Monday, January 31, 2011

So Many Questions - Family Law

I've been enmeshed in my practice for so long I sometimes forget how intricate and complicated it can be.  Some days, like today, I meet with a myriad of people who just need to get their questions answered.  They know they are facing a complex situation that therefore feels rather daunting and rather than strike out on their own with the very real chance of striking out entirely, they seek advice from one who has been in the trenches for decades - me.

Sometimes their questions are straightforward, requiring no more than a simple, direct answer that can set their minds at ease and help them chart a clear and safe course for their new direction.  Other times their questions are complex, requiring much give and take to ferret out the nuances that can alter the course of the right answer with the slightest subtlety.

Regardless of questions simple or complex, the questions, and the questioners, are welcome at my firm.  I understand that some attorneys play hide the ball.  "If you want an answer, you have to feed the monkey."  I do understand that approach.  My education and lengthy experience have value.  But I perform no service to my community if I treat my knowledge and expertise like it's off limits to all but a select few with the green in their wallets to unhinge my jaw.

If I kept my knowledge a secret, how would a client ever know that I have any knowledge at all?  I don't see a successful interview concluding, "I know exactly what I would do and if you hire me, I'll tell you."  Suppose the poor client hires that counsel and counsel then spews something idiotic.  I don't see how that works.  Perhaps I'll get a few more decades down the road and decide that potential clients should pay me for their initial visit.  Right now that just seems cheap.

So, if you have a question, come see me.  While I cannot work for free since I'm not independently wealthy, I'll gladly, and I do mean gladly, answer your questions.

Michael Manely

Wednesday, January 26, 2011


I spend many words writing about soon-to-be ex-spouses working together for a common good: the  peaceful dissolution of their marriage.  On these pages I've often advocated moving beyond the emotional entanglements that routinely accompany a marital break up but so very much obstruct a mature approach to custody arrangements, potential support and property division.  But I don't think I've spent much time dwelling on the most reprehensible spouses, the horrid, worst case scenario, the monster who shares your bed but rises each morning from the pits of hell.  In other words, the wicked spouse.

I don't mean the angry spouse, the "hell hath no fury" spouse who seeks retribution for a past mis-deed.  I'm talking about the evil spouse who wants to see you perish for the sheer delight of your demise.  If you don't know this spouse, consider yourself among the extremely fortunate.  You can somewhat imagine them, but only somewhat, for imagination is no substitute to living in the same house, supping over the same table and sharing the same bed with someone who daily, even hourly determinedly seeks your downfall. And the more horrific your downfall, the better.

This spouse has a strategy that is more depraved than you can reasonably contemplate, for reason doesn't enter into it.  To understand this spouse's battle plan, you have to enter into the most cynical, black hearted space you can find within humankind's collective unconscious.  This is the spouse who will summon the police with concocted stories of abuse.  This is the spouse who will lay a trap for the unwary.  This is the spouse who will lie in wait sometimes for years to build the abattoir in which you shall be sacrificed.  This is the spouse who, like an onion, has layers upon layers, each more vile, fetid and diabolical than the last.

But, for those of you who have no knowledge of such a spouse, you need some meat on these bones.

Consider the spouse who decided one day to divorce her husband, only she didn't tell him.  She didn't tell him for over a year.  She used that year to collect her evidence of his purported transgressions.  Behaviors she  condoned, accepted, fostered, and even participate in, she secretly captured for posterity in those thousand words' worth 8x10's.  And when she sprung the trap, she had her price.  She would offer to sell him his soul for far more than 30 pieces of silver.

Consider the spouse who systematically deprived her spouse of his business, his home, even his children, Job style, just to watch him suffer like an ant under the magnifying glass in the brilliant sun of her conniving scheme.  As each element of his security, his identity was stripped from him, she pleasured in his cries every much as if limbs were torn asunder.  She would have watched him slowly die if she could figure out how to do it. In may ways, she did.

Consider the spouse who fathomed and then executed a plan to have her spouse carted off to jail, to be convicted and not seen again for decades, well long enough for her to secure the empire they had created.  And his crime and the evidence to support it fabricated, every bit of it.

