Shutterstock_162913184Trying cases

Trial lawyers believe they pay a trial judge a high compliment when they say "she'll let you try your case."

The praise implies a few things — that the judge doesn't make you do everything exactly the way she did when she practiced law, doesn't interrupt you on cross right as you go in for the kill, and doesn't rescue your opponent when he makes a fatal mistake.

The fact that trial lawyers see she'll-let-you-try-your-case as laudable in a member of the judicial priesthood tells you something — that not all members have the trait. Maybe less than half do. Possibly a lot less.

Still, the great mass of them won't actually hijack your case. What do you do if one does?

The question arose this week in a case about insurance — travel insurance.

The dispute

Trip Mate, which served as an agent for issuers of travel insurance policies, including Stonebridge Casualty, made an agreement with Stonebridge Casualty to collect premiums on policies that Trip Mate placed with travel organizers and pay the premiums to Stonebridge Casualty.

The agreement allowed Trip Mate to deduct "refund of premiums" from its collections but made Trip Mate responsible for "commissions".

Trip Mate and Stonebridge Casualty got into a fight over whether profit-sharing deals that Trip Mate had made with a pair of travel organizers had made Stonebridge Casualty directly responsible for sharing profits with them and whether the deals involved "refund of premiums", which Trip Mate could deduct, or "commissions", which Trip Mate had to eat.

An ensuing trial (to the bench instead of a jury) saw the lawyers for Trip Mate and Stonebridge Casualty slugging it out over Stonebridge Casualty's direct liability to the travel organizers and the refund-of-premiums v. commissions question.

The hijack

The judge had his own, different idea about the case. He saw the dispute as turning on whether the parties had tacitly amended their contract by behaving over a period of years as if it allowed Trip Mate to charge Stonebridge Casualty for the profit-sharing. After the first day of the two-day trial, he said:

Obviously, one of the issues here is, irrespective of what the [agreement] says, was there a course of dealing which effectively modified the terms of the [agreement]. I don't know whether you want to deal with that in your presentations tomorrow or whether you want to deal with it posttrial by way of additional briefing, but I'll tell you that that is an issue that I see, and I would like some help in trying to make my way through it. Okay. . . . Those are legal issues that I think need to be addressed at some stage.

Trip Mate, Inc. v. Stonebridge Casualty Ins. Co., No. 13-2032, slip op. at 6 (8th Cir. Oct. 6, 2014) (emphasis Blawgletter's).


How did the lawyers react? Basically by ignoring His Honor's remarks. Neither side briefed the modification-by-conduct issue or even mentioned it in post-trial submissions.

The result? The court rejected both sides' theories.

"The district court instead held in favor of Trip Mate based on a theory . . . that Stonebridge's 'knowing acquiescence' in Trip Mate's use of Premium Trust Account funds to pay profit sharing indicated that 'Stonebridge effectively agreed profit sharing was a debt it would pay out of its share of the premiums.'" Id. at 7. Stonebridge Casualty thus had to pay Trip Mate $424,827.30 to cover what Trip Mate owed to the profit-sharing travel organizers.


The Eighth Circuit held that the district court erred by effectively amending the pleadings without telling the parties. It noted that Rule 15(b)(2) allows a court to amend pleadings simply "by entering findings regarding the implied amendment" but that it doesn't permit secret amendments. The panel required "actual notice of the implied amendment . . . and an adequate opportunity to cure any surprise." Id. at 9.

The panel concluded:

Through the lens of hindsight we can see that the district court probably attempted to amend the pleadings during the first day of trial. The parties, however, reasonably and quite clearly misunderstood the district court's vague comments about their course of dealings, and the court took no steps to clarify this obvious misunderstanding during the trial or in its instructions to the parties regarding their post-trial briefs. The parties thus did not have actual notice of the implied amendment issue or an adequate opportunity to cure the surprise of this issue being added to the case. . . . The parties therefore did not consent to trying the implied amendment issue, and the district court abused its discretion by adding it to the pleadings.

Id. at 11.


Most of the time, you will know when the judge has hijacked your case. You will get more clues than the judge in Trip Mate v. Stonebridge Casualty gave. But then you must raise heck about it. If you don't, you will have consented to the judge's effective amendment of the pleadings.

But you may not have to alert the trial judge to your complaint if he rules before you know that he's made a sub silentio amendment. The Eighth Circuit reversed despite the fact that Stonebridge Casualty apparently did not fuss about what the district judge did until it filed its opening brief on appeal.

Why did it wait? Likely because it thought the trial judge would have given it a chance to cure any prejudice from the late development. And it still would have lost.

That scenario seems likely to Blawgletter. We wonder why the Eighth Circuit didn't think the same thing.

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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.