Monthly Archives: June 2008

Safer Drunk Driving?

A few days ago I wrote a post about one of the uncomfortable truths about drunk driving: As with most things, the more times you do it, the better you get.

The psychology professor who explained this to me said that a lot of the impairment of mild drunkenness comes not from drunkenness per se, but from the unfamiliarity of performing certain tasks while drunk. The first few times you tried to drive a car, you weren’t very good at it. Well, the first few times you try to drive drunk, you won’t be very good at that either. But in both cases, you get better with practice.

I wasn’t mentioning this for any other reason than that I found it interesting. It’s an unexpected conclusion that arises from the simple and uncontroversial observation that we get better at tasks when we become familiar with them through practice.

When I thought about it later, it occurred to me that drunkenness is a bit like a disability, and as with any disability, we find ways to work around it. If your knee is injured, you learn to walk a different way so it hurts less. If you’re deaf, you learn to talk a different way—sign language and lip reading. So what about drunk drivers? How do they learn to accommodate their self-inflicted disability?

Probably the most obvious accommodation is that they drive slower than normal. This just makes sense: If your reaction time and judgment are screwed up, you slow down so that things happen at a pace you can handle.

Now this has policy implications.

Police are trained to look for driving behaviors that may indicate a drunk driver, and driving really slow is one of them. However, if drunk drivers are aware that police will be more likely to arrest them if they drive slowly, it creates an incentive to drive as fast as everyone else. And faster driving is less safe, especially for a drunk.

To put it another way, when police hunt for drunk drivers, it creates an incentive for drunk drivers to disguise their drunkenness in a way that increases the risk of an accident. This got me wondering if there are other mixed-incentives created by the rules for DUI stops.

(I tried to find the rules for my state, but the Google search just brought up page after page of DUI lawyer sites. One of them probably had the answer, but wasn’t about to read all those sites to find it.)

I checked the National Highway Transportation System Administration’s DWI Detection Guide. (I’m assuming NHTSA’s findings inform state laws and court rulings.) Most of the signs of drunk driving seem like alcohol-induced impairments. Not a problem.

A few of them, however, sound more like they’re part of the driver’s attempt to reduce the risk of being drunk: stopping too short, slow speed, and slow response to traffic signals.

It’s probably safe to assume that if police stop drivers who exhibit these behaviors, it will encourage people to behave differently. Drunk drivers will stop later than they want to, speed up, and take off quickly when the light turns green. All of which may cause more accidents.

None of this proves that these traffic stops are actually increasing the danger. After all, arresting drunk drivers discourages drunk driving, which reduces the danger. At this point we’d have to look at the statistical evidence to figure out which effect is dominant. That’s more work than I feel like doing for a blog post.

My gut feeling (if it’s good enough for Steven Colbert, it’s good enough for me) is that the increase in danger is small compared to the advantages of arresting drunk drivers, so we shouldn’t stop using behavior like slow driving as a cue to stop someone.

Maybe we can split the difference, however. We could reduce the penalties for drunk driving if it’s done more safely. You’d flip that around for enforcement purposes, by specifying an enhanced penalty if the car’s speed was more than 10 mph below the limit.

I suspect a similar set of incentives applies to drunk drivers who pull off the road to sober up. Police have actually found drunk people pulled over and asleep behind wheel and arrested them for DUI because they were legally still considered to be in control of the car. Is it really a good idea to discourage drunk drivers from getting off the road to sober up?

Civil DUI?

Grits For Breakfast has now joined the discussion we’ve been having about how DUI is enforced. In his first post, he picks up on Shawn Matlock’s suggestion that DUI should be stripped of it’s criminal aspects and treated as a civil matter.

I don’t like the sound of that. In fact, I want exactly the opposite.

If you’re drunk and you hit my car, that’s a civil matter: I can sue you for the damage to my car, medical bills, pain and suffering, and so on. But as everyone has been pointing out, most drunk driving episodes end uneventfully—no injuries, no property damage, nothing to sue for.

But that’s not what Shawn and Grits are talking about. They’re talking about the civil process by which the state suspends driver’s licenses and levies fines against drunk drivers. I’ve never understood how this is constitutional.

