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In the first part of this special guest episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small is joined by Partner Eric Alexander, who leads the firm's Product Liability – Life Sciences Team. Mr. Small talks with Mr. Alexander about the transition from being in the back row of a trial team to having a stand-up role. After reflecting on the beginning of his legal career, Mr. Alexander offers advice for young litigators on how to prepare for a trial and how to best support the attorneys on your team, plus some important don'ts to avoid in the courtroom. Mr. Alexander also emphasizes that there is no one way to approach a trial. Taking an approach that fits your case and fits who you are is important and will help you to come across as genuine.
Podcast Transcript
Dan Small: Welcome to this episode of The Trial Lawyer's Handbook podcast. We are thrilled to welcome my Washington, D.C., Partner Eric Alexander, who is an extraordinary trial lawyer and teacher of trial practice. Eric, welcome to the podcast.
Eric Alexander: I'm very thankful to be here with you, Dan.
Dan Small: So, Eric, look, you are the team leader of the firm's Product Liability and Life Sciences Team, and you're involved in all kinds of incredibly complicated trials and managing litigation. But let's go back, let's begin at the beginning. Tell us, now that you're managing and trying these incredibly complicated cases, what was your first trial experience?
Eric Alexander: So, it's interesting to me that nobody ever tells you when you transition from like a young lawyer or a new trial lawyer to a veteran. It does seem to be a process, and if you pause to look back, you know, maybe you miss something, but it's an interesting experience to think back. You know, Dan, when I was an associate, because I'll set aside clerking, you have no idea what's going on at trials when you watch anything while you're clerking for a judge. The first trials that I had anything to do with, I was afar. We had an approach for our pharma client, the trial I remember was in Mississippi, where everybody stayed in the office. We had a very small away team because we wanted to have a very small footprint in court. So that registers with me a little bit, but I think what really registered with me more is when I was a little bit older, late 20s, early 30s, I was involved in the back row, sometimes at the table, but in the more supporting role in diet drug trials. And we had a bunch everywhere. And also at the same time I had a bunch for another drug. So we're just like big bad pharma, often little towns, injured person, high-stakes trials. And I had the opportunity to work with a number of people who were really good trial lawyers, big machers in their local town or former U.S. Attorneys, all of these big shots. And they had very different styles. And so one of the things that really resonated with me — less so at the time, more so when I was looking back a little bit — was this idea that there's no one way to do it. You got to be you, and you got to take an approach that fits your case, fits who you are, and come across as genuine. Which they don't teach much of in trial practice in law school, this sort of like be yourself, have a mirror there, and realize how you're coming across, and who you are, and what you can pull off.
Dan Small: So I'm a new lawyer, and somehow or other, I've been handed my first opportunity to stand up in court and examine a witness. Any advice for me?
Eric Alexander: Sure. I mean, I think there are a couple of those old B's, if you will. You better be prepared, right? From my perspective, you better be precise. You better be technical. You better be efficient. And again, the tie-in to what I said earlier, you better be yourself, because if you're imitating somebody else or you're trying to be bombastic and you're not a bombastic person or you're trying to go fast and you are not a fast talker, it's going to come across poorly for the jury. And then the adjunct to that is you have to have, and frankly, for me, this is one of the hardest things to really learn over time — I'm not talking beyond legal practice, maybe there too — but to be honest and aware of how you come across, what the jury is absorbing, whether you have the credibility to be as aggressive as you might want, whether you're not scoring points and you need to get the hell out of there. That sort of self-awareness is really hard to develop, but that would be part of my advice: If you don't start from the beginning thinking that's part of your job as a trial lawyer, how you're coming across, how you are interacting with opposing counsel, your co-counsel, your paralegal, the judge — because the eyes are on you — then you're not going to develop in a way that I think you want to develop as a trial lawyer.
Dan Small: I've talked before on this podcast about the importance of getting feedback from any and all sources. How do you get to that honesty, which I couldn't agree more is so important?
