For your client to win at trial, the trial lawyer in you must tell a human story, one that moves jurors to decide in your client’s favor. Flesh-and-blood witnesses fill essential roles in the drama. So-so ones will turn the story to mush, and bad ones will allow your friend on the other side to beat you and your client about the head and neck with it. Difficult witnesses – DWs – therefore pose a risk you must use all your talents and powers to manage.

How can you prepare DWs for their potentially pivotal turn on the courtroom stage? In this series of posts, I offer thoughts from 33 years of trying cases.


Let’s start with some basics. I’ll begin by briefly sketching the identifying traits of the groups that essentially all witnesses – including DWs – fall into and some of the more significant ethical considerations that govern your dealings with each category. Then we’ll take a short and non-exhaustive look at the protective scope of the two major privileges that trial lawyers deal with: the lawyer-client privilege and the lawyer work-product doctrine.

Witness types and some ethical rules.

A civil case generally involves four categories of witnesses:

  • your client,
  • the clients of other lawyers,
  • non-parties who don’t have legal counsel, and
  • experts

Note the emphasis on who has a lawyer and who doesn’t. It matters for several reasons

First, the lawyer-client privilege normally protects your interactions with witnesses who are clients – whether individual clients or the representatives of an organizational client such as a corporation.[1]

Second, your dealings with non-client witnesses, including experts, generally do not fall within the protection of the lawyer-client privilege, although the work-product doctrine may still apply.

Third, although communications with your client’s employees may fall within the protection of a privilege, you don’t necessarily represent them as individuals and need to make clear to them any limitations on your role. Many times, that will mean advising them that your client is their employer, not them; that your first loyalty runs to their employer, not them; and that in the event of a conflict between them (assuming they have become individual clients) and the organizational client, you and your firm will withdraw from representing them, the employee, but will continue representing the employer to the extent the ethical rules allow.

Fourth, you generally can’t communicate with people who you don’t represent but who have counsel. You must normally ask for the other lawyer’s consent first. Most times you won’t get it.

Finally, witnesses who don’t have any counsel at all have some important protections. You generally mustn’t imply to them that you are disinterested, should accurately describe your role in the matter, and should avoid offering legal advice (other than the advice to secure counsel) if the witness’s interests may conflict with your client’s. See, e.g., Tex. Disc. R. Prof. Conduct 4.3; ABA Mod. R. Prof. Conduct 4.3.


“An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.” Ibarra v. Baker, 338 Fed. Appx. 457, 465 (5th Cir. 2009). “Experienced trial counsel are expected to do no less than to provide support, direction and assistance to witnesses, provided only that a direction of what may be said is not suggested or required.” Haworth v. State, 840 P.2d 912, 914 n.3 (Wyo. 1992). Stating the point even more obviously, lawyers may not coach a witness “to modify or completely change his testimony in material ways.” Anderson v. Nat’l Union Fire Ins. Co., 88 Mass. App. Ct. 1117 (2015), vacated on other grounds, 67 N.E.3d 1232 (Mass. 2017).

“The attorney-client privilege protects most of the preparation activities directly involving the client; the work-product privilege protects the lawyer’s own efforts, including research, investigation, and contacts with other witnesses.” John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 292 (1989). But the “protection afforded opinion or core work product may be breached when there is a charge of falsified testimony.” In re Cendant Corp. Securities Litig., 343 F.3d 658, 666 n.8 (3d Cir. 2003).

In general, work product “protection also extends to non-attorneys who assist in preparation of litigation”, and “the litigation consultant’s advice to a witness is an ‘opinion’ that is protected under the work-product doctrine.” Hynix Semiconductor Inc. v. Rambus Inc., No. CV-00-20905, 2008 WL 397350, at *2 (N.D. Cal. Feb. 10, 2008) (citing Cendant, 343 F.3d at 665-66).

“Litigation consultants retained to aid in witness preparation may qualify as non-attorneys who are protected by the work product doctrine.” Cendant, 343 F.3d at 665 (holding that work product doctrine protected communications among trial consultant Dr. Phil McGraw, a witness, and the witness’s counsel).

“The work-product protection continues to adhere where the non-client shares a financial or legal interest, for example, as parties to a joint defense agreement.” Hynix, 2008 WL 397350, at *2.

Questions that a court might allow include “whether [the witness] met with a jury consultant, the purpose of any such meeting, who was present, the duration of the meeting and whether the witness practiced or rehearsed his or her testimony.” Hynix, 2008 WL 397350, at *4.

*  *  *  *

In the next post, we’ll start getting into particulars of preparing the DW to testify at trial.

[1] In New York and Texas, an organizational client typically includes not only higher-ups but also employees whose communications with you take place within the scope of their employment. See N.Y. CPLR 4503(a); Tex. R. Evid. 503(a); Stock v. Schnader Harrison Segal & Lewis LLP, 142 A.D.3d 210, 216 35 N.Y.S.3d 31, 35 (1st Dept. 2017); In re Texas Health Resources, 472 S.W.3d 895, 901-02 (Tex. App. – Dallas 2015, orig. proceeding) (discussing definition of “client’s representative” in Tex. R. Evid. 503(a)(2)).

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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.