In DUI cases (among others) the government waves its magic wand and says that the punishment is not really punishment, making the proceedings civil rather than criminal, and depriving the accused of many legal protections, such as forcing the state to bear the burden of proof through the presumption of innocence. 

In fact, the accused need not have a trial at all. The state simply uses its administrative powers to impose a fine or suspend the accused’s driver’s license. If the accused doesn’t like it, he has the option of going to court. This completely reverses the burden of proof.

There’s also the matter of Gideon v. Wainwright, which ruled that all criminal defendants are entitled to legal counsel, provided for them by the government if necessary. There’s no constitutional right to a publicly-paid lawyer in civil matters.

As near as I can tell, the massive collateral civil punishments associated with DUI are a case of legislative theater—“getting tough on drunk drivers!”—and the siren call of a profitable punishment scheme. DUI convictions make so much money for the state that bills to increase DUI punishment are as much about revenue as they are about public safety.

DUI endangers people. It’s a criminal act. It shouldn’t be a source of revenue. If the state wants to pick our pockets, they should have the balls to raise taxes.

Update: On re-reading Shawn Matlock’s article, I notice this:

If a DWI is truly only a matter of opinion, or worse yet a numerical threshold, why don’t we just make them administrative? How is a blood/ breath test case different than a speeding ticket at that point? I say it’s not.

Hmm. So does Shawn—or the jurisdiction where Shawn practices—consider traffic tickets a non-criminal matter? Here in Illinois, as I understand it, traffic tickets are usually violations, which are less severe than misdemeanors, but still criminal cases. You can even request a jury trial.

That would be okay with me, I think, at least for a first offense.

We’re Dead Last! We’re Dead Last!

The story Radley Balko was in town for last month is now officially out in the open, with an op-ed in the Chicago-Tribune:

At Reason Magazine, we recently took a look at how the 35 most-populous cities in the United States balance individual freedom with government paternalism. We ranked the cities on how much freedom they afford their residents to indulge in alcohol, tobacco, drugs, sex, gambling and food. And, for good measure, we also looked at the cities’ gun laws, use of traffic and surveillance cameras, and tossed in an “other” category to catch weird laws such as New York’s ban on unlicensed dancing, or Chicago’s tax on bottled water.

The sad news, Chicagoans, is that your town came in dead last. And it wasn’t even close.

The comments at the Trib are interesting. One of them rightly questions the methodology of the study—this sort of thing is hardly subject to scientific rigor—but others go a long way toward explaing why we’re dead last:

The more dense cities get, the more rules that are needed to force, yes force, people to live together peacefully. Many people living in cities today grew up in the ‘burbs where they were pretty much spoiled rotten. Uncouth, loud, self-centered, demanding, no sense of community, in other words, typical Americans.

Right back at you, pal.

Then there’s “Matt Was Here” with this gem:

The headline to this article should be “Chicago Tribune headlines neocon propaganda on its web site.” The restrictions on smoking in those taverns has allowed me and everyone else who likes health and clean air the “freedom” to frequent them.

Matt, ignoring for the moment that you’re using “neocon” as a synonym for “opinions I don’t like,” if smoking in taverns took away your “freedom” to patronize them, don’t you think that outlawing smoking in taverns has taken away the freedom of non-smokers? You got what you wanted by taking away what other people wanted. You’re a thief.

As is “maddog”:

Yeah, your right – if I could sit in a smokey bar with a prostitute eating trans fats shooting geese with my handgun and eating their artificially enlarged organs, Chicago would be much more fun. Idiots. Do you ever think that it is more fun to go to a bar to see a band and not come out smelling like an ashtray? Or that trans fat do not make foods taste better, they just risk your health so corporations can make their crappy food cheaper?

Did you every think of finding or founding restaurants and music venues that that meet your standards instead of relying on the city to force all of them to meet your standards?

