January 26, 2025 • 22 mins
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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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tom Hagy (00:03):
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:24):
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, pleasecheck out my contact
information in the show notes.
Jury verdicts.
You've heard of them.
There were some whoppers in2024.
(00:45):
There were two from my hometownof Philadelphia, go Eagles.
Anybody who knows me knows Ihave no idea what I'm talking
about, but I've heard goodthings.
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 billionin punitive damages.
(01:07):
Now that award wassubstantially reduced by the
trial judge, as often happens.
Another Philly jury awarded$725.5 million against
ExxonMobil to a former gasstation attendant and mechanic
who developed leukemia afterexposure to products that
contained benzene.
(01:28):
And there were two fromMissouri one where a jury
delivered $495 million againstAbbott Labs in a bellwether
trial involving baby formula.
The other Missouri juryreturned a $462 million verdict
in a trial over WabashNational's manufacturer and
(01:49):
design of a truck's rear impactguard.
The case involved a sedan thatstruck the rear of the trailer
and then slid underneath it,killing the driver and the
passenger and the passenger.
And then in Texas a juryawarded $847 million against
(02:09):
Verizon Wireless to generalaccess solutions in a patent
infringement case related to 5Gwireless technology.
So these cases, obviously big,but they demonstrate the
financial implications of juryverdicts.
In case nobody knew that, Ilike to state the obvious.
Then you bring in appellateattorneys.
Now, typically get involved, aseverybody knows, after a
(02:37):
decision has been rendered bythe trial court or after the
verdict and the trial court doesits thing.
So we might think of them asbrief writers, but their primary
role typically is to handle theappeals process.
That can be challenging ordefending the legal rulings of
the lower courts.
If a party loses a case andthey believe the decision was
legally incorrect, if there werelegal errors like
(02:58):
misinterpretation of law orimproper jury instructions, or
there were procedural errorsduring trial, or if a case was
dismissed in a manner that theparty, the defendant, feels is
unjust.
That's when they typically arebrought in.
But as juries regularly deliverthese kind of extra large,
(03:19):
double X large verdicts, defensecounsel will call them nuclear,
plaintiffs will call themwell-reasoned and fair.
But as more of these largeverdicts come in against
corporate defendants, preservingavenues of appeal during trial
is more important than ever fordefendants.
(03:41):
That's why one strategysometimes is to have an
appellate counsel at trial evenas they prepare for trial.
It's kind of an interestingrole.
It's not done in all cases.
It's done typically in thesehigh stakes cases.
This made me wonder, what is themission of an embedded
(04:01):
appellate attorney at trial, oreven what is their role before
trial.
What are they actually doingduring these two phases?
Did they speak up during trialor did they just take notes, sit
in the back and confer and stayout of the way?
I think we know that's going tobe a no.
Do they get involved in juryinstructions and motions?
For Jano V, how might theadvise trial counsel to plant
(04:26):
seeds for appeal?
I can keep asking thesequestions into the abyss of
podcast universe, which that'swhat I prefer.
You might not.
So I'm going to actually speakto one of these professionals,
and he is Jeffrey P Doss.
He's a partner in the WhiteCollar Criminal Defense and
Corporate InvestigationsPractice Group at Lightfoot
(04:46):
Franklin White, a civil defenselitigation firm.
As that suggests, Jeff focuseshis practice on trial advocacy
in white-collar criminal defenseand complex civil litigation.
He's got a lot of experienceconducting internal
investigations, both private andpublic entity investigations.
He's defended businesses andindividuals in grand jury
(05:09):
investigations, administrativeenforcement proceedings and
criminal prosecutions at trialand appellate levels.
He's developed and implementedstrategies to address a wide
range of legal issues, from juryselection errors to expert
exclusions, evidentiaryobjections and post-verdict
challenges to punitive damageawards.
I enjoyed speaking with Jeff,who I would characterize him as
(05:33):
patient as he is intelligent, asI think you will see.
Here's my interview with JeffDoss of Lightfoot Franklin White
.
I hope you enjoy it.
Jeffrey Doss, thank you verymuch for talking with me about
this today.
