Emerging Litigation Podcast

Appellate Lawyers at Trial: Don't Wait Until Your Ox is in the Ditch with Jeff Doss

• Tom Hagy • Season 1 • Episode 99

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Whopping jury verdicts from 2024 illustrate why trial teams sometimes include appellate counsel, because including them -- even as you prepare to defend a high stakes case at trial -- can improve your chances on appeal should a jury hand you a half-billion-dollar verdict.

But what functions do appellate attorneys perform at trial? Are they listening for errors or proactively guiding trial counsel? Do they ever address the court or sit quietly at the defense table or maybe in the back row?

To answer these questions and more is Jeffrey P. Doss, a partner in the White-Collar Criminal Defense & Corporate Investigations practice group at Lightfoot, Franklin & White LLC, a civil defense litigation firm. Jeff has served as appellate counsel for an automobile manufacturer for 10 years. In this role, he has supported trial teams pre-trial, at trial, and post-verdict through appeal. Jeff has developed and implemented strategies to address a range of legal issues, from jury selection errors to expert exclusions, evidentiary objections, and post-verdict challenges to punitive damages awards.

Thanks to Jeff for taking the time to share his insights on this, and for entertaining my curiosity about the efficacy of beards in the practice of law.

If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Tom Hagy:

Welcome to the Emerging Litigation Podcast. I'm Tom Hagy, longtime litigation enthusiast, editor, publisher and now podcaster. I'm founder of HB Litigation, which is now part of Critical Legal Content, a business I founded in 2012 to serve as a content marketing department for law firms and litigation service providers. And now here's today's episode. If you like what you hear, please give us a rating. If you want to reach me, please check out my contact information in the show notes.

Tom Hagy:

Jury verdicts. You've heard of them. There were some whoppers in 2024. There were two from my hometown of Philadelphia, go Eagles. Anybody who knows me knows I have no idea what I'm talking about, but I've heard good things. In one case, the jury awarded $2.25 billion involving Monsanto's Roundup weed killer, which was found to cause blood cancer. The verdict included $2 billion in punitive damages. Now that award was substantially reduced by the trial judge, as often happens. Another Philly jury awarded $725.5 million against ExxonMobil to a former gas station attendant and mechanic who developed leukemia after exposure to products that contained benzene. And there were two from Missouri one where a jury delivered $495 million against Abbott Labs in a bellwether trial involving baby formula. The other Missouri jury returned a $462 million verdict in a trial over Wabash National's manufacturer and design of a truck's rear impact guard. The case involved a sedan that struck the rear of the trailer and then slid underneath it, killing the driver and the passenger and the passenger. And then in Texas a jury awarded $847 million against Verizon Wireless to general access solutions in a patent infringement case related to 5G wireless technology. So these cases, obviously big, but they demonstrate the financial implications of jury verdicts. In case nobody knew that, I like to state the obvious.

Tom Hagy:

Then you bring in appellate attorneys. Now, typically get involved, as everybody knows, after a decision has been rendered by the trial court or after the verdict and the trial court does its thing. So we might think of them as brief writers, but their primary role typically is to handle the appeals process. That can be challenging or defending the legal rulings of the lower courts. If a party loses a case and they believe the decision was legally incorrect, if there were legal errors like misinterpretation of law or improper jury instructions, or there were procedural errors during trial, or if a case was dismissed in a manner that the party, the defendant, feels is unjust. That's when they typically are brought in.

Tom Hagy:

But as juries regularly deliver these kind of extra large, double X large verdicts, defense counsel will call them nuclear, plaintiffs will call them well-reasoned and fair. But as more of these large verdicts come in against corporate defendants, preserving avenues of appeal during trial is more important than ever for defendants. That's why one strategy sometimes is to have an appellate counsel at trial even as they prepare for trial. It's kind of an interesting role. It's not done in all cases. It's done typically in these high stakes cases.

