In Part 3 of our Preparing Difficult Witnesses for Trial series (see Part 1 and Part 2), we study a key aspect of trial-team dynamics and the necessity of getting face-to-face with difficult witnesses (DWs).

Include a non-lawyer on the trial team.

My firm, Susman Godfrey, assembles a unique trial team for each case. We don’t assign associates or paralegals to partners. The typical trial team also combines lawyers from two or more of our four offices (in Houston, Los Angeles, New York, and Seattle). Partly as a result of the geographic spread of team members, we hold trial team calls, generally on a weekly basis, to talk about task assignments, case developments, strategic issues, and other matters. The calls seldom last more than 20 to 30 minutes, but they almost always include the individual client or representatives of an organizational client.

I’ve found over the years that, for corporate clients, the trial team benefits enormously from having both an in-house lawyer and a business person receive the weekly task assignments memo and participate in the weekly calls. The combination engages both the client’s legal department and its executive management – two groups that don’t always communicate optimally. The manager, who typically finds the process eye-opening, has the ability to access resources that enable the trial team to function more nimbly, smoothly, and effectively.

What does that have to do with preparing DWs? Sometimes, bringing an executive into the trial team prevents him or her – who usually had some involvement in the events underlying the dispute – from becoming a DW. More often, he or she can direct others within the organization to give trial preparation a high priority. You will find that quality especially useful at crunch time! And non-lawyer executives often bring industry-specific knowledge, experience, and perspectives that a team of legal professionals may lack.

Note that it’s essential to have buy-in from the legal department. I’ve experienced delays with clients who are unfamiliar with having a business person as an active trial team member from early in a case. But persistence pays off, particularly if you stress that the main line between outside counsel and management will continue to run through your in-house boss. 


You also can’t fully prepare a DW unless you spend time with him or her. All of the suggestions I make below work far better – and perhaps only – if you meet in person.

Also, you must do it more than once. Indeed, depending on how difficult the DW is, you may need more than two face-to-faces. You’ll need several hours each time.

The need for spending time with the DW in the flesh may seem obvious, but let’s explore the reasons anyway. First come the visual cues you and the DW send and receive. You’ll understand the DW better, and she’ll get more of what you need to convey, if you interact in physical space rather than by phone or – God forbid – via keyboard.

You must size up the DW, too. Does he strike you as trustworthy? Can you believe what he tells you? Is he hiding something? You’ll likely have to do some friendly cross-examination to get at the truth. Even Clarence Darrow couldn’t do that consistently if he didn’t have the DW in sight.

Nor should you discount the importance of bonding. You must maintain objectivity and a professional distance, but that doesn’t require cold-fish treatment. Impress on the DW your fervent wish that she will do a splendid job convincing the jury of the true facts she has personal knowledge of. Stress that your role is to help her communicate the truth effectively and avoid errors and snares that might interfere with doing that. “Whether or not a witness has a stake in the outcome of the case, a lawyer should protect the witness from appearing unnecessarily dishonest, venal, incompetent, graceless, or unintelligent.” Witness Preparation, 68 Tex. L. Rev. at 288-89.

The question of venue arises. Lawyers prefer to meet with witnesses in their offices for reasons of personal convenience and availability of colleagues, documents, conference rooms, and support. Those things count for something with all witnesses, including DWs, but the crucial consideration with the DW is the greater likelihood that you will get the DW’s full attention.

Distractions for the DW abound on the DW’s home turf. That goes especially for executives and other alpha characters, who excel at finding ways to get others to do what they want. Plus you feel off-balance there and hardly in control. Avoid the DW’s offices. Choose a neutral location if for some reason – such as an out of town trial – you can’t meet at your place.

A meeting-by-phone provides a poor substitute for the in-person kind. Do all you reasonably can to avoid the former. But if you must conduct one of your meetings with the DW remotely, at least use a videoconferencing service such as Skype.

*   *   *   *

In Part 4: the story of me and conducting a full interview.

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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.