Sympathy for the Defendant
Tracey Wood is energetic, optimistic, and represents ‘the most hated’ defendants
Published in 2010 Wisconsin Super Lawyers magazine
By Erik Lundegaard on November 11, 2010
What’s the reaction when you tell people you’re a DUI lawyer?
I’ve been doing this so long that most people know already. But I do remember people treating you slightly worse than the gum on the bottom of your shoe. I think over the years, though, people realize that this is the type of case where clients are not the dregs of society. I’ve represented judges, police officers, sports figures, actors. It covers all cross-sections of society, all income levels. This is the kind of thing that can happen to anybody.
How did you become a DUI lawyer?
Actually that was by accident. I was looking for a place where I could do criminal defense in law school—I realized I wanted to do trial work—and I got a job with a small law firm that’s now defunct, Kalal & Associates, and Kalal was becoming more and more known for defense of drunk driving cases.
I do probably 60 percent drunk driving and 40 percent other criminal cases.
And why trial work in the first place?
I co-chaired and won a big case back in law school in front of Judge [N. Patrick] Crooks—who is now Justice Crooks—he was in Kewaunee County at the time. I loved the judge, loved the whole experience, and did it with the supervision and help of an attorney at the Green Bay Public Defender’s Office. Frankly I couldn’t have cared less if I was on the prosecution side or the defense side. I wanted to get out there in front of juries.
So why did that appeal to you? You act now in community theater. Had you already begun acting by then?
I had, so there could be some parallels there. I have always enjoyed performing. I suppose there’s an element of that in jury trials.
Improvisation, too, I would imagine.
Absolutely. You always have to think on your feet. And being stuck in an office has never appealed to me. And frankly I liked being the underdog. My first client, I can tell you, I thought was absolutely innocent. I felt, “This is so unfair.”
What was the case about?
It was a sexual assault. A man and a woman ended up together and she said it wasn’t consensual. Her husband found out she spent the night with my client, so she told her husband, “Well, he raped me.” I can’t imagine it being charged now, so I should have won it, in retrospect, but it was a great ego boost to a little law student.
It’s a very stressful area of law to be in, because you’re actually playing with somebody’s life. One thing I will say about the drunk driving cases is the consequences seem to be less severe, so most of the time we’re not talking about prison cases—people aren’t going to prison on a drunk driving—so we’re allowed to play a little more and come up with creative defenses.
When you represent them, are you trying to get them off?
It all depends on the case. Sometimes we’re just trying to minimize consequences. I feel good about the fact that the vast majority of my clients get into treatment. It helps their case and oftentimes it helps their life. I had one client, for example, he had 14 drunk driving offenses. He ended up getting completely sober and now speaks around the country about his experiences. I remember him saying things like, “You’d think I would’ve gotten it after about No. 6. But I didn’t.” But we got him treated and I’m not going to see him again, which feels good to me. There’s always plenty of business out there.
I read that drunk driving is the most common crime in America.
I believe that. Other than maybe speeding, I think it’s the most common kind of case for defense lawyers.
Could you run us through a typical DUI? How do clients reach you in the first place?
Sometimes the clients take recommendations from other lawyers or former clients. Then they’ll do a Google search to double-check. I usually talk to people for maybe 15 minutes on the phone. I tell everybody costs up front. If people can’t afford me I tell them, “I’ll get you a cheaper lawyer; I’ll help you either way.”
Then what happens?
The four-to-six-month period I call the information-gathering process. I get the police reports, I get the videos, we order the dispatch tapes. I go ahead and run open records requests on how the machines were doing—either the breath test machine or the blood test machine. We get huge files on everything.
There’s something called an administrative review, and in a case where there’s a [breath or blood] test I go ahead and subpoena the police officers to that hearing. That’s usually held before the case even starts. So I’m able to get a feeling for whether this case is likely to be one where there were some problems, and the person shouldn’t be convicted of drunk driving, or if it was pretty much a cut-and-dry case and we’re looking to minimize consequences.
In the meantime, I’m giving my client a list of treatment places. I’d like them to get an assessment and find out if they have any issues they need to deal with. Some people don’t like that. Other people have already started that process.
Then the court appearances start. We usually get to the point about four months down the line, where, at the final offer from the prosecutor, we’re making some decisions. Do we want to fight a motion hearing? A suppression motion? Is this a trial case? Is this a plea case? There are so many different areas where a case can go, so it’s hard to explain a typical one.