MDK writes in response to another commenter:

Maybe you are too young to remember what Chicago was like in the 60’s and 70’s. A **** hole. This city was a dump! It’s so beautiful now that tourist even come. We used to be known as the slaughterhouse capital of the world with gangsters at every corner. Now we are known for our culture, architecture and beautiful lakefront.

And, as always, our political corruption. Also, I live here, why would I give a shit what the tourists think? I want a city that works for me.

ADK says:

Chicago in last place among cities to do dirt in? I’ll take it. That’s called progress… Who says hanging out in bars and pouring poison down one’s throat ever added to the quality of life in any city?

People who live here and like to hang out in bars maybe? If they didn’t like it they wouldn’t do it. A lot of policies sound like good ideas if you don’t care about the people they hurt.

And the Unclear On the Concept award goes to “matty” for this:

I’m fine with most things listed. I just wish the city wasn’t so anti-art shows, dancing or having fun in general.

Sigh. There’s no hope for us, is there?

Steven Molo Comments

Lawyer Steven Molo has posted a couple of comments to my review of his book, Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, and I thought they were interesting enough that I’m excerpting them here:

I apologize if my comment about not being an avid reader of blogs was off-putting or had any ring of arrogance. I meant it more as an admission of my own deficiency. As you correctly note, my complete response wasn’t limited to the four blogs mentioned and did state, “I need to get into it a bit more” — and I do.

The whole experience of promoting this book on the internet has taught me a lot. Successful trial lawyers, as the book notes, need to stay connected to the world around them and I certainly need to do a better job of that when it comes to what is going on in the blogosphere.

Finally—I just want to note that the author royalties from Your Witness are being donated to the Chicago Bar Foundation, which supports @ 40 not-for-profits that help bring equal access to justice to the Chicago area’s less fortunate.

One of the questions I asked Molo in my e-mail interview was if he knew any good books for legal spectators like me. His second comment to my review expanded greatly on this subject:

On an additional point raised in your review—you note that you like to read “about legal stuff” and that I recommended One Man’s Freedom by Edward Bennett Williams. That is a great book and but is not completely focused on trials. For those whose interest is primarily in books about trials, I have a few more recommendations from my own bookshelf.

The late Louis Nizer, a NY trial lawyer of the mid-20th Century, wrote at least three books about his cases: My Life In Court, Reflections Without Mirrors, and The Jury Returns. I haven’t turned to these in a while but I found them all good reading as I was growing up in the business and know their appeal extends to those who are not lawyers.

Francis Wellmen wrote the bible on cross-examination, The Art of Cross-Examination. He was a NY trial lawyer of the early 20th Century. His autobiography, Luck and Opportunity, is I think, in many ways as good a read as The The Art of Cross-Examination, although it is less technically focused.

Earl Rogers was maybe the best trial lawyer of the early 20th Century in California. His daughter Adele Rogers St. John — who Rogers, a drunk, would often take to court with him — wrote a wonderful account of her father’s life and trials in Final Verdict.

When I was a very young lawyer I had the good fortune to have a case against one of the most colorful members of the Chicago trial bar of the time, Julius Echeles. Echeles used to claim he was the last lawyer to have read for the bar (not graduated law school) who was admitted in Illinois. While a lawyer, he was also prosecuted, convicted, and had his conviction overturned on appeal — but that’s another story. I asked Echeles what it took to become a great trial lawyer and he said — not surprisingly — try cases.

He also said to read about trials and he gave me a handwritten reading list that included the names of Henry Cecil, an English Barrister, and Arthur Train. Cecil’s works are fine and worth reading. But, Train’s turned out to be a terrifically wonderful surprise. He was a a NY trial lawyer in the early 20th Century — roughly a contemporary of Wellman. He was sort of the Scott Turow of his day in that he was a real trial lawyer who was also a novelist. His protagonist was a wonderful trial lawyer named Ephraim Tutt. There are a whole series of Tutt books, recounting his victories and defeats in a variety of cases.

The best Tutt book, however, is Yankee Lawyer, the fictional autobiography of Ephraim Tutt. It is a wonderful literary vehicle — the autobiography of a fictional character. In reading it, lawyers today would be struck that notwithstanding the passage of almost a century, a lot of the good and the bad of the profession remains the same.

