In Preparing Difficult Witnesses for Trial — Part 1, we looked at the four major types of trial witnesses. We also sketched “some of the more significant ethical considerations that govern your dealings with each category”. We then took “a short and non-exhaustive look at the two major privileges that trial lawyers deal with: the lawyer-client privilege and the lawyer work-product doctrine.”

In this post, we’ll cover the necessity for getting really ready and something you may find surprising — the importance of caring.

Get ready. Really ready.

One of my law partners liked to say that he’s never seen a bad witness, but he has observed a lot of lazy lawyers.

He had a point.

To start with the obvious, you can’t get a difficult witness — a DW — ready to face a jury (and your friend on the other side) unless you know the case inside and out. That begins with absorbing the pleadings, mastering the law governing the claims and defenses, and (last but not least) writing out the fact questions the jury will answer. Only then will you have the bones on which you will flesh out the story of the case.

Don’t even think about stopping there. You must also absorb the chronology, learn the cast of characters, and become as one with the most important documents (which in even the most complex case seldom number more than 20).

And you need to gather from your case file and study each email, letter, journal entry, hearing and deposition transcript, and interrogatory answer that mentions the witness. And yes, you must survey the witness’s social media presence and litigation history. Others can look for the tweets, Facebook posts, Yelp reviews, YouTube videos, and LinkedIn profiles and research PACER, Westlaw, Lexis, and Google. But you need to examine the results.

At this point, you may wonder why I’ve started by telling you things you think you already know. I have two answers.

First, the fact that you know you should do something doesn’t mean you will really do it when the time comes. Recall that we have before us the task of preparing DWs for trial. By definition, you face a challenge, and that puts a premium on actually doing what you know you should do but sometimes dispense with doing because (you think) it won’t matter. You need me to remind you of the high stakes and the small margin for error.

Second, thorough preparation gives you something few people have but you will need if you hope to tame a DW – gravitas. It does that because doing the work shows unmistakable respect for the process and establishes you as a serious person. It thus grants you authority on matters of fact and opinion. You will need that and more with a DW, so don’t scrimp on preparation.

Care.

Do you see yourself as an advocate who presses your clients’ interests for money? Do you think you have to put your values and beliefs on hold to put your client first?

I sure hope not. Your job as trial lawyer gives you a tremendous opportunity to embody the high ethical standards of the legal profession. That visible integrity makes you worthy of belief and therefore believable. Credibility matters more than almost anything else with judges and juries!

But you need to care. I don’t mean the kind of caring that acting coaches bring out in their students – “Once you learn to fake authenticity, everything else is easy.” In each case, you should find someone, or something, that engages you.

Over three decades of practice, I’ve made friends with executives, lawyers, and employees I worked with. The co-founder of a start-up software company teamed up with me in a local tennis tournament before he took the company public and bought a professional sports team. A farmer faced loss of his farm and livelihood at the hands of a smug supplier who sued him for all he had after crop prices plunged. Concern and personal regard for both helped motivate me to do my best.

Sometimes the principles at stake alone will impel you. Nobody likes a bully, right? Several years ago, a big telecom company tried to crush a tiny rival (my client) with an injunction, partly out of spite. In another, a software vendor played lawsuit gotcha with a licensee (my client). Neither got the hundreds of millions they claimed, both in fact paid money to my clients, the defendants.

Witnesses, including DWs, pick up on your passion, or lack of it. Showing them that you care about the case, about them, or (preferably) about both will make you more effective.

*  *  *  *

Our next post will address including a non-lawyer on your team and meeting with the DW.

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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.