Eric Alexander: There are two parts. There's the recipient of the advice from the sage people, and there's the people who give the advice. And listen, some people do not want to get advice. Some people are going to be very defensive in how they take it, and some people are going to seek it out. As the more senior person, like this magic shift to, I'm a veteran, I'm not a baby anymore, and you're in the position of trying to give feedback, I think you have to offer it. And I think you have to offer it with the predicate that it's going to be honest and that they have to take it with the idea that it's to make them better. So listen, if you're in trial, and my trial experience generally is these are 100-hour weeks, right? If I do a big drug or device trial and it's going to last several weeks, you're working 100 hours a week, right? Not counting your decompression time or sleep. But how do you make the extra time while it's fresh in your mind? I think that it is part of your obligation. Maybe it's a Sunday afternoon before the witness comes in for the prep session, to sit down and give the advice. And maybe what you do along the way is you say, listen, I have some thoughts on how you did in court yesterday, I have some thoughts on how maybe we can do better, and make sure you seek me out. I just think it's really hard for everybody to find time for that. And it's, again, it's really hard for people to find it in themselves to take advice that they might not want to hear. They're like, oh my god, I was amazing, I was so fast and it was so efficient. You might be like, you pushed a lot of paper around and made a lot noise and turned your back on the jury and a bunch of things people just aren't aware of that the extra set of eyes is going to see.
Dan Small: I agree. So from that seat on the back bench, hoping to stand up, how did you morph into this extraordinary product liability practice with these enormous trials all over the country?
Eric Alexander: So I will have to defer on whether I agree or disagree that I'm extraordinary.
Dan Small: We'll take that as a given.
Eric Alexander: Well, I mean, I'm not the most modest person, I'm fairly aggressive in court, but I'll fake a little modesty here and see how it comes across. So I had an opportunity originally in a series of diet drug trials. And they were really interesting because the court in Philadelphia, where most of these were, that I had a lot of involvement kind of in a more stand-up role, were what they called reverse bifurcated. So what you did, because we had a national settlement and these were opt-outs with limited rights, like no punitives, is we tried medical causation and damages first. And if the plaintiff won, you know, we could go to a second phase, but that's how it was. And so generally, you narrowed the issues, a lot of the trials were fast and furious. We had, you know, sometimes four or five trials going on in the same courthouse at the same time. Occasionally, you had to pop over the street if they didn't have anywhere to put you, they put you in the criminal court or whatever. But it was just like really intense, every month, and that's when I got the opportunity. I think that's unusual in the sense that high-stake trials are so often reserved for the grizzled veterans, that how do you ever get in there and show that you can do it unless you get a chance? And I think it was an unusual situation, and I think one of the things that I was able to do there and then take with me later was, it was like my first bit of advice for the newbie, is to be prepared. I knew the science really well. I knew the liability and expert case really well. I had done a lot of work deposing and doing motions practice and kind of overseeing a lot of things related to the liability experts. Who, back then, the plaintiffs would generally run their case through a liability expert. And so even in these reverse bifurcated cases that were supposed to be about causation, they would put these people up and just try to inject all sorts of inflammatory stuff. So I was able to come in with this idea that I knew an area really well, I wasn't afraid of the experts on the other side no matter how many degrees or professorships they held or whatever, and that's where I cut my teeth, those sorts of cases.
Dan Small: So I want to come back to expert witnesses later, because that's a whole other very important thing. But talk to me a little bit about trying cases. What's your favorite part of it?
Eric Alexander: Ooh, my favorite part is redirect or recross, depending on the court.
Dan Small: Yeah.
Eric Alexander: Where the clock's ticking down, like, you know the person has to go before the lunch break or the court's stopping at 4:30 come hell or high water and the other side hands you their expert back and you got four minutes and you got to do it. That is my favorite part by far, this sort of like, what are my top points? How do I narrow them down? How do I do it in time? What's the order? And I have a fairly specific sort of way that I do it that's really low-tech. Like take the exhibit, put a little note on it —
Dan Small: Thank God for Post-Its.
Eric Alexander: Yes, yes, yay 3M. Good job. But that's what it is. It's on your feet. You can't fake knowledge. You can't go slow. You can't hem and haw. You can't goof around. This sort of like, I'm going to make three points, I think I can make five, I think I can fit it in, you know, whatever it is, and I'm going to end on a bang. I'm a big believer in two things that are related to this. With your examination, you want to start and end strong, whether it's direct or cross. I want to get the jury's attention, particularly if the other side put up an expert and they were really good, like punch them in the nose early, figuratively, mind you, figuratively, not actually punch them.