Then it’s up to the client. Would you like your trial? Would you like a motion hearing? Would you like to take the offer? I give a percentage chance of prevailing and let them choose.
Generally speaking, these cases take four months, although I’ve got one going on now for five years.
You’re kidding. What’s that about? Can you talk about it?
That one I can’t. I have one case that I did in Municipal Court 10 years ago and I still don’t have a decision. [Laughs] I think the judge just didn’t want to decide. It was a very scientific, very technical case, and the prosecutor and I still joke about that one whenever we see each other.
Ten years ago. And the judge is still trying to figure it out.
My guess is he’s not going to figure it out. It’s just gone away.
Have you had many dealings with Mothers Against Drunk Driving (MADD)?
You know, lawyers get nasty messages from the public all the time, but I have never had a bad dealing with MADD. I’ve worked with MADD. I was one of the two defense attorneys that helped set up the victim impact panels in Wisconsin, so I worked with people from MADD, I worked with judges, worked with Commissioner Todd Meuer here in Dane County. I do not believe in butting heads when it’s not necessary. I understand MADD’s position. I think they understand my position. We may not agree with tactics all the time but I’ve only had good experiences [with the organization].
You mentioned nasty messages?
Sure. Around the country, lawyers forward these letters—I’m on a listserv—or they just send them to me and ask, “What do you think?” Sometimes lawyers will fire back but I always tell people, “You have to think about where this is coming from. We all have families here. And if my child was hit by a drunk driver, I would absolutely want revenge. I’d want justice.” I think if you understand everyone’s point of view, and where people are coming from, better things can happen. I don’t think throwing people in prison is necessarily the answer—it’s not going to keep us safer—so I’m kind of in a strange position here, where I sympathize with my clients, I sympathize with victims, and I generally like the people in this system.
Do you represent people who are charged with more than DUIs? Homicides?
I do get my share of those. They’re just horrific. I remember one, oh, a while back, it was a horrible, horrible case. Mothers Against Drunk Driving became involved in that. This boy, a college-age boy, died, and he was a friend of my client’s. [He was] a passenger [in his car].
That was a case where I learned a big lesson about sentencing and victims. I remember going up to this kid’s mom and dad, and saying, “I am really sorry, and I am not going to say anything in there to make it hurt more.” The father was angry and he wouldn’t talk to me, and the mother just nodded. But she got up on the stand. [The family] was going to be arguing for 20 years prison, but she got up, and was sobbing, and saying she wanted mercy for my defendant. And I thought, “You know, I think people just need to talk.”
Lately, whenever there’s a horrific case, I always offer to set up a meeting with the victim and the defendant—if the victim wants to talk to the defendant and let the defendant know how they were hurt by this. And sometimes people take me up on that. They just want to be heard. The justice system separates all of us. So the defense is on one side, and we’re not supposed to talk to victims; the prosecutor’s on one side, and everybody’s separated. But sometimes people want to be heard. They need others to understand how much this has affected them. It’s called restorative justice. That’s something I’ve really learned in the second half of my career.
Your other criminal defense cases—is there anything that ties them together?
One thing we’re looking at in any type of case [is] police procedure. Was the search a good one? Was everything done lawfully? Were confessions taken in a proper manner? So there’s a lot of overlap on Fourth, Fifth and Sixth Amendment issues.
Frankly, it’s a lot easier to win any other criminal defense case than a drunk driving. I could represent someone on a sexual assault, and juries will like that person better than they’re going to like a drunk driver.
So how do you deal with that as an attorney?
The best thing you do is recognize it. We talk about it with juries, we talk about it with judges. I’m representing the people who I think are the most hated.
What’s been your toughest case?
DUI homicides are probably toughest, because you feel horrible for everybody. It’s horrible, obviously, for the moms and dads—and I’m a mom. I actually sat there and started crying during the sentencing one time. I remember the judge talking during that part and [afterward] he said, “You owe me.” I said to him, “Why? Because you saved me when I started crying?” And he said, “Well, I gave you what you wanted and I took over when you started losing it.”
What was that case?
The same one. Where the mom got on the stand and said, “I want mercy.” It was very, very touching.