The judges are wary of any counsel's claim that the spouse is wicked, that the plot is hollow, that the method is the worst sort of chicanery because that charge is so abused.  I've written about the aggressive lawyer. To her ever droning assertion, each opposing party is a scalawag, either a dead-beat dad or a malicious mom. We once had a well known counsel who had two, pat phrases to apply to opposing parties: whore and whore monger.  The slanderous approach is now an empty rhetorical device which the judge's largely ignore.  So when a spouse is indeed wicked it is a difficult fact to prove to a jaded judge.

But prove it you must.  Prove it to someone.  In the first case cited, It wasn't until I took to the Settlement Conference table top and delivered a rousing rendition of "Molasses to Rum to Slaves," that the matter resolved.  My client was freed without the purchase price demanded by the wicked spouse.  She decided that I was too crazy to allow in Court.

The second case ended with a trial which detailed copious evidence of her mis-deeds.  You would have thought the matter had been tried in the World Court for the effort it took, the investigation required, the meticulous organization and crafting of the presentation of the trial.  Years later and tens of thousands of dollars poorer, justice prevailed.  The wicked spouse was sent out on a rail.

The last case cited ended in a surprising reversal of fortunes because, ultimately, criminals are not that smart.  Indeed a crime had been committed, but my client hadn't done it.  The wicked spouse left enough "fingerprints" on the evidence intended to damn her husband, that the prosecuting authorities began to see the flaws in the greater plan, turned the tables and indicted the master-mind wife.

Given the elaborate means to which these wicked spouses go, I often wonder why they don't cut to the chase and end the relationship Lynn Turner style.  But of course, she got caught too.

So divorce is not a bed of roses.  Sometimes it is a bed of nails.  And if you are married to the wicked spouse, sometimes you have to fight for your freedom.  Sometimes you even have to fight for your survival.  Just know that justice will out, in the end, if you can make it that far.

Cheery post, huh.

Michael Manely

Tuesday, January 25, 2011

Listen to your lawyer!

Of course I would write that.  I'm a lawyer.  But doesn't it make sense?

Most folks hire an attorney figuring that the attorney knows something they don't.  Lawyering, after all, is a specialized field of knowledge with intricate rules and protocol, strategy and timing, so this body of knowledge and practice is not in the public realm any more than the ability to actually split an atom is.

But every now and then somebody is certain they know better than their lawyer.  I once had a medical doctor who was quite sure he knew how to do my job better than me.  So I attended our next meeting in scrubs and told him I was going to remove his appendix.  It got my point across.  The doctor got out of my way and wound up doing quite well.

Kids fresh out of law school know more law than most litigants.  Add to that decades of seasoning and it ought to be hard to convince yourself that you could do better than the guy you've paid several thousand dollars to.  But a few folks still don't get it.

This creates an ethical conundrum for me.  I've argued for several hours with some clients about their decisions that conflict with my advice.  I tell them I see the train wreck coming.  I tell them I see their legal demise.  I show them the better alternative, a successful strategy.  But that strategy does not fit the client's emotional drive to seek and obtain retribution.  "The Judge will set her straight," they might say.  "The Judge won't set her straight.  She will win and she will laugh at you for being such a fool.  Will you feel better then?" I might say.

All lawyers face this problem from time to time.  Some clients see us as a tool for their use to aid them in their on-going quest to vanquish the opposition.  We aren't.  We are problem solvers.  We employ our craft in very creative ways sometimes but it is to accomplish a productive task, not a destructive one. (That's true for most of us, anyway.)

So the ethical conundrum is, after several hours of attempting to persuade the recalcitrant client to follow my well-paid advice, do I give up and watch the coming catastrophe?

Sometimes potential clients ask me if I have a winning track record.  "Yes," I tell them immediately, but then I follow with, "but that's a trick question."  If you can almost always accurately predict the outcome of a trial, why would you walk into Court with a losing case?  You try your winning cases.  You settle the losing ones. And in Family Law, you settle every case that you can.  Why?  Because it is far less expensive (usually that's a value to the client) and it is far less toxic and damaging to the family's relationship.

So, do I allow the train wreck?  And could I sell tickets?

I don't allow the train wreck if I can at all possibly help it.  I'll argue with a client right up until the moment that the Judge sounds for the case.

(Practice point: this is why, in Family Law, good offers should never be pulled.  A good deal remains a good deal, regardless of when the other side finally figures that out.)