Jeff Doss (05:46):
Well, thank you for having me.
I appreciate it, you bet.
Tom Hagy (05:55):
Talk to me about the mission of an embedded appellate
attorney before trial andduring trial.
Jeff Doss (06:10):
For a long time most lawyers had the understanding of
an appellate lawyer as someonewho comes in after the fact when
things have gone south.
You've been hit with a $10million judgment, your client
has been convicted, somethingreally bad has happened in the
litigation process and they goto the appellate lawyer and say
(06:30):
help me get my ox out of theditch, find that super secret
argument embedded somewhere inthe trial transcript that'll
undo all of this.
But as time has gone on, peoplehave started to realize that
appellate counsel can be usedeffectively before you get in
the ditch to prevent youpotentially from getting in the
(06:50):
ditch, or at least creating sortof an insurance policy, so to
speak, a plan about what to doif things do go south.
Things do go south.
So, as an appellate attorney,my role is often to assist trial
counsel in developing a legalstrategy well before the jury is
(07:11):
ever struck, well before averdict is ever returned, to
help with coming up with thatstrategy to assist the client
ultimately with protectingitself against a potentially
adverse verdict.
Tom Hagy (07:29):
Tell me, how does one determine the need for this
position on a trial team, basedon the type of case?
What tells a firm "we want tohave this appellate attorney,
and who makes that decision?
Jeff Doss (07:46):
It's often a joint determination by the client and
trial counsel.
I mean, certainly you have therun-of-the-mill case that goes
to trial, for example, where itdoesn't make necessarily sense
to have an appellate attorneybrought in.
Maybe it's a he said, she saidsort of dispute, maybe the legal
issues are well-developed andit's really just going to come
(08:09):
down to how things play out inthe courtroom and ultimately
where the jury comes down.
But let's say that you'refacing a bad venue, someplace
notorious for returningso-called nuclear verdicts.
Let's say that you have acriminal client, a client
accused of a crime, and thepossibility is either acquittal
(08:34):
or conviction, where the stakescouldn't be any higher, and you
want to create that sort ofinsurance policy.
In those sorts of cases whereexposure is greater, it often
makes sense to embed appellatecounsel throughout the
litigation leading up to theverdict.
(08:55):
Sometimes that means beingbrought in at trial and helping
to preserve errors and makingsure that you have a good record
on appeal.
Sometimes it's coming in at thecase's outset and pinpointing
some potentially dispositiveissue that can be developed very
early on, and interlocutoryrelief might be sought from an
(09:18):
appellate court, and so thereare a lot of variables that go
into play when making thatdecision.
Often it's a question ofexposure, it's a question of
potential for relief, it's aquestion of whether there is any
possibility of obtaining someearly relief that would
(09:39):
ultimately benefit the client.
Tom Hagy (09:41):
Okay, so you've compared this to an insurance
policy, which is all aboutmitigating risk.
So it sounds like then, whenyou see you're in a risky
situation, either based on thefacts of the case or the venue
you're in, this is what drivessomebody to say, yeah, we want
appellate counsel here rightaway on the trial team.
Jeff Doss (10:05):
That's exactly right, Tom.
Tom Hagy (10:10):
You do this solely on defense side, for civil and
criminal trials and you workwith other firms.
Is that right?
Jeff Doss (10:24):
That's right.
Oftentimes I'll partner withtrial counsel at other firms,
many of whom I've worked withover the years repeatedly in
this role.
But yes, it runs the gamut.
There are certainly people whodo the type of work I do, who
focus on plaintiff work.
I tend to be more on thedefense side, but, yes, I've
(10:48):
done civil and criminal work inthis capacity.
Tom Hagy (10:57):
Typically, as you started off saying, is you think
of an appellate lawyer, ofcourse, after a verdict and
after trial and all of that.
But in this case you're activeeven before trial and during
trial.
So can you kind of describewhat you do on a trial team
before trial and then we cantalk about what you do during
trial?
Jeff Doss (11:19):
Sure, sometimes I get involved in this role very,
very early on after thecomplaint's been filed and we're
developing a responsivepleading strategy.
