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
http://www.allfamilylaw.com/CM/Custom/Firm-Overview.asp

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

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."

STOP

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
http://www.allfamilylaw.com/CM/Custom/Firm-Overview.asp

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

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

Negotiation 101

There has been a lot of press about the art of negotiation this week.  A very good argument can be made that any deal which divides a pie with 16 pieces to one party and 1 to the other is not a good deal.  Yet that is the result of a significant deal which the national press has extensively covered. 

I think an argument can also be made that no one is that bad of a negotiator.  This leads to the direct inference that the negotiator who accepted one for his side while conceding 16 to the other may not have actually been playing for his side. 

So how is this relevant to family law?  Only in that sometimes clients jump ship, they move from one attorney to another.  When I am consulting with a potential client who has left his prior counsel, I sometimes hear that the former counsel was so bad  at negotiation that he must have been bribed or at least favored the opposing party or opposing counsel to such an extent that he took a fall against the client's interest.

In my several decades long experience that doesn't happen.  It is true that extremely poor results can be attribued to counsel.  Attorneys, like people everywhere, fall somewhere along a continuum.  Some are great.  Some are awful.  But poor results can also be attributed to other factors.  If it is the potential client's facts, that is usually easy to spot.  Harder to spot are issues related to the Judge such as immutable pet peeves. 

However, if the deal is 16 to 1, you can probably figure that the fix was in.  But how often has that happened?  Except for the recent infamous deal,  I've never seen such a bad deal.  Usually negotiations work more like my recent experience where we tortured numbers over months of work, analysis, research, offer and counteroffer to finally arrive at a settlement that cut both ways to both parties and was about as fair and equitable as you could ask.  After a very long term marriage which accumulated significant assets, the parties were finally able to let go the years of building vitriol to allow each other, and most importantly themselves, permission to move on.  The parties maturation allowed counsel to cross the Rubicon to end the litigation and strike the deal. 

So if you think your counsel is taking a dive, if the deal is something like 16 to 1, you are probably right.  If the deal is much closer to equal, then something far less sinister is taking place.  It is probably the nuance of law, particularities of your history and vagaries of circumstance operating directly on your experience. 

Michael Manely
http://www.allfamilylaw.com/CM/Custom/Local-Knowledge-Local-Courts.asp

Addiction, your spouse's real partner.

Marriages fail for a myriad of different reasons.  Some fail because of addiction.  Addiction can be to gambling, to shopping, to pornography.  I have worked on divorces in 50 plus year marriages which are coming apart because of a recently surfaced sex addiction.  But the most common addiction is drugs or alcohol.  Tonight I'll talk about alcohol.

People are often isolated.  They come to me with their own stories, their own experience.  They know what they live through but they don't have the advantage of hearing thousands of stories.  They can't see their story in the context of our larger culture.  Almost always the client and I will consider the question of whether the spouse is just drinking or is addicted.  "Does the drinking interfere with your relationship?"  I'll ask.  If the answer is yes, then there is a problem whether it is from addiction or from mores against alcohol.  "Can your spouse put it aside at any time, not touch it for days or weeks?"  If the answer is no, there is a problem.  That may be simplistic but I think it boils down to that issue.  If you can't leave the alcohol alone for a significant period of time, there's a problem, an addiction in some form.  "If your spouse drinks sporadically when they drink, do they often get inebriated, affected?"  A purely social drinker only drinks on social occassions and rarely drinks to excess.  If your spouse often gets trashed when they drink, a binge drinker, there's a problem.

People who come to see me with this issue have often been living with a raging alcoholic for years but haven't really wanted to face it.  Like Battered Women's Syndrome, there is an inherent denial in it.  This is why groups like Al-Anon exist, to help you get out of that co-dependency.  And alcoholics, like all people everywhere, are on a continuum.  I have worked with folks who have been institutionalized for alcohol abuse and I have worked with folks who can't finish out the day without a couple of stiff drinks, though they don't slur their speech and they don't miss work because of it.  Both, I think, are alcoholics.  I don't know if the APA would support this, but in my practice it's a pretty safe charge. 

Some people are violent when they drink.  Some just fall asleep in their recliner by 7:00 p.m.  All are removed, more distant than they would be without the drink.  All are less engaged, less committed to their partners, because they are committed to their addiction.

Their addiction is not rational.  This is the nature of addiction.  It takes over rational thought.  Rational thought is not a rational proposition in the face of addiction.  Addiction is something else entirely.  It can't be argued away.  The addiction is the spouse's partner, not the person they are married to.  And being the third wheel is very lonely.  There is no intellectual adjustment that can be made.  If your spouse won't get help, you will either live with it forever, in all of its forms, or you escape.

Addiction is not a fault in a moral sense.  It is an illness.  But at the same time, it is not a sinking ship with which you must perish.  You can save yourself; that's fair.  If you have kids, you must save them.  Maybe leaving your addicted spouse will be the wakeup call they need, but that is irrelevant.  You don't leave your spouse to get their attention, you leave your spouse to save yourself, to save your children.

I'm not being melodramatic here.  It is a question of saving yourself and of saving your children.  The life your children will live, growing up in the home of an alcoholic, is a brutish life in the best of circumstances.  It's a short life in the worst.  The abuse, even if it is purely psychological, is something no one should ever have to endure, certainly not the children.  You don't want your children to grow up to be like your addicted spouse.  But you make that outcome all the more certain by staying.

Addiction is a ground for divorce in Georgia, though most people still just claim "Irretrievably Broken" in their Complaint.  You are permitted to end the marriage when your spouse is married to the bottle.

Michael Manely
http://www.allfamilylaw.com/CM/Custom/Firm-Overview.asp