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Another Unanimous Supreme Court Victory!

Just last week we won another unanimous decision from the Supreme Court. This time, it was the Supreme Court of Georgia.

As with most cases, there were many side issues but one really frames the entire case. Can a trial judge control her calendar and call cases for trial when she is ready?

This case was essentially a contempt. The parties were divorced in 2005. They have five children. Dad was supposed to pay for a number of things. He was refusing.

The case was filed in 2011 in Fulton Superior Court. Dad complicated matters by filing a Modification to gain custody of the children. This is an action he never pursued. The contempt and modification cases were merged. Dad's goal was to never pay anything, to stall until mom ran out of energy and money. Dad figured that eventually mom would give up.

We had the 30 Day Status Conference, the 60 Day and the 120 Day Status Conference. The case was placed on several trial calendars. One of them was continued because of me.  The scheduled trial fell on the day I argued before the U.S. Supreme Court in 2012.  Dad ran through counsel who made varying efforts to get Dad to listen to reason and settle the case but mostly just bogged things down.

Then, Judge Wendy Shoob came on the Fulton County Family Court bench.  I have a great admiration for Judge Shoob, Judge Marvin Shoob, Wendy Shoob's father. I have a chalk drawing of him that CNN commissioned, hanging in my office in Marietta. He was a U.S. District Court judge for years and was famous (some would say infamous) for being very direct and very committed to justice. In this family, the acorn did not fall far from the tree.

Judge Shoob wanted the case tried. It had been around too long. She promptly put in on a trial calendar. As that calendar approached, her staff called both sides and asked for dates that we would be available. Both sides came up with a single date. Judge Shoob specially set the trial for that date. However, just a few days before trial, literally just a few days, Dad hired a new attorney.

This new attorney (new to the case, not family law practice) filed an Entry of Appearance, announcing his representation of Dad. He filed a Motion for Continuance asserting that he didn't have enough time to prepare for trial. And he also filed a conflict letter contending that he had other cases to try. Long story short, he said he was in the case but wouldn't and couldn't be at the trial.

Judge Shoob promptly denied the Motion for Continuance. This case had been pending long enough. Mom's day of justice would be delayed no longer.

Trial day came. The 11:00 am trial hour came. The parties were there. I was there. Co-counsel Lindsey Harrison was there. But no opposing counsel could be found. Dad called his attorney's office only to be told that the attorney wasn't in. He was in some other court, or so his staff said. However, Dad's counsel could not be found in any of the courtrooms identified on his conflict letter. Dad's counsel was AWOL.

At 1:30, having waited two and a half more hours for counsel to make his appearance, Judge Shoob called the case for trial. Dad protested that he had hired counsel and had a right to counsel so he should not be forced to go forward to trial without his counsel.

I countered that a party cannot hire counsel just to delay the trial, that the conflict letter listed no cases that constituted a priority over this case, as that is defined by our Uniform Rules and, even if it did, counsel was apparently not any of the places he had told our Judge he had to be, rather than where he was supposed to be right then, with us.

Judge Shoob agreed with me. Trial was on.

Needless to say, the trial didn't work out well for Dad. He never had a defensible position and the non-presentation of his non-issues was appalling. Dad was ordered to pay the sums he should have long ago paid to take care of his children and ordered to pay Mom's attorney fees as well.

I don't know what it is about some people that when they've dug themselves into a hole, their reaction is to dig deeper. In this case, Dad's counsel filed an appeal to the Supreme Court of Georgia arguing that a person has a right to an attorney and when that attorney enters an appearance before the court, there isn't anything a court can do about it. That attorney can do or not do whatever they want and the court is stuck with it. If the attorney chooses to be a no show, the show cannot go on.  The attorney's conduct cannot impact the party.

This was a case of huge significance. The ramification of counsel's argument would have allowed attorneys to game the system and thwart trials when they felt like it. The truth is, some attorneys have been practicing this way for decades, delaying justice when it suited them or their clients. Unfortunately Opposing Counsel's antics were not unique.

The Supreme Court accepted the appeal. The issues were thoroughly researched and argued. I am somewhat simplifying the argument (though this is the frame as it seemed to us). Truly, the Supreme Court could have accepted that an Attorney's Entry of Appearance created a shield which protected a party, that an attorney's lack of candor with the court would be an issue between the court and the attorney, but that it would not work against the party.

But last week, the Supreme Court of Georgia chose the best fork in that road without an equivocation, dismissing Opposing Counsel's appeal, holding that "it had no possibility of merit."

This is like a liberation day for our trial judges. They do have control over their calendars. If a judge is so inclined, Justice will not be delayed. An attorney's Entry of Appearance does not create an impenetrable shield. An attorney's conflict letter must satisfy the letter and spirit of the Conflict Rule, ie, be a legitimate conflict which actually prevents the attorney's appearance.

Thanks to the courage of Judge Shoob and the wisdom of the Supreme Court of Georgia, justice can move a little faster now.

And more personally, another unanimous Supreme Court decision for the firm. I'm a big fan of positive reinforcement.

Michael Manely

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