So for example, let's say youwant to contest personal
jurisdiction a particularlythorny area of the law and you
want the strongest recordpossible that you could
(11:42):
potentially take up on appeal.
It would make sense in certainsituations to embed appellate
counsel, to get appellatecounsel involved at the trial
level to brief that thorny legalissue, make sure all of your
T's are crossed, i's are dotted,and then think about the
procedures that you could use totake that issue up in an
(12:04):
interlocutory fashion andpotentially seek appellate
relief very early on in the case.
So that's one end of thespectrum.
That's getting involved at theoutset.
Complaint's been served, theclient's trying to develop a
responsive pleading strategy.
Usually I disappear when thediscovery process happens.
I rarely get involved duringthat phase of the case.
(12:27):
Some might count me lucky fornot having to get involved at
that phase of the case.
I then will come back in at thesummary judgment stage and help
with that briefing anddeveloping those legal arguments
.
That would put our best footforward and make sure again that
(12:48):
the record is tight and niceand complete.
Let's say, summary judgmentgets denied and we're set for
trial.
My role then focuses on makingsure that our evidentiary issues
are properly preserved.
That may be writing in lemonademotions seeking the exclusion
of certain evidence or seekingthe admission of certain
evidence, it may be seeking theexclusion of expert testimony
(13:12):
from the opponent, and it alsoinvolves the development of jury
instructions.
That area is particularly ripefor appellate review, and every
trial counsel is a littledifferent how they like to use
someone like me.
Sometimes trial counsel likesto handle all of the arguments
in court and be fed what toargue and make sure that
(13:37):
someone's kind of looking overtheir shoulder and ensuring that
they're checking the rightboxes.
Sometimes trial counsel, on theother hand, want me to appear
in the case, sit at counsel,table at trial, argue objections
, argue jury instructions, arguemotions for directed verdict,
that sort of thing.
So there's some flexibilitythere in what the role
(13:58):
ultimately looks like, but I'malways there, at least in the
background, trying to supportand help my trial team.
Tom Hagy (14:08):
You've started talking about what you do.
Is there anything else youwould say about your role at the
counsel table.
You mentioned planting seeds.
Is there more to your role whenyou're at the trial?
Jeff Doss (14:21):
Yeah, and the way that I approach the position is
I like to work backwards.
I like to think about whatwould my best appellate brief
look like, assuming we get a badverdict?
What would my best appellatebrief look like?
What points would I want to bemaking to the appellate court?
And to that end, I try to makesure that if there's a little
(14:44):
piece of evidence we need toshore up a point, if there's an
argument we need to develop tomake sure it's preserved in the
record and build backwards.
So here's the appellate brief.
In my mind, best case scenariowe could argue what do we need
to do at trial to ensure that wecan make those sorts of
(15:07):
arguments eventually on appeal?
Can you ask this witness, thisor that to make sure that we
have those little points thatmay ultimately be very important
down the road?
And often trial counsel ishappy to humor me on those.
Tom Hagy (15:29):
Okay, and along the way, you're making notes of what
potential errors or things likethat.
You're just like you said.
You're kind of setting, settingthings up based on what you're
seeing at trial for what yourideal appellate brief would look
like that's right, andsometimes it's making sure that
we don't go too far.
Jeff Doss (15:50):
Occasionally you'll be in front of a judge who you
may be able to convince to takea position that you know is
probably a questionable one.
It may feel good in the momentright.
You may be able to convince totake a position that you know is
probably a questionable one.
It may feel good in the momentright.
You may be trying to introducea piece of evidence that you
think would be really helpfulbut ultimately you know is
probably going to be deemederror.
(16:12):
And it's also that piece of itmaking sure that we are not
inviting error into the case togive our opponent an opportunity
to set aside a verdict.
So it's both ensuring we havethat good appellate brief down
the road, but also making surethat the verdict, if we are
(16:32):
successful, would withstandappellate scrutiny.
Tom Hagy (16:36):
Okay, yeah, I hadn't thought about it going the other
way.
You want to look for errors onthe other side.