So, listen to your lawyer.  You pay him enough.  And he really does have your best, long term interest at heart. Besides, train wrecks aren't just the drama of flashy explosions.  There is damage and long term pain  that you have to live with afterward. Ultimately life is more complex than Gomez Adams' model railroad.

Michael Manely

Monday, January 24, 2011

Jack Lalanne

Readers of this blog will know I do not cover celebrities.  That is not my thing.  I would much rather talk about real people with real issues.

Tonight I'm writing about a real person who was also a celebrity: Jack Lalanne. But I'm not going to write divorce gossip from celebrity rags.  I'm just going to pay a quick tribute to someone who had a great influence on me.

Lalanne started his television fitness show the year I was born, 1959.  Growing up somewhat in front of the tube, I have many recollections of watching his show and trying out the fitness activities he'd advocate.  The man was in great shape. Who could argue with him?  When he started his show, he was 45, only six years younger than I am now.  His show ran for another 34 years.  His life ran for another 51.

As I became a teenager I took to working out.  At the time I credited it to Arnold and his book, "Education of a Body Builder." Arnold's movie, "Pumping Iron," didn't hurt either.  But the health conscious stuff, the eating extremely healthy and positive body focus was all Lalanne.

Looking back over the videos posted on Youtube, I'm amazed to see the insight of his work.  I had to absorb all that stuff when I was little.  Somehow it is still hardwired in me.  But as I look over at the Hershey's Bar waiting for me, I have to wonder just how deep this wisdom is buried.

We all want to live better.  We all desperately want to make better decisions.  It's right there, just for the taking.  Jack Lalanne made it undeniable.

Thanks, Jack.

Michael Manely

Wednesday, January 19, 2011

Modification: Teaching your ex a lesson

I recently spoke with a gentleman who was interviewing attorneys.  He told me he had spoken with several other attorneys (always a good idea), and particularly liked one who, after hearing the facts of this fellow's case said, "We're going to get her.  We'll teach her a lesson."


Family Law litigation is not about teaching anybody a lesson.  Not only does that do nothing more than abuse the court process, it completely misses the point and it is the quickest way to lose.  That's three excellent reasons to not choose this path.

Teaching your ex a lesson does nothing more than abuse the court process because the court process is designed to provide people with a forum to resolve their differences.  The key word there is resolve.  In Modification cases it is particularly appropriate, "re-solve."  Teaching your ex a lesson is not about resolving anything.  If you have a legitimate dispute and you can't get it sorted out with your ex without court, then litigate it, but litigate to get it resolved, not to satisfy vendettas or hum the legal equivalent of na-na-na-na-na.  There are too many people genuinely needing access to justice to tie the court up with feuds.

Teaching your ex a lesson completely misses the point because family law is about moving families forward.  It is results oriented.  It isn't a forum for the redress of past wrongs.  Even Contempt actions are really about the future.  While part of the remedy is getting back what you should have had in the first place (support, visitation) it is principally about changing conduct so that the act does not happen in the future.  That's why there are sanctions such as attorney fees or incarceration.  Modifications are exclusively focused on the future: what will the new child support be or what will the new custody award involve or how will visitation change?  To the extent that one party is caught up in past grievances, wanting to re-litigate old issues or "teach their ex a lesson" they've completely missed the reason for Modification.

And teaching your ex a lesson is the quickest way to lose.  Judge's have precious little time to give each case.  They have mere minutes before they assess the nature of the case and its probable outcomes.  If a Judge senses that a party is not forward looking but is litigating ancient hostility or retribution against their ex, that party will lose, immediately, having barely passed go.

In short, getting aggressive to "get" your ex or teach her a lesson is a no win scenario and a horrid waste of money.

After hearing what I just wrote, the fellow I was speaking with assessed, "Perhaps that attorney was just telling me what I wanted to hear.  Thank you for telling me what I needed to hear."

I'm glad I can help him.  Can we help you?

Michael Manely

Tuesday, January 18, 2011

Family Law: is it all for show?

Reform has value.  There is probably always a better way to do things.  Family Law is no exception.  I'll say that going in.

But some reform is ill conceived and ill informed.  Every now and then there's a notion to streamline Family Law, which is to say, make it more of an administrative matter rather than a legal matter.  I think that's a bad idea.

