The Difference Maker
The passion and decorum of J. Bernard Alexander III
Published in 2022 Southern California Super Lawyers magazine on January 20, 2022
Harold Carter Jr. had waited five long years for his day in court. In 2016, he’d been fired from FedEx, where he was employed for a quarter century, working his way up from cargo handler to manager. But when he suffered a spinal cord injury in 2014, FedEx would not accommodate his doctor’s work restrictions. Instead, his workload increased. Eight months after he filed an internal complaint alleging discrimination, harassment and retaliation, he was fired. Even today, 18 months since the March 2019 trial, Carter’s voice swells with rage talking about the case. “For a Black man, it’s brutal going to court,” he says. “I had never been in trouble with the law. I wasn’t some BSer just trying to get some money. My life had gone to hell in a handbasket.”
His attorney, Bernard Alexander, a partner at Alexander Morrison + Fehr, understood that the defense would try to use that anger against him—to flummox him on cross-examination and potentially harm the case. So Alexander orchestrated his production like a movie. He wanted the “bad guys” on the stage first—those who had mistreated a dedicated, hardworking employee—so that by the time the “hero,” Carter, arrived, the jury would already be sympathetic toward him. Any anger he showed would be justified.
The strategy worked. Alexander says Carter “lit up like a Christmas tree throughout the presentation of evidence,” and after two days of deliberation, the jury awarded him $5.3 million. Carter says his dignity was restored, and he credits much of that to how Alexander presented his case.
“When someone is eloquent and factually presents the details in a way that everyone accepts, it doesn’t take all day to recognize sunshine,” Carter says. “He just brings together the jigsaw puzzle in a lot of aha moments. Even the judge was shaking his head.”
At age 60, Alexander’s name is attached to some of the biggest wrongful termination verdicts in California history. In 2011, he secured $1.6 million for a forklift operator whose employer emailed the plaintiff’s medical records to investigators to get him fired. In 2017, he obtained a $10 million award for a 20-plus-year employee who was terminated for taking protected medical leave. In 2018, he won a $3 million verdict for a security guard who was terminated for “job abandonment” after he took emergency leave from work to care for his school-age daughter.
Overall, he has tried more than 60 cases to verdict, and has resolved dozens of binding arbitrations and hundreds of mediations.
And then, last October, there was the Tesla case, the biggest racial discrimination verdict in history. (See sidebar.)
Jonathan D. Andrews, a partner with Atkinson, Andelson, Loya, Ruud & Romo, was the defense attorney in a wrongful termination case that Alexander joined as plaintiff’s co-counsel a year into the case. “The game changes a bit when he joins the plaintiff side,” Andrews says. “He’s been in front of juries and obtained large verdicts, so when he goes to trial, it’s not an empty threat.”
One case that epitomizes Alexander’s work is Flores v. City of Westminster from 2014. Three Latino police officers were relegated to dead-end, second-tier assignments, and, after filing complaints in 2010, the officers experienced workplace retaliation. Alexander, as is typical for him, was brought into the case as co-counsel to manage its complex aspects. He condensed the information into a couple of visuals: how the only special assignments his clients received were as “mall cops,” and how being a “mall cop” never led to a promotion. He linked the “mall cop” assignments to their race and gave the case a name that stuck with the jury: The road to nowhere.
“On the day of the closing, the police department brought in a lot of Latino officers to sit in the first and second row to give the impression that the department was diverse, when it was not,” Alexander says. “On the fly, I explained to the jury why it was important for them to follow the law. I said the true face of the department were the three white officers at the table, not these other officers the department brought in as pawns.”
The jury awarded the officers $3.55 million in damages.
While Alexander often handles employment matters, he considers himself a civil rights attorney first and foremost.
“People don’t like to think of gender, sexual harassment or sexual orientation harassment as a civil rights issue, but it is,” he says. “People tend not to think of civil rights as including employment if it doesn’t have a racial component. However, race is the toughest claim, because people don’t want to believe that race is still an issue.”
Bren K. Thomas, a principal with Jackson Lewis, opposed Alexander in a race discrimination case involving a large grocery store chain. “Some plaintiff attorneys I go up against are just mercenaries; they’re in this just to make money,” Thomas says. “Bernard is a passionate believer in who he’s representing.”
It’s passion mixed with decorum. Alexander has a trim goatee, a warm smile and a calm voice that projects power. He’s the kind of lawyer who shakes his opponent’s hand after losing a case. “When we went to our first lunch, I realized this dude was highly respected by a lot of people,” says his client Carter. “You don’t see grown men clamoring around someone who isn’t a musician or playing sports.”
“He doesn’t play games,” Thomas adds. “When we have discussions about settlements, discovery and other trial issues, you know where he stands. The integrity and straightforwardness benefit his clients. Bernard is quiet, but firm and assertive. He conducts himself in a gentlemanly fashion, but you can tell when he’s getting a little hot under the collar. He gets what I call ‘the stern grandpa voice.’”