You want your side not tocommit anything or anything that
might give the other side somegrasp or some wedge or whatever
to help their appeal.
I got it, that's right.
So can you give any examples ofwhere your role as an embedded
(17:02):
appellate lawyer, where that hasbeen proven effective?
Jeff Doss (18:32):
As for an example, I'll tell you about the first
trial I was ever seriouslyinvolved with.
I was maybe a second yearassociate.
was a two week federalcriminal case.
The government was charging ourclient with a somewhat esoteric
statute, one that had not beenwidely charged at that point,
(18:54):
and so the case law wasn'tterribly developed.
That, though, gave us an angleto exploit.
We knew where we wanted to beeventually in terms of what we
wanted the court to say thestatute meant, and I was, as a
young member of the trial team,delegated this task of
(19:16):
developing the legal arguments,and so I was responsible for the
brief writing and the juryinstructions, the pretrial
motions, all of the things thatare now kind of what I focus on
for trial work, and we begandeveloping those arguments at
the motion to dismiss theindictment.
(19:37):
We focused again those argumentsat the pretrial motions
regarding the exclusion ofevidence, and, ultimately, we
made those arguments,reiterating them at the close of
the government's case, at amotion for judgment of acquittal
, which is the counterpart to acivil motion for directed
verdict.
Okay, the judge grants themotion for judgment of acquittal
(20:00):
and acquits our client of halfof the felony charges based on
that argument that we had begundeveloping way back when, when
we filed our first motion todismiss the indictment.
And again, that's just a matterof thinking backwards.
Where do you want to be at theend of the case?
Where do you want to be onappeal and thinking about how do
(20:23):
I plant those seeds, how do Idevelop those themes early on,
get the judge thinking aboutthese issues and ultimately, in
that case it proved to beeffective.
Tom Hagy (20:35):
Talk to me about this, about your role on the team and
the trial counsels, kind oflike who does what, where's the
division of labor and how do youcollaborate with them in that
area?
Jeff Doss (20:49):
Sure, so far in my career I've been very fortunate
to work with great attorneys whoappreciate support.
And at the trial court level Iview my role as one of support
and I try to stay in my lane.
I try to do that which makestrial counsel's job easier.
(21:11):
So the pitch I often make totrial counsel when I get
involved in cases in this roleis I'm here for you, I'm here to
make your job easier, I'm hereto make sure you're not having
to worry about all of theticky-tack things like
preservation of error,preparation of briefing in some
(21:32):
cases arguing legal issues tothe court, so that you can focus
on the presentation of theevidence and communicating with
the jury in that box.
And I found that trial counselultimately appreciates the
assistance because it does givethem the ability to focus on
what they do best.
And so that's at the trialcourt level.
(21:55):
Now, if we get an adverseverdict and then we really begin
focusing on what this lookslike in the appellate court, the
roles tend to shift a littlebit.
I mean, ordinarily appellatecounsel tends to begin taking
that lead, particularly once youget to the court of appeals and
(22:16):
maybe the case is set for oralargument.
Ordinarily I'll handle the oralargument on appeal, though not
always.
Sometimes trial counsel.
Sometimes it's reallyfact-intensive record or
something like that and trialcounsel may be better suited for
it.
But I view my role as beingcollaborative and an adjunct and
someone to help make trialcounsel's job easier.
(22:39):
So far it seemed to work.
Tom Hagy (22:40):
Well, Jeff Doss, thank you very much for talking with
me about this today.
Jeff Doss (22:43):
Well, thank you for having me.
I really appreciate it.
Tom Hagy (22:51):
I guess.
One additional question.
What is the role of the beardin a lawyer?
Does it make you a better?
Jeff Doss (22:59):
I absolutely think it does yes.
Tom Hagy (23:02):
You think everybody should have one.
Jeff Doss (23:03):
Yes, definitely, absolutely.
Tom Hagy (23:08):
They seem to be coming back.
That wraps up this episode ofthe Emerging Litigation Podcast,
a production of Critical LegalContent and HB Litigation.
If you'd like to comment onanything you hear here or if
you'd like to participate,please drop me a note and the
contact information in the shownotes you.
