Podcast Summary: Emerging Litigation Podcast

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

Host: Tom Hagy
Guest: Jeffrey P. Doss, Partner, Lightfoot, Franklin & White
Date: January 27, 2025

Overview

This episode explores the increasingly significant role of appellate lawyers embedded in trial teams before and during trial—especially in high-stakes, "nuclear verdict" cases. Host Tom Hagy interviews appellate specialist Jeff Doss about how appellate counsel strategize to protect clients, collaborate with trial attorneys, preserve error, and "plant seeds" for possible appeals—often before the trial has even begun.

Key Discussion Points and Insights

The Traditional vs. Emerging Role of Appellate Lawyers

• Traditional View: Appellate lawyers were traditionally seen as the professionals brought in after a bad decision or huge verdict ("to get my ox out of a ditch") (06:04).
• Emerging Practice: Increasingly, clients and firms realize the value of involving appellate counsel before things go wrong. Their involvement can help "prevent you potentially from getting in the ditch, or at least creating...an insurance policy, so to speak." (Jeff Doss, 06:28)

When to Bring Appellate Counsel to Trial

• Risk Assessment: Appellate experts are most likely added to the team in high-risk cases—where exposure is huge, venue is unfavorable, or legal issues are complex and unsettled (07:43–09:37).
• Insurance Policy: Their presence mitigates risk, especially in venues known for "nuclear verdicts" or in serious criminal cases (09:37–10:01).

"That's exactly right, Tom."
— Jeff Doss [10:01], agreeing that risky cases or venues drive early appellate involvement

How Embedded Appellate Counsel Works with Trial Teams

• Timing: Appellate lawyers may be involved:
  • At Pleadings: Shaping early legal arguments, e.g., challenging personal jurisdiction (11:15).
  • Summary Judgment: Tightening the record for potential appeals.
  • Pre-Trial and Trial: Drafting/arguing motions in limine, evidentiary objections, jury instructions, and directed verdict motions (11:15–14:03).
• Discovery: They are rarely involved during discovery—"Some might count me lucky for not having to get involved at that phase..." (11:49).

Strategies and Day-to-Day Practice

• "Working Backwards": Jeff says he mentally drafts the best possible appellate brief and then works back to ensure that necessary arguments and evidence are properly introduced and preserved at trial (14:18).

"I like to think about what would my best appellate brief look like ... and build backwards."
— Jeff Doss [14:18]

• Planting Seeds: Sometimes Doss will suggest to trial counsel to ask witnesses specific questions so the record is primed for appeal (14:18–15:26).
• Avoiding "Inviting Error": Doss warns that teams should not push the judge into legally questionable rulings just for the home-team advantage; it could "invite error" and aid the opponent on appeal (15:41–16:51).

Preserving the Appeal Record

• Dual Focus: It's about both preserving arguments for appeal and protecting favorable verdicts against reversal (15:41–16:51).

Notable Example

• Case Study: As a young associate, Doss worked on a federal criminal case with complex, undeveloped statute law:
  • He developed arguments from the start, through motions to dismiss and jury instructions.
  • Result: The judge granted a motion for judgment of acquittal on half the charges, based on arguments developed and preserved from the beginning (17:04–19:02).

"We knew where we wanted to be eventually in terms of what we wanted the court to say the statute meant... And ultimately...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.”
— Jeff Doss [17:38–18:15]

Collaboration and Division of Labor

• Support Role: Doss frames his job as making trial counsel’s life easier by handling legal technicalities, error preservation, and briefing, so they can focus on persuasion and evidence (19:17–21:08).
• Appellate Phase: After trial, the appellate attorney usually leads appellate briefs/oral argument, but sometimes trial counsel stays involved if the facts are critical (19:17–21:08).

"I'm here for you. I'm here to make your job easier...make sure you're not having to worry about all of the ticky tack things like preservation of error..."
— Jeff Doss [19:29]

Memorable Moments & Quotes

• The "Growing a Beard" Question:

  • Tom (jokingly): "What is the role of the beard in a lawyer? Does it make you a better [lawyer]?"
  • Jeff: "I absolutely think it does, yes." [21:17–21:28]

• Colorful Analogies:

  • "Help me get my ox out of a ditch." (Jeff Doss, 06:07)—on the typical timing of appellate involvement.

Timestamps for Key Sections

• 00:32 – Recent "nuclear verdicts" and the high stakes of modern litigation
• 06:04 – The historic and emerging mission of appellate attorneys at trial
• 07:43 – How and when teams decide to add appellate counsel
• 11:15 – What embedded appellate lawyers actually do before/during trial
• 14:18 – Working backwards from a hypothetical appeal to build the trial record
• 17:04 – Case example: Embedding argument from pre-trial through verdict/acquittal
• 19:17 – The support role: How appellate and trial counsel collaborate
• 21:17 – Closing jokes about legal beards

Summary: Why Appellate Lawyers at Trial Matter

Jeff Doss convincingly argues that appellate lawyers are no longer just the last-ditch “lifeline” after things go wrong—they are essential risk mitigators whose expertise, applied early, helps trial teams build stronger, better-defended cases. Their ideal is to never even end up “in the ditch”—but if things do go south, they are ready, with a bulletproof record for appeal. Their collaboration—focused on preservation, foresight, and record-making—ultimately strengthens both trial and appellate outcomes in today’s high-stakes litigation environment.