This coming Thursday, I’ll give a talk about Preparing Difficult Witnesses for Trial at the University of Texas law school Civil Litigation Conference in Austin. My series of posts on the subject ends with this one — and it’s the best one of them all, in my view.

Draft the hardest questions (HQs) memo.

Every case turns on a discrete number of tough-to-answer questions. If you thought your business partner cheated you in the Permian Basin deal, why did you turn around and do a Bakken shale deal with him? You knew about an article in Widgets Today! on a new widget design when you applied for a patent on a similar widget improvement, but didn’t disclose it. Why not? Do you really expect us to believe that you met in a back room for three hours with your competitors but didn’t talk about the price increases you all announced the next week?

Your DW will have answers to the HQs, whatever they are, but do you want to first learn them when he takes the stand, perhaps under your opposing-counsel friend’s cross-examination?

No. Your most important and challenging jobs in preparing the DW are to identify these HQs and with his help to figure out the truthful answers that most effectively present your client’s side of the case.

A trial lawyer’s ability to perform this crucial function separates the stars from the also-rans. You will not waste time working on getting it right.

It’s essential that HQs memo reflect the DW’s best, most accurate, and honest recollection of the facts. That is why you must do a thorough interview of the DW and use your faithful recording of her answers in your notes to make a first draft of the memo. To make the point obvious, the memo itself should expressly state, at the outset, that it is simply a draft and is subject to revision as necessary to make it fully accurate.

You can show the HQs memo to the DW if you represent him. The lawyer-client privilege will generally protect it from discovery. The exception for documents that refresh a witness’s recollection shouldn’t apply, not least because it reflects the DW’s recollection.

For any DWs that you don’t have a lawyer-client relationship with, sharing a copy of an HQs memo may risk having it fall into the hands of your friend on the other side. The DW herself may turn over a copy, or you may have to produce it as a relevant but non-privileged document. Although you still should review its contents with the non-client DW to assure its accuracy, the better practice is to do it orally.

Do dry runs.

One article sums up the “practical literature” on witness prep as deeming “the failure to interview witnesses prior to testimony” to constitute “a combination of strategic lunacy and gross negligence.” Witness Preparation, 68 Tex. L. Rev. at 287 (footnote omitted). Almost two decades later, you can say almost the same thing about failing to walk a DW through his trial testimony at least once.

Indeed, the DW needs a good preview of his turn in the witness box more than other witnesses do. Only in that way can you spot issues that could upend the DW’s ability to communicate with the jury truthfully and effectively.

The concerns that make dry runs highly advisable for DWs fall generally into two categories. Let’s call them style and substance.

Style encompasses all the traits that enable a witness to provide testimony that the jury finds persuasive. These include confidence, firmness, tone and volume, consistency, courtesy, engagement with the jury, and candor.

Some people exhibit these virtues effortlessly. DWs generally don’t. Yet many are blissfully unaware of their shortcomings. By doing dry runs with them, you will allow them to observe behavior that can detract from effective communication for themselves.

Take the DW who doesn’t respond to the question. You ask him if he has a watch, and he looks at the timepiece on his wrist and, instead of saying Yes tells you It’s half past two and goes on to describe why he likes Rolexes better than Breitlings and how he thinks the Apple Watch costs more than it should. A couple of instances of asking him Do you remember the question? can go a long way towards curing him of not carefully listening to the question and answering it.

What about the shy DW with the quiet voice? Get her to speak up. Assure her that the jury wants to hear what she has to say. Let her practice using more volume in her answers to your questions.

The know-it-all DW also benefits from feedback on what comes across to others at best as arrogance and at worst as pompous ignorance.

Nor should you neglect cross-examination. The most believable witnesses don’t change their demeanor between direct and cross, but that sort of consistency may not come naturally for your DW. The DW also may lose focus, get angry, or fall into traps unless he has gone through it with you and seen how he can avoid making the same mistakes at trial.

Videotaping questions and answers and then critiquing the DW’s performance can work wonders and is the single most effective way to prepare the DW to testify at trial.[1] People generally – a group that includes DWs – get a bit of a shock when they see themselves on the screen. Being so accustomed to observing themselves only from inside their heads, they may have a highly distorted sense of the impression they make visually and, to a lesser extent, aurally.

Most DWs get a little better after one video review, but they really shine in the third iteration. The first one allows them to make some adjustments, and the second reveals how they over-adjusted or misadjusted. Diminishing returns begin to set in after number three.

Note that, because this aspect of prep concerns technique rather than substance, the questions you ask don’t matter all that much. You may in fact want to ask about things that have nothing to do with the case.

It’s often useful to expose the DW to a variety of cross-examination styles. You may not know who’ll do the actual cross at trial, and the different approaches, manner, and pacing of your colleagues will help assure that, whatever the cross style, the DW will be better able to adjust without discombobulation.

The second category – substance – requires you to bear in mind the ethical constraints on evidence lawyers may sponsor. See Tex. Disc. R. Prof. Conduct 3.3.[2] The goal of review with the DW here relates to getting factual details right. Videotaping has less utility here, but still it’s usually helpful to the DW to see herself grappling with matters of substance and gaining confidence in her ability to get the thrust of her testimony across effectively.

 Maintain a safe distance.

Before ending, let me remind you of a few notes of caution.

The overriding goal of preparing DWs to testify at trial is to effectively present a truthful story that will motivate jurors to find in your client’s favor. Make clear that you and your client want only honest and accurate testimony.

Be aware of the scope and limits of the lawyer-client privilege and the lawyer work-product doctrine. The former will protect essentially all of your communications with your DW client, notably including meetings, conversations, emails, memos, and videos concerning the DW client’s preparation to testify at trial.

The work-product doctrine confers less sweeping protection. Although it may extend to communications about trial preparation with non-client DWs, who may include former employees of your client or its adversary as well as expert witnesses, its efficacy is less certain. That is in part because the doctrine has formal exceptions, in part because it hardly operates at all in the context of testifying experts, and in part because it to some extent depends on the willingness of non-client DWs to maintain confidentiality.


You and I are lucky to be trial lawyers. Our niche in the legal profession calls on us to use all our skills, smarts, and resourcefulness to tell a true story that persuades jurors to find in our clients’ favor. The suggestions I’ve made here for preparing DWs to tell their parts of the story provide tools for you to help them become effective witnesses. Happy trials!


[1] It is common practice to promptly reuse media after each video session.

[2] (a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraph (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Tex. Disc. R. Prof. Con. 3.3.

Email this postShare this post on LinkedIn
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.