I need to digress here.  By administrative matter I mean a resolution based upon a pre-set formula contrived to create a pre-designed result, a cookie cutter approach.  For example, Worker's Compensation uses the administrative method to achieve its ends.  By regulation your hand is worth a specific sum, your foot is worth a different specific sum.  In the end, it largely boils down to math.  There is no nuance.  There is no subtlety.  The very facts that should make a key difference do not, because Worker's Compensation has decided that it is a waste of time.  Just lower the standard and lower the result.

On the other hand (no pun intended), you have the legal method which is much more open ended.  Rather than formulas which dictate an outcome, the legal method provides a trier of fact, usually a judge, who has great discretion to do what is right.  There are norms within "what is right" as established over time and within the collective of the judiciary.  This is largely what is meant by "Common Law."  But what is right is affected by nuance and subtlety.  What is wrong in one context can become right in another.  These facts matter greatly in real life, but they can't matter if they fit outside of the formula of an administrative method.

So the reform of Family Law sometimes comes down to requiring that everyone's case fit a pre-determined model, the cookie cutter approach.  It comes down to deciding that a whole host of facts (elements of people's lives) just don't matter.

Many Family Law cases can almost be handled in a cookie cutter fashion.  There is no doubt but that this approach is the least expensive.  Uncontested Divorce cases are manageable and affordable precisely because of this approach. But not all cases can be forced into a pre-determined model to achieve a cookie cutter result.  Divorcing parties would be ill served by such an approach, and, given the low level to which administrative cases are relegated, Family Law would be ill served by being just another aspect of life that has been relegated to the administrative remedy.

I can imagine the administrative divorce. "Next," the civil servant would call from her window.  "So you want a divorce?" she would ask, reading from the form you had completed a few hours ago when you first entered the large room filled with scores of other applicants.  "Yes," you'd say, hoping that she hadn't found some defect with your paperwork.  "Fine," she might say, checking boxes on the form.  "Your wife gets the kids.  You get to see them on Saturdays from noon until three and Wednesdays from six until eight."  "But I work on Saturdays," you might say.  "I guess you won't see them, then," she'd reply.

And so on, and so on. It's not a pretty picture.

The legal approach is, at its core, flexible.  It can be fraught with drama, with intrigue, with high level diplomacy and skulduggery.  It can be inefficient.  But it is also effective, thorough and to an incredible extent, tailor made to the circumstance.  Given the enormity of the legal institution, it is amazing that the system can be as flexible as it is.

And few people feel that their lives, their circumstances, their wants and their needs are ordinary, are average or appropriate for cookie cutter solutions.  Given the weight of issues that arise everyday in Family Law, few are.

So, the art, the practice of Family Law is not all for show, though there is a fair bit of show to it.  But, as the drama of human life goes, it calls for the show to give it the attention it deserves and to get it right.

To me, then, the bottom line: leave Family Law flexible.  Don't try to make a round peg fit into a square hole or vice versa.  Individually crafted solutions work.  Institutional, administrative orders that apply to no one, don't.

Michael Manely

Monday, January 17, 2011

It has been a month

I'm not too terribly surprised that it has been over a month since I last blogged.  So much has happened with getting the boys through another semester of school, then Christmas, then New Years, then one of the boys' birthdays then Snowcalypse (although with the unexpected break caused by Snowcalypse I would have thought I'd blog more, not less) and finally, a presentation I delivered on the United Nations Agreements reached in Cancun in December.

Still, all of that is a poor excuse for neglecting my nightly blog duties.  A pox upon me for loafing.

The Firm continues to do exceptionally well.  Looking back at 2010 we actually helped more people than in 2009 which was an astonishing accomplishment in this economy.  Of course, you are familiar with our successful battles in Cyprus in getting little girls returned under the Hague convention and preventing the departure of a boy to non-Hague country, Nigeria with only 24 hours' notice, and the location and rescue of a boy who had been abducted by his estranged and violent father.

You no doubt recall reports of the trials, now too numerous to mention, but capping off with that $500,000 alimony award when the opposing counsel had asked the jury for $3.2 million.

All in all, while 2010 could have been better for our nation and our clients, it was not a bad year for The Firm.

So, now I'm back at the late night keyboard, typing out a line, reaching out into cyberspace, and dropping a few observations about this curious profession and the practice I've chosen and so dearly love - Family Law.

Stay tuned...

Michael Manely