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:24):
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, pleasecheck out my contact
information in the show notes.
Jury verdicts.
You've heard of them.
There were some whoppers in2024.
(00:45):
There were two from my hometownof Philadelphia, go Eagles.
Anybody who knows me knows Ihave no idea what I'm talking
about, but I've heard goodthings.
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 billionin punitive damages.
(01:07):
Now that award wassubstantially reduced by the
trial judge, as often happens.
Another Philly jury awarded$725.5 million against
ExxonMobil to a former gasstation attendant and mechanic
who developed leukemia afterexposure to products that
contained benzene.
(01:28):
And there were two fromMissouri one where a jury
delivered $495 million againstAbbott Labs in a bellwether
trial involving baby formula.
The other Missouri juryreturned a $462 million verdict
in a trial over WabashNational's manufacturer and
(01:49):
design of a truck's rear impactguard.
The case involved a sedan thatstruck the rear of the trailer
and then slid underneath it,killing the driver and the
passenger and the passenger.
And then in Texas a juryawarded $847 million against
(02:09):
Verizon Wireless to generalaccess solutions in a patent
infringement case related to 5Gwireless technology.
So these cases, obviously big,but they demonstrate the
financial implications of juryverdicts.
In case nobody knew that, Ilike to state the obvious.
Then you bring in appellateattorneys.
Now, typically get involved, aseverybody knows, after a
(02:37):
decision has been rendered bythe trial court or after the
verdict and the trial court doesits thing.
So we might think of them asbrief writers, but their primary
role typically is to handle theappeals process.
That can be challenging ordefending the legal rulings of
the lower courts.
If a party loses a case andthey believe the decision was
legally incorrect, if there werelegal errors like
(02:58):
misinterpretation of law orimproper jury instructions, or
there were procedural errorsduring trial, or if a case was
dismissed in a manner that theparty, the defendant, feels is
unjust.
That's when they typically arebrought in.
But as juries regularly deliverthese kind of extra large,
(03:19):
double X large verdicts, defensecounsel will call them nuclear,
plaintiffs will call themwell-reasoned and fair.
But as more of these largeverdicts come in against
corporate defendants, preservingavenues of appeal during trial
is more important than ever fordefendants.
(03:41):
That's why one strategysometimes is to have an
appellate counsel at trial evenas they prepare for trial.
It's kind of an interestingrole.
It's not done in all cases.
It's done typically in thesehigh stakes cases.
This made me wonder, what is themission of an embedded
(04:01):
appellate attorney at trial, oreven what is their role before
trial.
What are they actually doingduring these two phases?
Did they speak up during trialor did they just take notes, sit
in the back and confer and stayout of the way?
I think we know that's going tobe a no.
Do they get involved in juryinstructions and motions?
For Jano V, how might theadvise trial counsel to plant
(04:26):
seeds for appeal?
I can keep asking thesequestions into the abyss of
podcast universe, which that'swhat I prefer.
You might not.
So I'm going to actually speakto one of these professionals,
and he is Jeffrey P Doss.
He's a partner in the WhiteCollar Criminal Defense and
Corporate InvestigationsPractice Group at Lightfoot
(04:46):
Franklin White, a civil defenselitigation firm.
As that suggests, Jeff focuseshis practice on trial advocacy
in white-collar criminal defenseand complex civil litigation.
He's got a lot of experienceconducting internal
investigations, both private andpublic entity investigations.
He's defended businesses andindividuals in grand jury
(05:09):
investigations, administrativeenforcement proceedings and
criminal prosecutions at trialand appellate levels.
He's developed and implementedstrategies to address a wide
range of legal issues, from juryselection errors to expert
exclusions, evidentiaryobjections and post-verdict
challenges to punitive damageawards.
I enjoyed speaking with Jeff,who I would characterize him as
(05:33):
patient as he is intelligent, asI think you will see.
Here's my interview with JeffDoss of Lightfoot Franklin White
.
I hope you enjoy it.
Jeffrey Doss, thank you verymuch for talking with me about
this today.