Tom Hagy:

This made me wonder, what is the mission of an embedded appellate attorney at trial, or even what is their role before trial. What are they actually doing during these two phases? Did they speak up during trial or did they just take notes, sit in the back and confer and stay out of the way? I think we know that's going to be a no. Do they get involved in jury instructions and motions? For Jano V, how might the advise trial counsel to plant seeds for appeal? I can keep asking these questions into the abyss of podcast universe, which that's what I prefer. You might not.

Tom Hagy:

So I'm going to actually speak to one of these professionals, and he is Jeffrey P Doss. He's a partner in the White Collar Criminal Defense and Corporate Investigations Practice Group at Lightfoot Franklin White, a civil defense litigation firm. As that suggests, Jeff focuses his practice on trial advocacy in white-collar criminal defense and complex civil litigation. He's got a lot of experience conducting internal investigations, both private and public entity investigations. He's defended businesses and individuals in grand jury investigations, administrative enforcement proceedings and criminal prosecutions at trial and appellate levels. He's developed and implemented strategies to address a wide range of legal issues, from jury selection errors to expert exclusions, evidentiary objections and post-verdict challenges to punitive damage awards. I enjoyed speaking with Jeff, who I would characterize him as patient as he is intelligent, as I think you will see. Here's my interview with Jeff Doss of Lightfoot Franklin White. I hope you enjoy it.

Tom Hagy:

Jeffrey Doss, thank you very much for talking with me about this today.

Jeff Doss:

Well, thank you for having me. I appreciate it, you bet.

Tom Hagy:

Talk to me about the mission of an embedded appellate attorney before trial and during trial.

Jeff Doss:

For a long time most lawyers had the understanding of an appellate lawyer as someone who comes in after the fact when things have gone south. You've been hit with a $10 million judgment, your client has been convicted, something really bad has happened in the litigation process and they go to the appellate lawyer and say help me get my ox out of the ditch, find that super secret argument embedded somewhere in the trial transcript that'll undo all of this. But as time has gone on, people have started to realize that appellate counsel can be used effectively before you get in the ditch to prevent you potentially from getting in the ditch, or at least creating sort of an insurance policy, so to speak, a plan about what to do if things do go south. Things do go south. So, as an appellate attorney, my role is often to assist trial counsel in developing a legal strategy well before the jury is ever struck, well before a verdict is ever returned, to help with coming up with that strategy to assist the client ultimately with protecting itself against a potentially adverse verdict.

Tom Hagy:

Tell me, how does one determine the need for this position on a trial team, based on the type of case? What tells a firm "we want to have this appellate attorney, and who makes that decision?

Jeff Doss:

It's often a joint determination by the client and trial counsel. I mean, certainly you have the run-of-the-mill case that goes to trial, for example, where it doesn't make necessarily sense to have an appellate attorney brought in. Maybe it's a he said, she said sort of dispute, maybe the legal issues are well-developed and it's really just going to come down to how things play out in the courtroom and ultimately where the jury comes down. But let's say that you're facing a bad venue, someplace notorious for returning so-called nuclear verdicts. Let's say that you have a criminal client, a client accused of a crime, and the possibility is either acquittal or conviction, where the stakes couldn't be any higher, and you want to create that sort of insurance policy.

Jeff Doss:

In those sorts of cases where exposure is greater, it often makes sense to embed appellate counsel throughout the litigation leading up to the verdict. Sometimes that means being brought in at trial and helping to preserve errors and making sure that you have a good record on appeal. Sometimes it's coming in at the case's outset and pinpointing some potentially dispositive issue that can be developed very early on, and interlocutory relief might be sought from an appellate court, and so there are a lot of variables that go into play when making that decision. Often it's a question of exposure, it's a question of potential for relief, it's a question of whether there is any possibility of obtaining some early relief that would ultimately benefit the client.

Tom Hagy:

Okay, so you've compared this to an insurance policy, which is all about mitigating risk. So it sounds like then, when you see you're in a risky situation, either based on the facts of the case or the venue you're in, this is what drives somebody to say, yeah, we want appellate counsel here right away on the trial team.