I believe all of these — with the exception of The Art of Cross-Examination—have been out of print for some time.

One thing I truly enjoyed in my late 20’s was hunting for Tutt books in used bookstores across the country. They were easiest to find in NY but you could run across them in odd places — I found my first copy of Yankee Lawyer in an antique store in Saugatuck, Michigan. Amazon, for all of its positives, has pretty much taken the joy — or at least the necessity — of that away.

There are many other books about great trial lawyers of the past and their cases—Percy Foreman, Joseph Auerbach, Max Steuer, Lloyd Paul Stryker—the list goes on and on. There is, of course, great fiction and non-fiction being written about the courtroom today. Scott Turow, John Grisham, Gerry Spence, and John Mortimer all tell great courtroom tales and “know from whence they speak”. It is a great profession and I guess its enduring interest to writers and readers is testament to that.

(I have reformatted Steven Molo’s remarks for readability and added links to Amazon where appropriate.)

I haven’t heard of most of the older books, except Wellman’s The Art of Cross-Examination, which I suspect isn’t as entertaining to a non-lawyer as some of the other books.

Scott Turow’s writing is terrific. He handles the characters and setting of the law very well, and it was his Presumed Innocent that got me interested in reading about what lawyers do. In his recent World War II novel, Ordinary Heroes, he demonstrates his talents by reaching beyond his grasp, and grabbing on anyway. I hope someone’s making it into a movie.

I’m not such a big fan of John Grisham. All his main characters seem to hate being lawyers. Maybe that’s changed recently, but I stopped reading after Pelican Brief. (I make money if you follow my links and buy the book, and I’m still not linking to Pelican Brief.)

I’m mad at Gerry Spence because he ripped me off with How to Argue & Win Every Time. When one of the most famous trial lawyers of our time writes a book with a title like that, I expected it to be about kicking ass and taking names. Instead, Spence talks about using a larger definition of winning that involves getting what you want through communication and cooperation. (At least that’s what it was about up to the point where I stopped reading.) There’s nothing wrong with that—it’s my preferred approach—but that’s not what I wanted from the book.

I’d also add Sheldon Siegel and William Lashner to the list of novelists.

Siegel’s not a criminal lawyer, but he obviously admires them, and he does enough research to write well about the trial process.

Most courtroom fiction derives some of its tension from the fact that no matter how high the stakes, the lawyers are supposed to stay within strict legal and ethical boundaries. Lashner’s stories focus less on the trial than on the underlying mystery, and his protagonist, Victor Carl, has a shaky relationship with ethics. Lashner himself is a former federal prosecutor, and his stories read like a prosecutor’s wild fantasy about the crazy stuff defense lawyers get to do. The characters, situations, and dialogue are hilarious.

(Lashner’s Bitter Truth has one of the best opening lines of any novel I’ve read: “I suppose every hundred million dollars has its own sordid story and the hundred million I am chasing is no exception.”)

Thanks, Steven, for the recommendations.

Will The Gay Pride Parade Be Indecent?

Arlene Sawicki of the Illinois Family Institute is concerned about, well, what the Illinois Family Instutute is usually concerned about:

Chicago parades include the famous St. Patrick’s Day Parade in March, where the Chicago River is tinted green in honor of the Irish. The Polish American Constitution Day Parade, held May 1st, celebrates the first European democratic Constitution established in Poland in 1791. The Columbus Day Parade, held in Autumn, is another ethnic celebration featuring the contributions of Italian Americans. The Von Steuben Day Parade, held in September, is the German American event of the year. Thousands of Chicagoans participate in these parades and support the causes they represent.

However, never within the celebration of these events would you find the flagrant and offensive violations of the Public Morals Laws of conduct as you do in what has become known as the annual Chicago Gay Pride Parade, held this year on Sunday, June 29th, 12:00 p.m.

Which is why I’ve never been to those other parades to take pictures, but I’m going to try to make it to the Pride Parade again this year.

