Does asking jurors to "imagine" a story that blends evidence and fantasy cross the line into impermissible jury argument?  What if you add "abusive references" to opposing counsel?  Will the combination exceed the outer boundaries of what a lawyer may properly argue to a jury?

The Tenth Circuit held in Whittenberg v. Werner Enterprises Inc., No. 07-6063 (10th Cir. Apr. 3, 2009), that plaintiffs' counsel went too far and that therefore the ensuing $3.2 million verdict could not stand.  The case involved the Whittenbergs' claim that a trucking company, Werner Enterprises, and a trainer-trainee team of drivers negligently caused Mack Whittenberg to drive into a Werner semi-trailer truck as it straddled a dark highway after an abortive attempt to make a u-turn. 

The lawyer for Mack and his five children said this in his closing, during which defense counsel twice objected:

And so I want to take you back to November 30th, and I want you to do just an imagining thing with me.

You recall Ann Whittenburg sitting there on the stand and saying, “Sunday afternoon we saw Mack off that day that he went to the ranch.”

Now, just bear with me; think with me.

Imagine that there’s Brit, and there’s Ann, and they sent Mack off, he’s on his way out there Sunday afternoon, maybe six o’clock. Mack turns around the corner as he leaves Palacio back to I-40 and he’s going to take 35 north on his way to 287 out of the Amarillo.

Brit turns around and gets ready to walk back in the house, and there’s an envelope sitting there on the floor, and he reaches down and he picks it up, and he gives it to Ann, and Ann opens it, and she looks at it, and it’s a letter.

It’s a letter to Brit and to Sarah and to Cecily and to Justin and to Amanda.

I’m just imagining, but listen to these facts.

This letter’s dated November 30th, 2003, and it’s from Werner Enterprises.


“That was the last time you will ever see your dad as you now know him. You should let your siblings know this.  “In just a little while, our company drivers, Jon Morlan and Marisela Neff, are going to get in one of our big semi-trucks in Limon, Colorado, and we’re going to head south toward Amarillo pulling a loaded trailer.

Ms. Neff will be driving. She’s too inexperienced to make this trip safely, and Mr. Morlan will be too tired to properly supervise her, and, while Mr. Morlan crawls in the truck sleeper and goes to sleep –

. . .

“Ms. Neff will be unable to properly follow the route that she and Mr. Morlan laid out, and she will be too confused to read the upcoming road signs.

“Our drivers will arrive in Boise City, Oklahoma, just ahead of your dad, sometime around midnight or thereafter. Ms. Neff will take a wrong turn west of Boise City, and Mr. Morlan – Mr. Morlan will be too in much of a – he’ll be in too much of a blue funk to be of any help to her after she does call on him for help.

“He will refuse to take the steering wheel when she calls for his help, and she will high-center the truck on the highway when she attempts a Uturn, rather than taking a little extra time to find a place that – safe place to turn around or to call for help. And Ms. Neff will center – will high-center this semi-truck out on the same highway that your dad will be traveling on his

make excuses, and our lawyers will try to blame the collision on your dad, saying it was just an accident and that he had the last clear chance to avoid it. We will never take responsibility for our driver’s actions.

“We will hire own – our own lawyers who will take your dad’s life apart. Our lawyers will focus on the fact that your dad comes from a prominent Texas Panhandle family, and our lawyers will expose every part of your dad’s professional and personal life in an attempt to make the jurors think poorly of him.

“Our lawyers will accuse him of being a trust-fund baby who intentionally remained under-employed just so he could bring this lawsuit and prove damages.

“Our lawyers will hire experts and will force your dad’s lawyers to hire experts in order to prove that he wasn’t at fault.

“We will fight to keep out of evidence that our driver-trainee pleaded guilty to unlawfully stop – unlawfully parking a stopped vehicle that night, and we will spend thousands of dollars to have –

. . .

“We will have our experts spend – we will spend thousands of dollars to have our expert perform a nighttime photo shoot in an effort to persuade your dad and possibly jurors that he was just not paying attention on that fateful morning.

“Our lawyers will spend whatever it takes to try to talk our way out of having to be accountable for what our inept trainer and our inexperienced driver did.

“We will subject your dad to a trial if we have to. We will do everything in []our power to convince the jury that your dad was really not all that injured in the first place, and that your dad is overreaching in trying to prove his damages.

“Of course, if none of that works, our lawyers will accuse your dad of being a failure because his law firm used to have 20 members and now it only has five.

“We will point out that he apparently lived off your Uncle George and your Aunt Ann Whittenburg simply because he couldn’t make it on his own.

“We w[i]ll not mention the fact that your dad sacrificed greatly as a single father to take care of the five of you while you were growing up and then devoted years as a nighttime caregiver for your Granny Grace so she could live with honor and dignity prior to her death.

“We will ignore the fact that your dad has a sense of pride in what your Grandfather Roy accomplished before him, and we will ridicule his 

love and respect for his family’s heritage, and then demean him by calling his love of the Spool Ranch a mere hobby.

“Oh, and while we’re at it, our lawyers will also try and discredit your dad’s lawyers by hinting throughout the trial that they have attempted to influence witness testimony against us.

“Of course, none of this is true, but we’ll keep using smoke and mirrors and half truths the best we can to try and shift the jury’s focus away from the real issue in this case, and that is our inexperienced driver trainee and our inept driver trainer attempted an improper U-turn and got highcentered and then failed to warn oncoming traffic – traffic of the danger it created, and that is what really caused, directly caused the collision in this case.

“Sincerely, Werner Enterprises.”

Id. slip op. at 4-7.  The vice in the argument, according to the court, consisted in its use of "invented facts" that aimed to arouse the jurors' sympathy and its heaping of "vituperative attacks on defendants and their counsel."  Id. at 11 & 12-13.

Blawgletter agrees that the argument would tend to evoke strong emotion.  What kind of company would deliver to a man's children a letter that foretells their father's impending accident and serious injuries, admits the company's fault, and confesses sharp tactics to deny them and their father a semblance of justice?  An evil one.

We feel less certain than the court that the argument must have so swept up the jurors that their verdict had to have resulted from unreasoning passion.  And surely a lawyer may argue that defendants knowingly took risks and didn't care about the consequences.  

May the lawyer also say the defendants made litigating and trying the case into an ordeal?  That they intended to do so even before the accident?   In the form of an imaginary letter to the victim's kids?

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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.