Blawgletter has worked at one place, a law firm, since getting a bar card in 1985.  At some point, the firm tried to distill its approach to trial work into one document.  The current version appears below:

How We Handle Cases

In handling complex litigation, our firm is guided by two principles, both of which reduce expense without sacrificing chances for success. First, less is best. Excess discovery is not just nonproductive, it often is counterproductive. Excess discovery removes the element of surprise at trial, forces the opposition lawyers and witnesses to get prepared earlier than they otherwise would, and often takes the eyes of the lawyers who engage in it off the ball. The best lawyers are best able to handle (and create) surprise at trial. We believe in retaining our natural advantage.

Minimal discovery, however, doesn't mean being ill-prepared. It means we prepare by means other than formal discovery, such as thoroughly interviewing our client's employees and the other side's ex-employees, organizing all documents and information chronologically to understand the complete picture, and conducting jury simulations.

Second, we take whatever discovery we need before the other side does. We like to take the first depositions and we like to depose the top executives first – before they can get their stories straight. We don't believe extensive document discovery is necessary to do this.


  • We are stand-up jury trial lawyers, not discovery litigators. Everything we do is designed to prepare us to persuade a jury.

  • Fifty percent of our time as a firm is spent in handling contingent fee matters for plaintiffs. Since preparation in these cases is on our own nickel, we know how to economize and insist that everything we do potentially be outcome-determinative. We acquire good habits from this contingent fee work.

  • We encourage clients to compensate us on a result-achieved basis. We want the same incentive to win our clients have. But even when we are paid by the hour, we pride ourselves in a "mean and lean" approach to litigation.

  • In our experience, the bottom line amount of our monthly statements will be lower than those of large firms that compensate partners on a pyramid basis and that leverage off the billings of large numbers of associates. We do not have enough lawyers or enough excess capacity to over-work a case, and even if we did and a client was willing to pay us to do so, it would go against our grain. We often staff cases with just a fraction of the number of lawyers our adversaries use to overwork the case.

  • Because we only do litigation, we have few regular clients. The only way we get business is by the result we achieved in the last case. Our most prized asset is our list of clients who have seen us in court. We cannot afford to lose. And we cannot afford to win inefficiently.


At the beginning of a complex case, we assemble our trial team, rarely consisting of more than one or two partners, an associate and a legal assistant.

  • We candidly discuss staffing with the client up front and try to assign to the case lawyers with whom the client feels comfortable.

  • We believe in one-lawyer-one-task. We rarely assign two lawyers to cover a litigation event.

The partner in charge manages case preparation by using a Task Assignment memo, revised weekly, and a regular weekly team meeting or conference call.

  • Task Assignment Memo. Each task is assigned to a named team member with the due date. These memos are numbered sequentially and revised after each weekly meeting.

  • The Weekly Meeting. Interoffice conferences among trial team members are necessary for effective communication and to avoid duplication of effort. But they are wasteful if the same message must be repeated. By focusing our interoffice communications into a regularly scheduled meeting or conference call, we avoid unnecessary jawboning among team members at other times. This also allows the client's in-house counsel, co-counsel, etc., to attend and keep up to date.

  • Call Reports. If a member of the team has a substantive discussion with the client, co-counsel or opposing counsel, he routes a call report by e-mail to other team members.


Dealing with Opposing Counsel

  • We try to conduct all discovery by agreement. It is expensive to do otherwise.

  • We rarely take discovery disputes to court. Judges hate them and usually give both sides less than they could get by agreement. Our rule is to take a discovery dispute to court only when the issue is outcome-determinative (few are), and only when we have confidence that we can win.

  • At the start of a case, we send a memo to opposing counsel seeking agreement to a number of protocols that we have found to facilitate cooperation and reduce costs.

Document Production

  • Upon receipt of the other side's document request, an experienced attorney, in consultation with the client, determines what should be objected to. We have found that it is better to produce too much than too little. It is very expensive to review masses of documents to remove what is nonresponsive or irrelevant. Sooner or later, we'll probably have to produce them anyway. We even encourage our clients to allow open files searches if we can get a stipulation preserving privileges or find a way to identify files that are likely to contain privileged documents.

