How many trial lawyers sit on the U.S. Supreme Court?
How many trial lawyers sit on the U.S. Supreme Court?

In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge.

Does the justices’ nearly total lack of trial-lawyer chops matter? Has the almost utter absence of actual trial experience in fact degraded the quality of civil justice? And will confirming the nomination of a former trial lawyer like Neil Gorsuch make a difference?

More procedure, fewer trials

In the three decades since I started a commercial trial practice at Susman Godfrey, one trend has dominated: ever-greater procedural complexity.

From Celotex in 1986 (summary judgment before trial), Daubert in 1993 (admissibility of opinion evidence), Twombly in 2007 (early dismissal), and Wal-Mart in 2011 (class certification), the Court has time and again raised hurdles that collectively make getting to trial (much) more costly and (far) less likely.

John Marshall’s maxim, that the power to tax includes the power to destroy, holds true here.  The share of civil cases that become one with the infinite before trial has soared in the last few decades.

Even that stunning statistic understates the trend. Some meritorious cases that once would have produced a trial never even got to the filing stage. The risks and costs have risen so much that the cases don’t involve enough money to yield the plaintiff (and her lawyer) a net benefit. Thanks in part to the Court’s own apparent anxiety about resolving civil disputes with trials on the merits, civil justice has become ever more a contest between wealthy adversaries who can shoulder the costs.

What I saw

My own experience before the Court left me thinking how imperfectly the justices understood the civil trial process.

A few months before I argued the case, the Court had granted cert on a Daubert issue. The Court changed the petitioner’s Question Presented so that it asked whether at the class certification stage of a case, expert evidence must meet the Daubert test.

But in formulating a new Question Presented, the Court missed a basic fact about the proceedings in the trial court: the other side never raised a Daubert issue and had thus forfeited it.

Would a trial lawyer have overlooked that fundamental problem?

At the argument itself, only one of the nine justices, the former trial judge, seemed aware of the gritty reality of the four days of testimony that resulted in extensive fact-finding by a trial court. Nor did they focus on the basics — like How much evidence do you need (a preponderance) and What must you show (that at trial admissible opinion evidence will support a verdict on class-wide issues)? When I gave the answer (that you must show by a preponderance of the evidence that your expert’s opinions on class-wide questions will pass muster at trial), a justice said the justice didn’t understand it that way but would give it some thought.


Nobel prize-winner Daniel Kahneman wrote in Thinking, Fast and Slow (2011) about the “availability heuristic.” As Wikipedia explains, it “is a mental shortcut that relies on immediate examples that come to a given person’s mind when evaluating a specific topic, concept, method or decision.” It “operates on the notion that if something can be recalled, it must be important, or at least more important than alternative solutions which are not as readily recalled.” As a result, “people tend to heavily weigh their judgments toward more recent information, making new opinions biased toward that latest news.”

Does the availability heuristic apply to judges? It must. And because it must, it implies that a judge who has actually tried cases will recall examples from those experiences. The judge will think of more examples, and will remember them more vividly, if he lived through them In the not-too-distant past. They will thus affect his thinking about a case. But the stories that he can tell from personal experience may also convince fellow judges who lack the same grounding in in trial work.


Which brings us to the pending nominee for Justice Antonin Scalia’s seat on the Court.

Neil Gorsuch did 10 years of trial work at Kellogg Huber before becoming a Tenth Circuit judge in 2005. The cases he helped try included an antitrust lawsuit that yielded a verdict and judgment for $1.05 billion. Conwood v. United States Tobacco Co., 290 F.3d 768 (6th Cir. 2002).

In 2015, Judge Gorsuch joined with a colleague to breathe new life into another verdict. That verdict also produced a judgment in excess of $1 billion. He praised the “diligent and properly instructed jury” and condemned “the needless financial expense” and “the emotional ordeal parties and witnesses must endure in any retrial”. Scott v. Rockwell Int’l Co., 790 F3.d 1088, 1105 (10th Cir. 2015), cert. denied, 136 S. Ct. 2055 (2016).

Judge Gorsuch has a solid background in trial lawyering. And if he becomes Associate Justice Gorsuch, he will fill a gap that has existed for decades on the Court.

No endorsement

That does not mean that I endorse Judge Gorsuch. I will watch with great interest to see and hear him and others testify in the Senate Judiciary Committee hearing that begins tomorrow on his nomination. But the civil justice system sorely needs a trial lawyer on the Court. I hope we get one soon.

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You can follow SCOTUSblog‘s liveblogging of the confirmation hearing here.

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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.