Jeff Doss (05:46):
Well, thank you for having me.
I appreciate it, you bet.
Tom Hagy (05:55):
Talk to me about the mission of an embedded appellate
attorney before trial andduring trial.
Jeff Doss (06:10):
For a long time most lawyers had the understanding of
an appellate lawyer as someonewho comes in after the fact when
things have gone south.
You've been hit with a $10million judgment, your client
has been convicted, somethingreally bad has happened in the
litigation process and they goto the appellate lawyer and say
(06:30):
help me get my ox out of theditch, find that super secret
argument embedded somewhere inthe trial transcript that'll
undo all of this.
But as time has gone on, peoplehave started to realize that
appellate counsel can be usedeffectively before you get in
the ditch to prevent youpotentially from getting in the
(06:50):
ditch, or at least creating sortof an insurance policy, so to
speak, a plan about what to doif things do go south.
Things do go south.
So, as an appellate attorney,my role is often to assist trial
counsel in developing a legalstrategy well before the jury is
(07:11):
ever struck, well before averdict is ever returned, to
help with coming up with thatstrategy to assist the client
ultimately with protectingitself against a potentially
adverse verdict.
Tom Hagy (07:29):
Tell me, how does one determine the need for this
position on a trial team, basedon the type of case?
What tells a firm "we want tohave this appellate attorney,
and who makes that decision?
Jeff Doss (07:46):
It's often a joint determination by the client and
trial counsel.
I mean, certainly you have therun-of-the-mill case that goes
to trial, for example, where itdoesn't make necessarily sense
to have an appellate attorneybrought in.
Maybe it's a he said, she saidsort of dispute, maybe the legal
issues are well-developed andit's really just going to come
(08:09):
down to how things play out inthe courtroom and ultimately
where the jury comes down.
But let's say that you'refacing a bad venue, someplace
notorious for returningso-called nuclear verdicts.
Let's say that you have acriminal client, a client
accused of a crime, and thepossibility is either acquittal
(08:34):
or conviction, where the stakescouldn't be any higher, and you
want to create that sort ofinsurance policy.
In those sorts of cases whereexposure is greater, it often
makes sense to embed appellatecounsel throughout the
litigation leading up to theverdict.
(08:55):
Sometimes that means beingbrought in at trial and helping
to preserve errors and makingsure that you have a good record
on appeal.
Sometimes it's coming in at thecase's outset and pinpointing
some potentially dispositiveissue that can be developed very
early on, and interlocutoryrelief might be sought from an
(09:18):
appellate court, and so thereare a lot of variables that go
into play when making thatdecision.
Often it's a question ofexposure, it's a question of
potential for relief, it's aquestion of whether there is any
possibility of obtaining someearly relief that would
(09:39):
ultimately benefit the client.
Tom Hagy (09:41):
Okay, so you've compared this to an insurance
policy, which is all aboutmitigating risk.
So it sounds like then, whenyou see you're in a risky
situation, either based on thefacts of the case or the venue
you're in, this is what drivessomebody to say, yeah, we want
appellate counsel here rightaway on the trial team.
Jeff Doss (10:05):
That's exactly right, Tom.
Tom Hagy (10:10):
You do this solely on defense side, for civil and
criminal trials and you workwith other firms.
Is that right?
Jeff Doss (10:24):
That's right.
Oftentimes I'll partner withtrial counsel at other firms,
many of whom I've worked withover the years repeatedly in
this role.
But yes, it runs the gamut.
There are certainly people whodo the type of work I do, who
focus on plaintiff work.
I tend to be more on thedefense side, but, yes, I've
(10:48):
done civil and criminal work inthis capacity.
Tom Hagy (10:57):
Typically, as you started off saying, is you think
of an appellate lawyer, ofcourse, after a verdict and
after trial and all of that.
But in this case you're activeeven before trial and during
trial.
So can you kind of describewhat you do on a trial team
before trial and then we cantalk about what you do during
trial?
Jeff Doss (11:19):
Sure, sometimes I get involved in this role very,
very early on after thecomplaint's been filed and we're
developing a responsivepleading strategy.