Jeff Doss:

That's exactly right, Tom.

Tom Hagy:

You do this solely on defense side, for civil and criminal trials and you work with other firms. Is that right?

Jeff Doss:

That's right. Oftentimes I'll partner with trial counsel at other firms, many of whom I've worked with over the years repeatedly in this role. But yes, it runs the gamut. There are certainly people who do the type of work I do, who focus on plaintiff work. I tend to be more on the defense side, but, yes, I've done civil and criminal work in this capacity.

Tom Hagy:

Typically, as you started off saying, is you think of an appellate lawyer, of course, after a verdict and after trial and all of that. But in this case you're active even before trial and during trial. So can you kind of describe what you do on a trial team before trial and then we can talk about what you do during trial?

Jeff Doss:

Sure, sometimes I get involved in this role very, very early on after the complaint's been filed and we're developing a responsive pleading strategy. So for example, let's say you want to contest personal jurisdiction a particularly thorny area of the law and you want the strongest record possible that you could potentially take up on appeal. It would make sense in certain situations to embed appellate counsel, to get appellate counsel involved at the trial level to brief that thorny legal issue, make sure all of your T's are crossed, i's are dotted, and then think about the procedures that you could use to take that issue up in an interlocutory fashion and potentially seek appellate relief very early on in the case. So that's one end of the spectrum. That's getting involved at the outset. Complaint's been served, the client's trying to develop a responsive pleading strategy. Usually I disappear when the discovery process happens. I rarely get involved during that phase of the case. Some might count me lucky for not having to get involved at that phase of the case. I then will come back in at the summary judgment stage and help with that briefing and developing those legal arguments. That would put our best foot forward and make sure again that the record is tight and nice and complete. Let's say, summary judgment gets denied and we're set for trial.

Jeff Doss:

My role then focuses on making sure that our evidentiary issues are properly preserved. That may be writing in lemonade motions seeking the exclusion of certain evidence or seeking the admission of certain evidence, it may be seeking the exclusion of expert testimony from the opponent, and it also involves the development of jury instructions. That area is particularly ripe for appellate review, and every trial counsel is a little different how they like to use someone like me. Sometimes trial counsel likes to handle all of the arguments in court and be fed what to argue and make sure that someone's kind of looking over their shoulder and ensuring that they're checking the right boxes. Sometimes trial counsel, on the other hand, want me to appear in the case, sit at counsel, table at trial, argue objections, argue jury instructions, argue motions for directed verdict, that sort of thing. So there's some flexibility there in what the role ultimately looks like, but I'm always there, at least in the background, trying to support and help my trial team.

Tom Hagy:

You've started talking about what you do. Is there anything else you would say about your role at the counsel table. You mentioned planting seeds. Is there more to your role when you're at the trial?

Jeff Doss:

Yeah, and the way that I approach the position is I like to work backwards. I like to think about what would my best appellate brief look like, assuming we get a bad verdict? What would my best appellate brief look like? What points would I want to be making to the appellate court? And to that end, I try to make sure that if there's a little piece of evidence we need to shore up a point, if there's an argument we need to develop to make sure it's preserved in the record and build backwards. So here's the appellate brief. In my mind, best case scenario we could argue what do we need to do at trial to ensure that we can make those sorts of arguments eventually on appeal? Can you ask this witness, this or that to make sure that we have those little points that may ultimately be very important down the road? And often trial counsel is happy to humor me on those.

Tom Hagy:

Okay, and along the way, you're making notes of what potential errors or things like that. You're just like you said. You're kind of setting, setting things up based on what you're seeing at trial for what your ideal appellate brief would look like that's right, and sometimes it's making sure that we don't go too far.

Jeff Doss:

Occasionally you'll be in front of a judge who you may be able to convince to take a position that you know is probably a questionable one. It may feel good in the moment right. You may be able to convince to take a position that you know is probably a questionable one. It may feel good in the moment right. You may be trying to introduce a piece of evidence that you think would be really helpful but ultimately you know is probably going to be deemed error. And it's also that piece of it making sure that we are not inviting error into the case to give our opponent an opportunity to set aside a verdict. So it's both ensuring we have that good appellate brief down the road, but also making sure that the verdict, if we are successful, would withstand appellate scrutiny.