By the way, I don’t know anything about Sawicki other than that she wrote this article, but she gets a point or two in my book for being consistent. One of the core values of conservatism is respecting tradition, and she respects the traditions of the blogosphere: Even though she clearly doesn’t much like the Pride Parade, like any good blogger, she dutifully links to the Pride Parade web page.

in Gay

Your Witness – Review

This seems to be the right time for publishing reviews of Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo. Already Scott Greenfield has posted a review, and Mark Bennett posted his review just a little later. I guess it’s my turn.

Your Witness consists of 50 short chapters about different aspects of cross-examination, each written by a different lawyer. Most of the chapters include a story or two from the author’s career.

The book is a Chicago project. All of the lawyers practice in Chicago—although a number practice in other places as well—the editors are from Chicago, and the book is published by the Law Bulletin Publishing Company, which is located in Chicago.

Personally, I enjoyed the book a lot. I like stories about lawyers and the sneaky things they do, and cross-examination is where the sneakiest lawyers really shine. If you like tales of skillful legal combat, you might enjoy reading these stories.

(If you’re as fascinated by legal stuff as I am, editor Steven Molo also recommends reading One Man’s Freedom by Edward Bennett Williams. It’s long out of publication, but you can find a used copy at I just got mine in the mail.)

The price is about twice the cost of a typical hardcover from Amazon, which is a little steep if you’re not buying it for your job, but you’ll probably be able to find a used copy in a few months.

But this book isn’t meant to be read for entertainment purposes alone. It’s intended to teach new lawyers and lawyer wannabes a few practical aspects of cross examination. Since I’m not a lawyer, I don’t have much to say about that—read Greenfield or Bennett for criminal trial lawyer’s view—but I suspect that trial lawyering is one type of work that really benefits from reading other people’s stories.

I know that when I was a computer systems manager back in the 80’s, one of the most useful aspects of users’ group meetings was hearing everyone else’s war stories and horror tails. It’s helpful to hear how other people solved problems, and it’s even helpful to learn that other people are having the same problems as you. If you’re a trial lawyer and that sounds right to you, then you should probably get yourself a copy of this book.

One of the things that impressed me about Your Witness is that the editors somehow got 50 busy trial lawyers to take the time to write a chapter. In an email interview, I asked Steven Molo how they did it:

Well, your question is probably best answered by the fact that it took over four years to complete this project.  Given the schedules of the authors and editors, it was not the sort of thing you just sat down and did.  There was a lot of picking it up and putting it down but in the end we believe it was worth it.

In the introductory matter, the editors said they chose only lawyers in private practice (with the exception of Federal Defender Terry MacCarthy) so I asked Molo to explain why:

First, there are very few, if any, government lawyers with the breadth of experience possessed by the authors of this book. Second, as far as prosecutors go, they simply do not have the opportunity to cross-examine witnesses as often as defense lawyers and given their usual advantages in a trial, their true abilities as trial lawyers generally are not tested until they are on the defense side.

Terry MacCarthy was included as an author because of his long and successful career, and because he is well known to members of the local and even national bar.

Since I read courtroom drama for entertainment, I’m used to reading about murder, rape, drug deals, and violent street crimes. Your Witness naturally had to have a much broader view of trial lawyering, including a lot of civil actions, but it seemed to me that most of the criminal trials tended to be for white-collar crime, including rather a lot of trials for corruption (especially corruption of Cook County judges).

I also asked Molo if white-collar crime was an intentional focus of the book. He responded by disputing my premise:

There are plenty of stories about “non-white collar crime” in the book.  Read the chapters of Bill Martin, Ray Smith, Sam Adam, Rick Halprin, Tom Breen, and mine for that matter.  We didn’t direct authors to write about any specific type of case.  Plenty of us have represented people charged with murder, rape, and robbery over the years. There are also stories about great moments in personal injury trials, patent disputes, and business cases.  We tried hard to have authors who represent a broad array of trial practices.  We believe great trial lawyers can try any type of case.

The subtitle claims the book has “Lessons on Cross-Examination and Life,” and I found a few life lessons in the book, but this is getting long enough, so I’ll be writing about those in upcoming posts.