The second is in addition to beginning and ending strong, it often becomes a very effective approach when you have layers of back and forth with qualified opposing counsel to make it be about the credibility of the opposing lawyer. Now some judges let you do a little more than others, but it's not just that he didn't show you this part of this document thing. It's this vibe of, especially if you're limited on time, that you're going to convey this message: The other side was playing fast and loose with the facts. I don't have enough time to debunk everything that they did, but I want to let you know that that lawyer, who spent three hours on cross of my expert, was playing fast and loose and don't believe all of the concessions. We have responses to that. There's omissions, there's shade, there's context. So I think both of those are really important. And when you get to that last round of questioning, you know it has to be short, you know under Rule 611 it's supposed to be within the scope of the prior round of questioning or relate to credibility. But if you can turn it into an attack, a good attack, on the credibility of opposing counsel, like even with your own witness, I find that to be very effective.
Dan Small: All right, so I'm a young associate and I'm sitting there at the table and my job is to help you with a particular witness. What do you expect, what do you hope to get from me?
Eric Alexander: So I think there are three physical spaces to think about in connection with this. One is, you know, back at the office before you get to court, how you do a cross outline or how you do a direct outline, how do you do a mock? I mean, again, that would take hours to discuss the right way to do that stuff. But the lawyer helping you better know the substance. They better know that witness' testimony, they better know the pitfalls, they better know what you want, which for you as the questioner, if they're just in the backup role, starts with being really direct with them about your expectations and your game plan, but listening to their ideas along the way. How do you do an outline, right? How do you prep a witness? How do you do a good mock cross of your own witness, if that's what you're talking about?
The second is in court. Sitting there, maybe at the table with you, handing you stuff, maybe in the front row, whatever the situation is. But we're hot, right? Like the questions are being asked by us or the other side. And that is a weird thing. Again, one of those things you learn over time, that jury is watching you, right. This is more the "don't" that you tell them. Don't react to points scored by the other side, don't look frustrated, don't look disorganized, don't look like you're having arguments. I've seen so many opposing counsel, you know, maybe sometimes on my side, where you're just kind of like, I wish you would just hold it for the break.
Dan Small: Yeah.
Eric Alexander: Like, you're visibly arguing in front of the jury, or you're looking mad at the judge's rulings, whatever it is. The jury's watching you and they pick up on that. If you represent like a big corporate defendant against a little guy, the downside of doing that poorly is heightened.
Then the third thing is approaching you during a break. Let's say you get a chance, there's a break before you begin your cross, giving you the succinct, helpful, here's this document I think you want, here's why you want it, I think you probably noticed this, but here's this thing I said. That choice of how you do it, how you support without being overwhelming, and that ties back to when we're in session, in addition to you got to put the blinders on it and look like nothing's registering with your stone face. You should be thinking along with it. You should be thinking of like, OK, I think we're going to cover this in cross or, they already addressed this pretty well, we probably should drop it. I want people to think along with that. And listen, teaching somebody to think or encouraging somebody to think with rewards for doing a good job is a big part of mentoring younger lawyers. And this is a very precise situation where this sort of stuff comes up.
Dan Small: Absolutely. One funny story about the jury watching you. Many years ago as a prosecutor, I tried a month-long trial down in Texas, and the courtroom was a weird setup. It was a very narrow courtroom. And so the prosecution table was right next to the jury box and the defense table was behind us. And during the course of a month-long trial, as you know, you hopefully develop some kind of a bond with the jury. And apparently, I succeeded because at one of the breaks, the jury marshal came up to me and said, very quietly, "The jury wants you to know that defense counsel is reading your notes over your shoulder." And so after the break, I took out a fresh pad and I wrote in big letters "Hi, Bob" — not his real name — and put it out there. And sure enough, at the next break he came up to me very upset saying, "I wasn't reading over your shoulder!" Well, wait a minute, then how do you know I said "Hi, Bob?" Anyway —
Eric Alexander: That's great, Dan. The relationship with all court staff in front of the jury, again, is one of those things that's like a 300 level course, right? Like, I want the court reporter to like me. I want the jury to notice if the court staff makes a face at the plaintiff's counsel. I want to win all of those interactions.
Dan Small: Absolutely. Eric Alexander, thank you so much for joining us on The Trial Lawyer's Handbook podcast, and hopefully you will come back and we can talk a little bit more. I'd like to really go into your extraordinary knowledge of expert witnesses and corporate rep witnesses. But thank you for joining us.
Eric Alexander: You're welcome, Dan, and I'm happy to return subject to appropriate contract terms, you know, licensing, royalties all that.
Dan Small: We'll negotiate that in due course.
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