f/k/a archives . . . real opinions & real haiku

September 11, 2003

Make Those Road Calls Unbillable, Unacceptable and Unlawful

Filed under: pre-06-2006 — David Giacalone @ 8:02 pm

It’s human nature to rationalize doing dangerous things that are enjoyable or profitable, or even just customary. That’s why I’m grateful for both tort lawyers and insurance companies (when neither group is being too greedy) — they just might help remove the plague of cell-phoning drivers from our roads. (update: our continued cellphone-driver blues)

I have ranted on this topic for years, to no avail. As I pointed out in 2000, in my Advocate This! column, for the now defunct Prairielaw.com:

Of course, driving while on a cell phone is dangerous. But those who do it use the excuses that parents might hear from rebellious teens: “Why don’t you ban radios, or talking to passengers, or eating in cars?” Well, radios and hamburgers don’t talk back, expect answers, make demands or require intense concentration. And, fellow passengers, unlike phone buddies, can see when traffic demands your attention.

The National Safety Council and others have recently highlighted studies that confirm and explain the “inattention blindness” produced by DWT [driving while telephoning] (see Study Finds “Inattention Blindness” in Behind ­the ­Wheel Cell Phone Users, Feb. 2003; via SW Virginia Law Blog, 06-29-03). But, there’s little hope that studies and articles will bring about less of this practice. What we need are strong laws to prohibit it (in its hand-held and hands-free forms, since they pose the same dangers), backed up by strong enforcement, and even some social stigma. What we also need is a strong financial disincentive to engage in DWP (Driving While Phoning). Naturally, that’s where the tort law and insurance premiums can play a very big role, especially in stopping business-related phone calls.

For law firms, at least, that financial message might come loud and clear from a Loudon County, Virginia, courthourse, in a trial that begins next week. As the Legal Times reported this week:

“A girl is dead. And the civil trial against Jane Wagner, the driver who hit her, has come down to this: Was Wagner a lawyer or a client at the moment her car struck 15-year-old Naeun Yoon?

“Next week, a Loudoun County, Va., jury will be asked to answer that question. And if the jurors find that Wagner was acting as a lawyer — speaking to a client on her cell phone — they’ll have to decide whether her law firm shares the blame. Wagner and her former firm, Palo Alto, Calif.-based Cooley Godward, face the prospect of sharing liability for the teen’s death and for the $25 million Naeun’s father, Young Ki Yoon, has demanded in compensation.” (“Can Cooley Godward Avoid Blame in Girl’s Death?”, by Siobhan Roth, 09-10-02) (also via SW Virginia Law Blog, 09-07-03)

Lawyers certainly don’t like to think that performing their learned profession could pose a physical danger to others, much less that their profit motive might cause them to value profits over the lives and safety of their employees or others. But, the world changed when lawyers started doing business on cell phones while driving — when, that is, their desks started weighing half a ton (and more) and travelling down public roads at great speed.

It is no secret that many law firms encourage, and others demand, that their attorneys be available virtually 24/7 to serve clients and partners. For many, 7 AM is not too early and 11 PM not too late to phone a colleague or client about a case. Many lawyers pride themselves on how much work they can squeeze in while commuting to and from work. (While, others greatly resent the obligation to be constantly available and productive.) If a basic sense of civic responsibility isn’t a good enough reason for a firm to ban the use of cell phones while driving, perhaps the spectre of injured employees, increased liability insurance premiums, and multi-million dollar tort liability will finally suffice.

Workindex.com has some sober advice for employers hoping to avoid liability for DWT. Your editor suggests, in addition to a formal rule against driving while phoning that should be in every firm’s employee manual, that a memo something like this be circulated and posted at every law firm:

Firm Policy on Cell-Phone Use While Driving

In One Word:


In Case You Need More Words:

No employee or member of this firm shall engage in any form of firm-related business on the telephone, or by means of any other electronic or digital machine or gadget, while operating a motor vehicle. You shall not initiate such conduct, and shall immediately terminate any such communication if received while driving. Furthermore, no attempt shall be made to communicate with another employee of this firm when it is known or reasonably believed that he or she is operating a motor vehicle.

No work conducted in a manner inconsistent with this policy shall be billable.

No attorney, member or associate who violates this policy is fit to remain in this firm — not even those who think they are above the laws of physics, psycho-neurology, chance, or even of this State.

We’re not winking. We mean this.

UPDATE (09-15-03): Click here to see the story behind this MadKane.com song stanza, which was added today to Madeleine Begun Kane’s That’s What The Law’s About (and which is sung to the tune of “The Hokey Pokey”):

You’ve got to wield that phone
Right from the driver’s seat.
Your time is not your own
And you rarely sleep or eat.
But if you’re very lucky,
You won’t crash or run aground.
That’s what the law’s about.