You just ended your term as president of the Wisconsin Association of Criminal Defense Lawyers. What issues did you work on as president?
Raising the private bar rate for people who take public defender appointments. The public defender can’t handle all the business. That’s a big one.
We have a listserv for criminal defense lawyers to learn mentoring for young criminal defense lawyers. We’re starting programs on that, where they can be paired with an elder like myself. [Laughs] When I started, part of the reason I think I had an easy time of it, I had people who took me under their wing and showed me the courthouse and introduced me to everybody. That’s absolutely necessary.
I did seminars for our members—with the help of a lot of good people—about forensic evidence. There’s a big push throughout the country where they’re discovering problems [with forensic evidence]. Fingerprint analysis has been somewhat debunked, so we need to be up on the science. I want our lawyers to be up on the science.
Other than that, I think it was more day-to-day bombs going off.
What drew you to the law in the first place?
I was pre-med in college. I wanted to be a child psychiatrist, and I was going to go to Medical College of Wisconsin, had a freak-out, decided to take the LSAT on a lark to see how I did. I remember my mother reading me my score over the phone and I said, “Guess I’m going to be a lawyer.”
Why LSAT? Was it a doctor or lawyer kind of thing?
I was either going to take the LSAT or the GREs and the LSAT came up first. It was a scheduling thing. There’s a lot in my life that just happened. I’m not the best planner.
Once you began practicing, how did it differ from what you expected?
I used to win all the time as a law student so when I became a lawyer and started getting my head kicked in and losing trials, I was just shocked. I had a very big opinion of myself. [Laughs]
I did have this feeling that it would be exciting all the time? You have this L.A. Law vision of what lawyers look like and what we do, and, well, the drudgery of it is sometimes overwhelming. It’s paperwork. I never really thought I’d have to talk about collecting money from clients. That type of thing.
At a National College for DUI Defense symposium at Harvard, you taught how to present effective openings and closings. What did you say?
The best advice I give is: “Don’t sound like a lawyer.” You pretend you are talking to a person right next to you, and you are looking right at that person. And you’re telling a story. If you get in there, “The evidence will show that blah blah blah,” the jurors’ eyes will glaze over.
You need to talk like yourself. I’m not a person who’s real serious? I tend to joke around. I write better than I talk. I laugh a lot. If something’s ridiculous I call it what it is. Now if you’re a very serious person you’re not going to make jokes. You need to know yourself.
What’s the best piece of advice you’ve received?
“Leave it at the office.” I’m remarried, I’ve got four kids—I had two previous as a single mom—and I think this business can ruin relationships. I wasn’t immune to that when I was younger. You’re immersed. So: Go home. Have fun. My family and I run together, we bike, we do the acting. I need that. And my family needs that.
Let’s talk about the acting. How did you get into it?
Boy. Seventh grade, I got the bug because I played Patty in You’re a Good Man, Charlie Brown. I got to wear the pretty pink dress and cute pigtails, and I got to sing. Stuck with it.
Then Alex, my son, started in second grade. And we both ended up getting involved with both community theater and semi-professional groups—so we get a little bit of money here and there. Musicals are the biggest thing. And my daughter, who’s 6 now, is in musicals all the time, so she’s singing whenever possible.
Any favorite roles you’ve played?
I gotta say Patty. I also played Sister Margaretta in The Sound of Music. But probably my favorite role ever was as a Silly Girl in Beauty and the Beast. They’re the ones that love Gaston. That was fun. I got to be knocked over on stage continuously so I had more bumps and bruises from that. My son played Chip.
Any role you would like to play?
Unfortunately I think I’m too old, but my ultimate role would’ve been Adelaide in Guys and Dolls. I always like the funny roles.
By the way, do you need coffee in the morning? You seem like a very high-energy person.
I talk so fast, don’t I? Court reporters want to kill me. Actually I’ve cut myself back to a cup and a half a day because I have a very high heart rate. That’s just how I am. I think my resting heart rate is something like 130. So caffeine’s bad for me.
Were you always a high-energy person? Even as a little girl?
I never shut up. That’s why I was on stage. My mom just reminded me how I would put on shows with the boy next door, and we’d charge all the neighbors, and somehow I’d be racking up $35 in the summer to put on some horrible show where we sang and played piano for people. [Laughs] I must’ve been the most annoying kid.
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