While he doesn’t play games, he does love sports. His office is festooned with posters of Kobe Bryant, Kareem Abdul-Jabbar and other basketball greats. Until the pandemic, he played in a weekly game for two decades. He still gets on the court occasionally with his 23-year-old son. (He has two other sons, aged 26 and 28.)
“I’m not even six feet tall, but I was blessed with the ability to jump,” he says. “People don’t expect a short guy to be a difference maker, but I could get rebounds and steals. In any basketball game, I always believe I can win. And that’s also the mentality of a good lawyer.”
Alexander was born near the Coliseum and moved to the Miracle Mile section of Los Angeles in 1965. His parents were social entrepreneurs. His father, after a stint working as a transportation coordinator for Rockwell International, opened group homes for primarily Black and Latino youths involved with gangs. His mother operated group homes for mentally ill outpatients.
At age 13, Alexander got his first paying job—organizing files and typing labels at a law firm. Routine work, but he was entranced. “People seemed to be doing work that was interesting and important,” he recalls. He immediately decided he would become a lawyer. Initially, rather than follow the social activism of his parents, he was thinking of business and real estate law. “At that time, African American lawyers were expected to do civil rights work,” he says. “I wanted to blaze a different trail than everyone expected for me. And here I am, years later, doing exactly what I set out not to do.”
But it wasn’t a straight line. In Alexander’s junior year in high school, his father, “overworked and overweight,” died of a heart attack and their house was foreclosed on. But his mother took out loans so her son could graduate from his private high school. He received his bachelor’s degree from UCLA in 1983, and his JD from Southwestern Law School in 1986.
After graduation, he went to work for an insurance defense firm. “I always wanted to do trial work and nowhere is that better to do than inside a defense firm,” he says. “I tried at least ten cases. I saw how experienced attorneys deal with complicated cases and make complicated cases simple.”
Fittingly, for someone who would become renowned for employment law, he left defense work because of workplace issues. Twice he received performance reviews that, he felt, showed that management had no idea what he was contributing to the firm. “They just took my performance review from the previous year, stamped it and moved on,” he says. “I had done great work and was upset I got an average raise and no recognition.”
He calculated how much work he’d need to pay salaries for himself and a secretary, then made the leap into solo practice. He focused on defense cases but added plaintiff’s work to fill out his schedule. “I got an age discrimination case, settled it, and it wasn’t as hard as I expected it to be,” he says. Over time, he shifted completely to plaintiff’s work.
“I liked contingency work because it was helping individuals,” he says. “I understood the language of defense, and could persuade them when a case should be settled. Because I had valued a lot of cases on the defense side, I tried a bunch of cases when I saw the defense was undervaluing the cases.”
A past president of the California Employment Lawyers Association, Alexander created the CELA Annual Trial College in 2014 to help young plaintiff’s attorneys learn how to value and try their cases and deal with the challenges of employment litigation.
“Clients are the fly in the ointment,” he says. “They are never perfect, and the defense exposes every imperfection. They bring in every person who hated them. I tell the jury they have to apply the law to imperfect people, and imperfect people need the law most.”
He recalls a 2016 case for a client who had been a traffic specialist at DirecTV, responsible for inputting data for on-screen channel guides and scheduling on-air programming. She developed an eye condition that led to more errors at work. DirecTV did not try to reasonably accommodate her and eventually terminated her for an increase in errors.
“She had always gotten excellent performance reviews, but she was also a busybody who got in other people’s business,” he says. “They brought in a litany of people to provide character assassination. I had to find a villain”—her supervisor, it turned out—“who was substantially worse than my client and get the juror to hate that person, so they would forgive my client for being a busybody.”
She was awarded $1.2 million.
“I tell the case through defense witnesses,” Alexander says. “I force them to tell the truth or tell a big lie. Little lies are difficult for the jury because they are so subtle. But if they tell enough little lies, then you push them for the big lie. And if it’s big enough, it leaves a taste in your mouth where the jury says, ‘This just isn’t right.’”
The Tesla Case
Last October, Alexander was lead counsel in the biggest racial discrimination verdict in history. The plaintiff, a Black man who worked at Tesla for nine months, contacted Lawrence Organ of the California Civil Rights Law Group, who in turn contacted Alexander for the trial. “When Larry talked about it, he thought it was the case of a lifetime,” Alexander says. “We proved it to be true.”
Tesla had charged staffing companies with hiring many of its factory workers. “The N-word was used throughout the workplace, including scrawled on the walls, and they basically did nothing about it,” Alexander says. “There were at least four discrete instances where he was subjected to direct harassment. In the last two instances, Tesla stopped the investigations so there wouldn’t be an expressed finding that it was based on race, then orchestrated it so the person would get nominal discipline. … Tesla said they had a zero-tolerance policy, but what we proved is it was really a zero-responsibility policy.”
The jury came back with $6.9 million for emotional damages and $130 million in punitive damages.
While Alexander is proud of the record-setting verdict, what the case means is more important to him: “If Tesla can be held accountable, then everyone knows they can be held accountable.”