Tom Hagy:

Okay, yeah, I hadn't thought about it going the other way. You want to look for errors on the other side. You want your side not to commit anything or anything that might give the other side some grasp or some wedge or whatever to help their appeal. I got it, that's right. So can you give any examples of where your role as an embedded appellate lawyer, where that has been proven effective?

Jeff Doss:

As for an example, I'll tell you about the first trial I was ever seriously involved with. I was maybe a second year associate. was a two week federal criminal case. The government was charging our client with a somewhat esoteric statute, one that had not been widely charged at that point, and so the case law wasn't terribly developed. That, though, gave us an angle to exploit.

Jeff Doss:

We knew where we wanted to be eventually in terms of what we wanted the court to say the statute meant, and I was, as a young member of the trial team, delegated this task of developing the legal arguments, and so I was responsible for the brief writing and the jury instructions, the pretrial motions, all of the things that are now kind of what I focus on for trial work, and we began developing those arguments at the motion to dismiss the indictment.

Jeff Doss:

We focused again those arguments at the pretrial motions regarding the exclusion of evidence, and, ultimately, we made those arguments, reiterating them at the close of the government's case, at a motion for judgment of acquittal, which is the counterpart to a civil motion for directed verdict. Okay, the judge grants the motion for judgment of acquittal and acquits our client of half of the felony charges based on that argument that we had begun developing way back when, when we filed our first motion to dismiss the indictment. And again, that's just a matter of thinking backwards. Where do you want to be at the end of the case? Where do you want to be on appeal and thinking about how do I plant those seeds, how do I develop those themes early on, get the judge thinking about these issues and ultimately, in that case it proved to be effective.

Tom Hagy:

Talk to me about this, about your role on the team and the trial counsels, kind of like who does what, where's the division of labor and how do you collaborate with them in that area?

Jeff Doss:

Sure, so far in my career I've been very fortunate to work with great attorneys who appreciate support. And at the trial court level I view my role as one of support and I try to stay in my lane. I try to do that which makes trial counsel's job easier. So the pitch I often make to trial counsel when I get involved in cases in this role is I'm here for you, I'm here to make your job easier, I'm here to make sure you're not having to worry about all of the ticky-tack things like preservation of error, preparation of briefing in some cases arguing legal issues to the court, so that you can focus on the presentation of the evidence and communicating with the jury in that box. And I found that trial counsel ultimately appreciates the assistance because it does give them the ability to focus on what they do best. And so that's at the trial court level.

Jeff Doss:

Now, if we get an adverse verdict and then we really begin focusing on what this looks like in the appellate court, the roles tend to shift a little bit. I mean, ordinarily appellate counsel tends to begin taking that lead, particularly once you get to the court of appeals and maybe the case is set for oral argument. Ordinarily I'll handle the oral argument on appeal, though not always. Sometimes trial counsel. Sometimes it's really fact-intensive record or something like that and trial counsel may be better suited for it. But I view my role as being collaborative and an adjunct and someone to help make trial counsel's job easier. So far it seemed to work.

Tom Hagy:

Well, Jeff Doss, thank you very much for talking with me about this today.

Jeff Doss:

Well, thank you for having me. I really appreciate it.

Tom Hagy:

I guess. One additional question. What is the role of the beard in a lawyer? Does it make you a better?

Jeff Doss:

I absolutely think it does yes.

Tom Hagy:

You think everybody should have one.

Jeff Doss:

Yes, definitely, absolutely.

Tom Hagy:

They seem to be coming back. That wraps up this episode of the Emerging Litigation Podcast, a production of Critical Legal Content and HB Litigation. If you'd like to comment on anything you hear here or if you'd like to participate, please drop me a note and the contact information in the show notes you.