  • We do not simply like to rely on our client to locate and furnish to us responsive documents. Our legal assistants are experts at this, and there is too much danger of an inadvertent omission unless we are involved from the beginning. For example, we believe in numbering the originals of all documents produced for inspection before they are inspected, in logging all files searched, and in interviewing file custodians while the searches are being made.

  • Before numbered originals are produced for inspection, a lawyer reviews them to remove those that are privileged. All documents withheld on the ground of privilege are logged at the time they are withheld.

Document Organization

  • We are not great believers in computerizing all documents. This is expensive and, in most cases, unnecessary. Even the most complex case boils down to less than several hundred hot documents. As we initially review documents – ours and theirs -lawyers select those that are to be included in our hot document chronology. These are the documents that tell the story, which we use to prepare witnesses, and to depose witnesses. They are the ones that likely will become trial exhibits.

  • From the document chronology, we prepare a written chronology of events. It is not a document digest, but rather an annotated narrative of what happened.


  • We don't take many, and those that we take are short. We don't need to look under every stone. We just need to know where the boulders are. Excessive questioning of witnesses, particularly experts, serves only to educate them.

  • We normally videotape depositions of fact witnesses. This minimizes excessive talking by opposing counsel and allows us to show the other side's key witnesses during jury simulations.

  • We believe there is no such thing as a bad witness -only one who has been ill-prepared. We give witnesses who are our clients "Your Deposition," a memo that incorporates our cumulative experience in trying lawsuits. Then we prepare our witnesses for the twenty tough questions – we don't sit them in a room alone with the thousands of documents they may have been copied over the years and ask them to review them. The documents they may have problems with are usually those they have authored.

Witness Preparation

  • Witnesses learn through doing. Therefore, we cross-examine our own witnesses on video as part of their preparation. We play back and critique their performance.

  • Defending lawyers are not supposed to talk during depositions. Courts are sanctioning those that do. If the witness is well prepared, there is nothing for the defending lawyers to do but listen proudly. By involving the most experienced lawyers in witness preparation, we often are able to trust deposition defense to lawyers with lower billing rates.

  • Some lawyers believe that what a witness doesn't know can't hurt him. They encourage their witnesses not to remember, not to know. This is dangerous. A witness who doesn't know or recall at his deposition is often useless at trial. We encourage our fact witnesses to learn, remember, and be responsive, even at their depositions -to be able to handle even the most off-the-wall hypothetical questions. We encourage our experts to type out their opinions to hand to the other side.

  • Most lawyers do not question their own witnesses at their depositions. They are afraid to commit to what they want to prove at trial, often because they themselves haven't taken the time to think their case through. We believe in asking many of our own witnesses questions at their depositions. This gives us some favorable testimony to show or play to the jury during the other side's case. It also removes the need to bring all of our witnesses to trial. Usually opposing counsel is ill-prepared to engage in a trial-type cross examination after we question our own witnesses on direct at the end of the deposition – frequently, they are in a hurry to catch planes home.


  • Upon request, we will prepare litigation budgets for our clients, but we prefer to work on a fixed-fee basis that places the risk of inefficiency on us and allows our clients to accurately budget for a case.

  • Clients are entitled to know what we see as the issues and how we call the odds on each. Though we are unable to opine much for auditors, we are not reluctant to share our thoughts in writing with our clients


  • We are great believers in jury simulations or mock trials, and we conduct them early and frequently in most cases. They help us predict the outcome, hone our arguments, and conduct discovery with an eye to telling a simple story to a jury. They let our clients see how their lawyers will look and sound during the real thing. When the result is favorable, we frequently disclose it to the other side to encourage settlement.

  • A mock trial with 36 jurors costs around $35,000 and can be much more expensive depending on the circumstances. The cost is well worth the information and strategic guidance we gain.

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.