So for example, let's say youwant to contest personal
jurisdiction a particularlythorny area of the law and you
want the strongest recordpossible that you could
(11:42):
potentially take up on appeal.
It would make sense in certainsituations to embed appellate
counsel, to get appellatecounsel involved at the trial
level to brief that thorny legalissue, make sure all of your
T's are crossed, i's are dotted,and then think about the
procedures that you could use totake that issue up in an
(12:04):
interlocutory fashion andpotentially seek appellate
relief very early on in the case.
So that's one end of thespectrum.
That's getting involved at theoutset.
Complaint's been served, theclient's trying to develop a
responsive pleading strategy.
Usually I disappear when thediscovery process happens.
I rarely get involved duringthat phase of the case.
(12:27):
Some might count me lucky fornot having to get involved at
that phase of the case.
I then will come back in at thesummary judgment stage and help
with that briefing anddeveloping those legal arguments
.
That would put our best footforward and make sure again that
(12:48):
the record is tight and niceand complete.
Let's say, summary judgmentgets denied and we're set for
trial.
My role then focuses on makingsure that our evidentiary issues
are properly preserved.
That may be writing in lemonademotions seeking the exclusion
of certain evidence or seekingthe admission of certain
evidence, it may be seeking theexclusion of expert testimony
(13:12):
from the opponent, and it alsoinvolves the development of jury
instructions.
That area is particularly ripefor appellate review, and every
trial counsel is a littledifferent how they like to use
someone like me.
Sometimes trial counsel likesto handle all of the arguments
in court and be fed what toargue and make sure that
(13:37):
someone's kind of looking overtheir shoulder and ensuring that
they're checking the rightboxes.
Sometimes trial counsel, on theother hand, want me to appear
in the case, sit at counsel,table at trial, argue objections
, argue jury instructions, arguemotions for directed verdict,
that sort of thing.
So there's some flexibilitythere in what the role
(13:58):
ultimately looks like, but I'malways there, at least in the
background, trying to supportand help my trial team.
Tom Hagy (14:08):
You've started talking about what you do.
Is there anything else youwould say about your role at the
counsel table.
You mentioned planting seeds.
Is there more to your role whenyou're at the trial?
Jeff Doss (14:21):
Yeah, and the way that I approach the position is
I like to work backwards.
I like to think about whatwould my best appellate brief
look like, assuming we get a badverdict?
What would my best appellatebrief look like?
What points would I want to bemaking to the appellate court?
And to that end, I try to makesure that if there's a little
(14:44):
piece of evidence we need toshore up a point, if there's an
argument we need to develop tomake sure it's preserved in the
record and build backwards.
So here's the appellate brief.
In my mind, best case scenariowe could argue what do we need
to do at trial to ensure that wecan make those sorts of
(15:07):
arguments eventually on appeal?
Can you ask this witness, thisor that to make sure that we
have those little points thatmay ultimately be very important
down the road?
And often trial counsel ishappy to humor me on those.
Tom Hagy (15:29):
Okay, and along the way, you're making notes of what
potential errors or things likethat.
You're just like you said.
You're kind of setting, settingthings up based on what you're
seeing at trial for what yourideal appellate brief would look
like that's right, andsometimes it's making sure that
we don't go too far.
Jeff Doss (15:50):
Occasionally you'll be in front of a judge who you
may be able to convince to takea position that you know is
probably a questionable one.
It may feel good in the momentright.
You may be able to convince totake a position that you know is
probably a questionable one.
It may feel good in the momentright.
You may be trying to introducea piece of evidence that you
think would be really helpfulbut ultimately you know is
probably going to be deemederror.
(16:12):
And it's also that piece of itmaking sure that we are not
inviting error into the case togive our opponent an opportunity
to set aside a verdict.
So it's both ensuring we havethat good appellate brief down
the road, but also making surethat the verdict, if we are
(16:32):
successful, would withstandappellate scrutiny.
Tom Hagy (16:36):
Okay, yeah, I hadn't thought about it going the other
way.
You want to look for errors onthe other side.
