nightly duty.


I once handled a matter that involved a teenage girl who was the bane of her parents' existence.

Of course, many of my cases involve kids.  Usually the questions are who gets the kids, who spends time with the kids, who makes important decisions about the kids?  Often enough the children are involved on some level.  The kids almost always know about custody questions and, particularly if they are of age, often want to have a say. The gal I'm writing about tonight wanted to run the whole show.  She caused great trouble in her parents' divorce and she was quite aware of it.

Somehow, somewhere, the parents had put her in charge.  Everything had to be cleared by her.  What she didn't like, didn't happen.  "How would this be for you, dear?"  "Mommy, I don't like it!"  "Okay, then, we won't do it."  You can imagine. 

So here her parents were divorcing, I presume with her blessing, but she insisted on running that show, too.   And, in little girl fashion, her interference was not marginal, not subtle, but had to be center stage, occupying all energies and manifesting huge crises. 

It was a nightmare.

As time wore on, one parent began to get it, began to try to reign the child in.  The other parent continued to carry out the child's bidding.  Do you want to guess which parent that child wanted to live with?  When a teenager is given a choice between rules and absolute freedom to do what she wants, it is the rare teenager who knows that rules are in her best interest.

But the law gives that teenager a choice.  And judge's are somewhat loathe to deny a teenager's wishes, particularly as they get older. 

So the parent who enforces boundaries loses and of course the child loses.  And the parent who is laissez-faire prevails. 

And yes, sometimes the legal outcome makes no sense.

I think maybe the judges think the child is so far along and too far gone, that telling the child "no" on that particular judgment day, has very little lasting value.  Insofar as the judge, a stranger, can step in and change family dynamics with a solitary judgment is concerned, it would be an exercise in pure hubris for that the judge to believe he would really make a difference.

And so the child is lost, at least temporarily, until the day she is tested, weighed, measured and hopefully on that fateful day, not found wanting. 

We never really know.  Only time will tell. 

I can only hope that time will be kind.

Michael Manely