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Emerging Litigation Podcast
Appellate Lawyers at Trial: Don't Wait Until Your Ox is in the Ditch with Jeff Doss
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A
Welcome to the Emerging Litigation Podcast. I'm Tom Hagee, 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.
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B
Please.
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A
If you want to reach me, please check out my contact information in the show. Notes Jury verdicts. You've heard of them? There were some whoppers in 2024. There were two from my hometown of Philadelphia, Go Iggles. 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 Nationals, 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. 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 they demonstrate the financial implications of jury verdicts. In case nobody knew that. I like to state the obvious. Then you bring in appellate attorneys. Now, typically they get involved, as everybody knows, and they get involved in the case after a decision has been, you know, been rendered by the trial court or, you know, after the verdict. And the trial court does its thing. So we might think of them as brief riders, 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. But as juries regularly deliver these, these kind of extra large, double X large verdicts, defense counsel will call them nuclear, plaintiffs will call them well reasoned and fair. But you know, 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 the sometimes applies 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. But made me wonder then, 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, that's going to be a no. Do they get involved in jury instructions and motions for Janov? How might they 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. 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 and White 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 as he's as patient as he is intelligent, as I think you will see. Here is my interview with Jeff Doss of Lightfoot, Franklin and White. I hope you enjoy it. Jeffrey Doss, thank you very much for talking with me about this today.
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B
Well, thank you for having me. I appreciate it.
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A
You bet. So we're talking about, I've done the introduction, I've introduced you. So talk to me about the mission of an embedded appellate attorney before trial and during trial. Yeah, yeah, go ahead, tell me about that.
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B
Yeah. So I think 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 by a $10 million, 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 a ditch. Find that super secret argument embedded somewhere in the trial transcript. That'll undo. 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. So as an appellate attorney, my role is often to assist trial counsel in developing a legal strategy well before the jury has 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.
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A
Tell me this, what, how does one determine the need for this position on a trial team based on the type of case? You know, what tells a firm, we want to have this appellate attorney and who makes that decision?
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B
It's often 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, 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, client accused of 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. 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 bringing, 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.
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A
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.
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B
That. That's exactly right, Tom.
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A
So you. You know, you mentioned this, too. So you. You do this solely on defense side, and you also do do this for civil. Civil. Right, That's a word for civil. For civil and criminal trials. And you work with other firms, is that right?
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B
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. And. But yes, it's. 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. Okay.
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A
All right, so tell me a little bit about.
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B
So.
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A
Well, 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?
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B
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. Complaints 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. My role then focuses on making sure that our evidentiary issues are properly preserved. That may be writing and limiting 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 council 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 in, at least in the background, trying to support and help my trial, my trial team.
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A
So you've started talking about what you do. Is there anything else you would say your role is when you're at the council table? I mean, you mentioned, you know, planting seeds. Is there more to your role when you're at the trial?
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B
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. From time to time, for example, I may whisper in trial counsel's ear, hey, 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. Happy to humor me on those.
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A
Okay. And along the way, you're. You're. 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.
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B
That's right. And sometimes it's making sure that we don't go too far. 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 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.
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A
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 any or get anything that might give the other side some grasp or some wedge or whatever to help their appeal. I got it.
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B
That's right.
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A
So do you have any, can you give any examples of where your role as an embedded appellate lawyer, where that has been proven effective?
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B
I'll tell you about the first trial I was ever seriously involved with. I was maybe a second year associate. It 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. 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 pre trial 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. We focused again those arguments at the pre trial 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 for in the. 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.
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A
Talk to me about this, about your, your role on the team and the, and the trial counsels. Kind of like who does what, where's the division of labor and how do you, how do you collaborate with them in that area?
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B
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. Now if we, 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 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.
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A
Well, Jeff Dawes, thank you very much for talking with me about this today.
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B
Well, thank you for having me. I really appreciate it.
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A
It's one additional question. What is the role of the beard in a lawyer? Does it make you a better.
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B
I absolutely think it does, yes.
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A
You think everybody should have one?
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B
Yes, definitely. Absolutely.
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A
They seem to be, they seem to be coming. That wraps up this episode of the emerging Litigation Podcast a production of Critical Legal Content Elitigation to comment on anything you hear here, or if you'd like to participate, please drop me a note at the contact information in the show. Notes this is a production of Critical Legal Content and HP Litigation.