You want your side not tocommit anything or anything that
might give the other side somegrasp or some wedge or whatever
to help their appeal.
I got it, that's right.
So can you give any examples ofwhere your role as an embedded
(17:02):
appellate lawyer, where that hasbeen proven effective?
Jeff Doss (18:32):
As for an example, I'll tell you about the first
trial I was ever seriouslyinvolved with.
I was maybe a second yearassociate.
was a two week federalcriminal case.
The government was charging ourclient with a somewhat esoteric
statute, one that had not beenwidely charged at that point,
(18:54):
and so the case law wasn'tterribly developed.
That, though, gave us an angleto exploit.
We knew where we wanted to beeventually in terms of what we
wanted the court to say thestatute meant, and I was, as a
young member of the trial team,delegated this task of
(19:16):
developing the legal arguments,and so I was responsible for the
brief writing and the juryinstructions, the pretrial
motions, all of the things thatare now kind of what I focus on
for trial work, and we begandeveloping those arguments at
the motion to dismiss theindictment.
(19:37):
We focused again those argumentsat the pretrial motions
regarding the exclusion ofevidence, and, ultimately, we
made those arguments,reiterating them at the close of
the government's case, at amotion for judgment of acquittal
, which is the counterpart to acivil motion for directed
verdict.
Okay, the judge grants themotion for judgment of acquittal
(20:00):
and acquits our client of halfof the felony charges based on
that argument that we had begundeveloping way back when, when
we filed our first motion todismiss the indictment.
And again, that's just a matterof thinking backwards.
Where do you want to be at theend of the case?
Where do you want to be onappeal and thinking about how do
(20:23):
I plant those seeds, how do Idevelop those themes early on,
get the judge thinking aboutthese issues and ultimately, in
that case it proved to beeffective.
Tom Hagy (20:35):
Talk to me about this, about your role on the team and
the trial counsels, kind oflike who does what, where's the
division of labor and how do youcollaborate with them in that
area?
Jeff Doss (20:49):
Sure, so far in my career I've been very fortunate
to work with great attorneys whoappreciate support.
And at the trial court level Iview my role as one of support
and I try to stay in my lane.
I try to do that which makestrial counsel's job easier.
(21:11):
So the pitch I often make totrial counsel when I get
involved in cases in this roleis I'm here for you, I'm here to
make your job easier, I'm hereto make sure you're not having
to worry about all of theticky-tack things like
preservation of error,preparation of briefing in some
(21:32):
cases arguing legal issues tothe court, so that you can focus
on the presentation of theevidence and communicating with
the jury in that box.
And I found that trial counselultimately appreciates the
assistance because it does givethem the ability to focus on
what they do best.
And so that's at the trialcourt level.
(21:55):
Now, if we get an adverseverdict and then we really begin
focusing on what this lookslike in the appellate court, the
roles tend to shift a littlebit.
I mean, ordinarily appellatecounsel tends to begin taking
that lead, particularly once youget to the court of appeals and
(22:16):
maybe the case is set for oralargument.
Ordinarily I'll handle the oralargument on appeal, though not
always.
Sometimes trial counsel.
Sometimes it's reallyfact-intensive record or
something like that and trialcounsel may be better suited for
it.
But I view my role as beingcollaborative and an adjunct and
someone to help make trialcounsel's job easier.
(22:39):
So far it seemed to work.
Tom Hagy (22:40):
Well, Jeff Doss, thank you very much for talking with
me about this today.
Jeff Doss (22:43):
Well, thank you for having me.
I really appreciate it.
Tom Hagy (22:51):
I guess.
One additional question.
What is the role of the beardin a lawyer?
Does it make you a better?
Jeff Doss (22:59):
I absolutely think it does yes.
Tom Hagy (23:02):
You think everybody should have one.
Jeff Doss (23:03):
Yes, definitely, absolutely.
Tom Hagy (23:08):
They seem to be coming back.
That wraps up this episode ofthe Emerging Litigation Podcast,
a production of Critical LegalContent and HB Litigation.
If you'd like to comment onanything you hear here or if
you'd like to participate,please drop me a note and the
contact information in the shownotes you.
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