  1. David: The Yoon/Wagner case is being portrayed as a case where overzealous devotion to the job and the use of a cell phone caused a death. There is significant evidence that (i) Wagner was either impaired or intoxicated at the time of the accident and simply drove off to avoid a drunk driving manslaughter and simply concocted the cell phone story later to cover her hit and run, and (ii) that Ms. Yoon, who had had an argument with her parents in a car going in the opposite direction, had jumped out of the car and begun to run away, putting herself in the middle of the highway in a position to get hit by a car that veered even slightly over the middle lane. See the article at http://www.washingtonian.com/people/twotruths.html

    I read a better article on the incident some months ago and I will try to get a link to the article to you.

    Comment by Stuart Levine — September 12, 2003 @ 10:07 pm

  2. Hello, Stuart,    It’s good to hear from you again.   The merits of the plaintiff’s case in Yoon  has nothing to do with my belief that law firms should not be encouraging, demanding, or even allowing their lawyers to be using the telephone while driving — and that law firms will be held liable for accidents that happen while their members or employees are doing firm business while engaged in DWT.   Driving takes too much attention to permit simultaneous practicing of law (or related administrative functions), and practicing law should take too much mental attention to permit simultaneous safe driving.  Responsibile individuals must choose to do one at a time.   

    Comment by David Giacalone — September 12, 2003 @ 10:34 pm

  3. You may have the better side of the general argument here. However, I think that it’s a debate that should be resolved by the results of empirical research, not apocryphal stories that have, to say the least, a questionable factual foundation.

    Moreover, the ability to safely use a cell phone while driving is one that applies to everyone, not just lawyers. To the extent that our society deems that work-time has no boundaries (and, to an ever increasing degree, this is the case) lawyers are (i) not exempt and (ii) in fact will be subject to this tyranny to a greater extent than other “industries” given the fact that we basically sell our labor measured by time. The more “productive” time lawyers can squeeze out of a day (and I will admit that I’m not certain how much of a billable hour is truly productive), the better our financial results will be.

    The cell phone/driving conundrum is really one of many manifestations of a societal work ethic gone awry.

    By the way, in the interest of full disclosure, I must tell you that I am a persistant and chronic cell phone driver and, as is apparent by my posting of this at 1:44 AM, one of the worst offenders of the “undue expansion of time” rule.

    Comment by Stuart Levine — September 13, 2003 @ 2:39 am

  4. I agree with virtually all that you’ve said, but it doesn’t change my bottom line — driving while telephoning is socially irresponsible and should be denounced by the legal profession.  I’m one of those folks who holds my self, my country, and my profession to a higher standard that the general run of the mill person, nation or job.   Lawyers were in the vanguard of professionals demanding that non-emergency workers be available throughout the day, and the profession somehow convinced its best and brightest that 50- to 70+-hour work weeks were the norm or a matter of pride (or worth it for the bucks and prestige).   That skewing of values is one reason for the dissatisaction and depression that is rampant among our colleagues. 
    But, I digress.  The fact that lawyers are tempted to give in to the tyranny of the profit motive and Billing While Driving does not mean that they should do so.  Cell-phoning drivers choose to lessen their attention to driving, thus making the roads less safe for the rest of the world.   Studies and common sense tell us that DWT is a danger.  Unlike other dangers that are inherent in driving, it can be avoided (and unlike most other in-vehicle activities, leaves an evidentiary trail).  It’s not like listening to a radio or eating.  For example, many employers allow background music in an office, and snacking at desks, but certainly don’t allow employees to have telephone conversations while attempting to do other work — telephoning simply takes up too much of our mental capacity.  And, practicing law on the phone, I suspect, takes even more brain cells than a lot of other meaningless chatter.
    The legal profession constantly says it “holds itself to the highest ethical standards.”  Well, why not let the world know that lawyers are going to resist the temptation of DWT and the profit motive in order to make the world a safer (maybe even saner) place.   We might not be able to put the technology genie back in the bottle, but we can maybe wish for and strive towards more social responsibility.  (Darn, I was hoping to resist preaching for the rest of the weekend.) thanks again,, Stu.

    Comment by David Giacalone — September 13, 2003 @ 12:59 pm

  5. DWI, drunk driving, dui, and a license to drink.

    Copyright: 1987-2005

    Comment by bruce alm — February 22, 2005 @ 12:22 am

  6. Very nice blog. It is very helpful. http://www.bignews.com

    Comment by Sonya — August 19, 2005 @ 8:44 am

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