Anyway, to finish out my review, I asked Molo which blawgs he reads. He responded that he’s too busy practicing law (or writing books with 50 authors) to read many blogs, but he likes to occasionally check in on these:

Judging by the blogs missing from that list, I suspect Molo doesn’t know which bloggers his publicist has been sending review copies to.

Heller: Gun Owners Get a Cookie

The Supreme Court finally released their long-awaited 2nd Amendment decision in Heller, and it seems to support an individual right to bear arms…in your own home, in D.C., if your name is Dick Heller, and all you want is a city gun permit.

That’s according to Scott Greenfield’s analysis of Heller.

They announced a fundamental individual right, yet also allowed all standing regulations to remain intact without explanation, and left 99% of the questions arising from this right unanswered.

Orin Kerr says essentially the same thing:

It recognizes the individual right…, but does not resolve the degrees of scrutiny, does not address incorporation, and indicates (without establishing) that traditional gun restriction laws are valid.

That’s a lot of important things to leave out.

I guess today the Supreme Court was doing the work of an administrative judge in the D.C. gun permit office. It’s kind of disappointing.

Any lawyers out there want to help me try to register a handgun in Chicago and see what happens?

DUI Is Still Dangerous

After posting yesterday’s explanation of how drunk driving isn’t as dangerous as you might think from reading MADD propaganda, I began to worry that people might get the wrong impression. Let me clear this up: Drunk driving is very dangerous.

Keep in mind, that we’re only talking about fatal drunk-driving. There are going to be a lot more non-fatal accidents that leave people injured but alive. Mark Bennett has a really good post on his blog that takes my numbers and estimates the non-fatal injury rate from drunk driving. It’s a lot of carnage.

Rare events like drunk driving deaths involve numbers that are far enough outside normal human experience that our intuition sometimes fails us, so it’s hard to tell if a 1 in 18,000 chance of death is a lot unless you compare it to something else.

According to this page of statistics, your chance of dying as an occupant of a car, driver or passenger, over an entire year is also about 1/18000. This suggests that driving drunk compresses an entire year’s driving risk into a single trip. If you drive once a day, that implies a relative risk ratio of 365-to-1.

On the other hand, I found this NHTSA document which suggests only a 10-to-1 relative risk of a fatal accident for a BAC around the legal limit of 0.08.

I’m not entirely sure how to reconcile these numbers, but the NHTSA report says that the relative risk doubles to 20 for a BAC of 0.15, and one of the referenced studies implies much higher relative risks for males under 21 as BAC rises:

The relative risk of receiving a fatal injury in a single vehicle crash increases steadily with
increasing driver BAC for both males and females in every age group with one exception… Among all male and female drivers, except those in the 16-20 group, the relative risk of
receiving a fatal injury is lower for drivers with a positive BAC under 0.02% than for drivers with 0.0% BAC. Remarkably, however, for the 16-20 age group, the comparable relative risk was substantially increased even at this low positive BAC, by 55% among males, and by 35% among females. Looking at relative risk across the six age and gender groups, we find that at a BAC of 0.035%, it was elevated by a factor between 2.6 and 4.6, at a BAC of 0.065%, by a factor between 5.8 and 17.3, at a BAC of 0.09%, by a factor between 11.4 and 52, at a BAC of 0.125%, by a factor between 29.3 and 240.9, and at a BAC of 0.220%, by a factor between 382 and 15,560.

(Emphasis mine.)

This is getting a little beyond my ability to think about statistics without looking things up in a textbook, but I think these numbers imply that although even mildly drunk drivers are dangerous, most of the real danger comes from drivers with a BAC way over the legal limit.

(By the way, note that for drivers over 21, the statistics appear to indicate that a BAC of 0.02 is less dangerous than a totally-sober BAC of 0.00. The NHTSA report suggests that this is an artifact of the study methodology and statistics.)

Mark Bennett ends his post with this:

Like most all societal problems, if it’s not solved by us rational people it’ll be solved by the kooks.

It seems to be an emerging theme of Windypundit to emphasize that serious problems require careful and honest thought. So, Amen to that sentiment, other Mark.