Blind JusticeSurvey says

Since January 1, 2007, I’ve surveyed decisions by the 13 U.S. courts of appeals almost every working day.

The experience has highlighted for me a range of quirks — from their highly variable websites to their peculiar schedules for releasing opinions to the small-bore or high-caliber of the disputes they decide to the great range of writing talent.

I’ve also learned that they vary a lot in their openness. That trait manifests itself most obviously in the seemingly mundane information they provide (or withhold) in the captions of their opinions about the cases they decide.

Today I finally took a look at how transparently these geographically, culturally, and philosophically diverse courts deal with facts that can aid people like you and me in assessing how well they do their jobs.

[See examples from all 13 of the courts at the end of this post.]

The basics

Some things appear in all the courts’ opinions:

  • The names of the judges on the panel.
  • The number of the case in the court of appeals.
  • The date of the court’s decision.
  • The name of the district court in which the case originated.

The identities of the judges — and particularly of the judge who authors the unanimous or majority opinion — of course does provide important information, but even there the judges may decide to obscure authorship by using the “per curiam” (by the court) device. The other bits of data tell you almost nothing that could help you evaluate the quality of the panel’s work.

Lack of transparency

Most of the courts of appeals do a good job of providing additional indicia regarding the judging process. But a minority of the courts stand out for their opaqueness:

  • Four (the Fifth, Eighth, Tenth, and Eleventh) do not name the district judge whose rulings they review.
  • Three (the First, Fifth, and Eighth) leave out the district court case number.
  • Five (the First, Fifth, Tenth, Eleventh, and Federal Circuits) omit the date of oral argument or submission.
  • In yet another quad (the Fifth, Seventh, Eighth, and Eleventh Circuits), opinions make no mention of counsel.

You may not think that these information deficits matter, but if you do I beg to differ. Leaving out details like these deprives the most knowledgeable observers — other judges, lawyers, legal reporters, and bloggers — of tools that can help them evaluate the quality and persuasiveness of the appellate judges’ work.

Your confidence in a Second Circuit ruling, for instance, might turn in part on whether the modern equivalent of Learned Hand presided over the case in the district court or whether, instead, a notoriously incurious, low-wattage, and seldom right but never-in-doubt jurist handled the case. You would also like to know the identity of a trial judge who did something outlandish so you could either avoid his court next time or at least take his failings into account if you wind up before him anyway.

As for the case number in the district court, if you don’t know it, you’ll have trouble finding the relevant decision online through PACER. You may not (probably won’t) bother looking for it (who has the time?).

A big lag between argument of an appeal and the court of appeals action on it also undercuts the credibility of the decision. What took so long? What effect will the delay have on the lawyers’ ability to present the merits of the case? Can you remember the facts?

Finally, the failure to identify the lawyers who briefed and argued the appeals may seem innocuous, but again the knowledgeable observer will form a judgment about the court’s decision partly from the reputation of the parties’ counsel. You can also call them if you have their names handy.

Not all bad

The Second and Ninth Circuits stand out for offering a summary of each decision. The former far outperforms in the elegance of its precis, but both get big points for making the extra effort to enhance the understanding of their audience.

All in all, the courts of appeals do a splendid job with the work they have before them. A bit more transparency can make their product even better.6a00d8341c4f7053ef01b7c76cef84970b-120wi.jpeg

First Circuit
First Circuit

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Second Circuit
Second Circuit

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Third Circuit
Third Circuit

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Fourth Circuit
Fourth Circuit
Fifth Circuit
Fifth Circuit
Sixth Circuit
Sixth Circuit
Seventh Circuit
Seventh Circuit
Eighth Circuit
Eighth Circuit

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Ninth Circuit
Ninth Circuit
Tenth Circuit
Tenth Circuit
Eleventh Circuit
Eleventh Circuit
D.C. Circuit
D.C. Circuit

Federal Circuit

Federal Circuit
Federal Circuit
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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.

TRIAL COUNSEL
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.

COMPLETE PACKAGE
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.

HARD GRADERS
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.”

CIVIC ENGAGEMENT
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.

KEEPING PERSPECTIVE
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.”

PERSONAL
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.