Trial Recess: Alex Walsh On The Pleasant Surprises Of Zoom

By Daniel Siegal
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Law360 (June 3, 2020, 10:04 PM EDT) -- Trial attorney Alexandra Walsh doesn't just have her own practice to worry about during the coronavirus pandemic. The Wilkinson Walsh founding partner spoke to Law360 about juggling responsibilities during the crisis and how moving meetings onto Zoom may have had a hidden benefit of keeping ever-distracted lawyers on task.

Alexandra Walsh

The former clerk for U.S. Supreme Court Justice Stephen Breyer left Paul Weiss Rifkind Wharton & Garrison LLP with another renowned trial attorney, Beth Wilkinson, in 2016 and joined several other BigLaw litigators to launch their own firm.

In recent years Walsh has become a go-to trial ace for Bayer AG, persuading juries to reject a certified class action attacking the company's labeling of its One-A-Day vitamins as well as allegations over its blood thinner Xarelto.

During a 30-minute conversation last month, Walsh talked about the importance of finding a connection when meeting with a witness, how Zoom is forcing attorneys to pay more attention during virtual firm meetings and what her firm is doing to keep its young lawyers learning during the court closures.

This interview has been edited for length and clarity.

Where are you sheltering in place?

I'm at my house in northwest Washington [D.C.] with my husband and my four children and my one dog and my two guinea pigs.

We're all spending a lot of quality time together, which honestly is a huge silver lining of this. It has been nice to just have this concentrated time together. Perhaps not including the guinea pigs. But everybody else.

How is it balancing the family life and working from home?

I think that maybe the first week or two there was some 'getting the routines down' and making sure everyone understood, this is when mommy's at work, and when mommy's on a call, and this is what it means when I put the sign up on the door, like, 'No, you may not come in no matter what, go find your father.'

I feel pretty much as busy as ever. I've been very heartened by our clients and opposing counsel and colleagues recognizing that we all have different things that we're having to spend more time on now like homeschooling or caring for your pets, that kind of thing.

What was your trial calendar looking like before all this?

I was supposed to be in trial out in California starting in mid-March. And that case actually got continued right before, literally right before all of this.

So in some ways that has made this a little bit easier, because I had that time carved out and set aside to be trying that case. So that did give me a little bit more room to get my routines in place and all that.

What is that trial about?

It's about Essure. It's a case for Bayer. Essure is a permanent birth control method that Bayer does not market any longer. There are a number of cases that have been filed around the country. The case that was set for trial in March was going to be the first of those cases to go to trial. It's a product liability, failure to warn case, in California state court in Oakland.

How does social distancing impact what you were planning to do to get trial ready?

In that case we were two weeks out, so we were getting there. People were starting to move out to California. But I would say the biggest issue, and this is what's affecting my other work right now, is witness prep.

A huge part of what I do leading right up to trial, and frankly when I first get involved in a new matter, is talk to the people. Talk to the fact witnesses, talk to the experts.

There's no substitute for sitting down and talking with the people who know the facts and the science the best. If my expert is a surgeon at a hospital in Minnesota, I fly out there and go and see where she works and find a quiet place to talk and have her teach me the relevant issues, and that's one thing we just can't do right now.

At first, when we didn't know how long this all was going to last we just pressed pause on all that. But given how long it's gone on, you can only press pause for so long, so we've been doing a lot of Zoom.

It is not a complete substitute, no one would say that. But I will say, I've been pretty impressed by how effective it can be.

How do you know when a remote session of witness prep was successful?

I think that it's just finding that connection and feeling that connection. Are you just talking at the person, or are they just talking back at you? Or are you really having a conversation where you're understanding what the other person is saying?

I think it is a little witness-specific or colleague-specific, with some people it's less effective. But with some busy doctors maybe where you say, 'we're going to do a 90-minute concentrated Zoom session instead of sitting in a conference room for four hours,' you really have them for that 90 minutes.

The proof is in the pudding, when the person is ultimately deposed or takes the stand at trial.

I do a lot of work in big virtual firm settings, where there might be five different law firms involved in the litigation. And you have these weekly calls, there are maybe 40 people on the call. And there may be five of us who do most of the talking, and you always wonder, 'What is the utility of this?'

But we've been doing them as Zooms now. You see that sort of Brady Bunch view and you see everyone's face and I do feel like more people are participating and I just feel more of a connection to people. And frankly I think probably fewer people are just sitting there doing email because we can see them. So I think that's a benefit.

What is it like leading a firm through this crisis?

I was thinking about this yesterday, it was in early or mid-February we were having partner meetings and talking about this, and everyone's sort of like, 'What is this thing, and is it overblown?'

And then it seems like at the very next meeting was when we decided, OK, we're going to close the office and people are going to work from home. And it just happened so quickly.

We closed our office I think relatively early compared to some other firms. Because we're small and we're a small partnership I think in some ways that probably facilitates making quick decisions.

This pandemic has also inflicted massive economic damage, has that impacted your practice at all?

One thing I'll say, one of my focuses of my pro bono work is landlord-tenant work. And there's basically no evictions right now, no eviction actions can be taken but eviction actions can be filed in court. The word is that even just here in D.C. the number of actions that are building up, and once the courts start processing them again, it's really a scary thing for a lot of members of our community.

Have you used technology to keep the firm as whole connected?

We find that the sooner we start exposing young attorneys to jury selection, or just watching a bunch of motions in limine be argued, the more they're able to incorporate all that into the work that they're doing everyday.

Obviously that's not happening right now. And a couple of our trials went away. So some of our senior associates took it upon themselves to organize a virtual training program.

Every Wednesday everyone in the firm, from staff to [co-founder] Beth [Wilkinson] and me, we all dial in and one of the senior associates presents on, say, how to prepare a witness, how to draft a direct examination outline, how to help put a closing deck together as a trial is going on. And it's just been awesome! It's a fun time to tell war stories, and I feel like I'm learning from the stuff that they're presenting.

When courts do reopen, it's going to be very busy. What are you doing to get ready for that crunch?

It's a great question because I think in a time like this there could be an inclination to just get through each day, rather than think long term, and think about long-term needs and what strategic initiatives you should be furthering right now — what your staffing should like and all that.

And then also, I would be surprised to find a trial lawyer who doesn't say, the night before trial starts, 'I am psyched, I am ready to go, I could really use another week.'

So we kind of have that 'other week' right now to think about all those things where you're like, 'it would be really great to understand this part of the case a little bit more.' Or, I think, even more importantly, to pull yourself out of the weeds and step back and say, 'What is the essence of this case? What really matters?'

What are you personally looking forward to most when the stay-at-home orders are lifted?

You know, I just love to be in court. I mean there's no greater rush and joy and exhilaration than when you stand up to address the court or even more so talk to a jury. And it seems like most of what we do is to prepare for those moments.

And I love the preparation. I love working with my colleagues. I love meeting witnesses. I love reading the documents and working on the decks. But there is no substitute for that standing up and saying, 'May it please the court.'

--Editing by Emily Kokoll.

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