In this penultimate installment of my series on preparing difficult witnesses (DWs) for trial, we get to some of the real nitty-gritty: Learning the story of me, doing a full interview, and then explaining what matters and why. As will become clear, the sequence matters — a lot.

 Learn the DW’s story of me.

People love to talk about themselves, but they seldom get to. Asking the DW to tell you her story allows her to scratch that itch, producing happiness.

I’ve had DWs who you’d think had no one to talk to. They would start talking fast because the freedom to go on about their favorite subject while someone else listened attentively felt unfamiliar. But boy do they like it!

For our purposes, the main point is to get the DW to relax a bit. But you should also pay close attention. You will probably learn personal details that you can use to humanize the DW with the jury. One of my dearest clients grew up in a small Italian town, worked in a movie theater there as a boy, and took a food service job on a cruise ship before emigrating to Dallas with his sweetheart and becoming one of the most successful restaurateurs in Texas. In another case, a distinguished MIT professor of computer science spent a month with his wife cycling across the United States.

This phase of the prep need not take long. It rarely lasts more than 15 minutes. It starts with where the DW was born, where he grew up, and where he went to high school and then shifts to college, family, and work before getting to his involvement in the facts underlying the case. Just remember: you are establishing rapport while digging for gold.

Do a full interview

Now you’ve completed all your homework. You’ve studied the pleadings; re-read the chronology of events and cast of characters; consulted the relevant treatises, case law, statutes, and Bill of Rights provisions; reviewed the jury questions; spent quality time with the key case documents and any prior statements by your DW; surveyed his digital footprint on social media; and checked his litigation history. You’ve also taken him through his confidence-building story of me. Here begins the real fun.

Judge Robert Keeton wrote, in his authoritative Trial Tactics and Methods, that “if you prepare your case properly you will not call a witness to the stand without having asked the witness what his testimony will be on all points as to which you can anticipate he may be questioned.” Your thorough interview of the DW will – along with the materials you’ve assembled – provide the raw material.

The DW’s story of me will naturally segue into her involvement in the underlying facts. Go chronologically. The interview will now begin to slow down as details emerge. Take time to pause on particulars of important meetings and other events. Ask non-leading questions to keep the DW’s narrative moving forward in temporal sequence.

Strive to keep it factual, and let the story come out as straightforwardly as possible. Avoid any talk about claims and defenses. That will come soon enough. In fact, talk as little as possible. Keep the spotlight on the DW’s description of the facts.

Take notes. Really good ones, preferably in Word so you can share them with colleagues. You’ll need them later, not least for when you prepare the first draft of the Hardest Questions memo

Explain what matters and why.

Many DWs will have a vague idea of what the case involves legally. Without a good grasp of the claims and defenses, your DW will not understand the purpose behind your questions on direct or the thrust of your opposing friend’s cross-examination. Give your DW a basic grounding. But make sure not to do it until after the full initial interview. You want to avoid any risk that the legal consequences of the facts might affect the DW’s recollection of them.

Once I defended a big defense contractor against a claim that it had poached a competitor’s employees in order to gain business at the competitor’s expense. The competitor alleged theft of trade secrets, but they had a thin case there. What they really were trying to do, I thought, was simply to prevent the former employees from using their skills to benefit my client.

At the hearing on the competitor’s request for a temporary injunction, we used big boards to blow up parts of the employment agreements for the judge to see. I asked the ex-employees about the contract provisions but added a question about whether the agreements included a non-compete. After the presentation of evidence ended, I argued that the competitor could not win a temporary injunction unless it had a non-compete. Pointing to one of the big boards, I said I would show the court the full text of the competitor’s non-compete. Then I flipped the board over in its easel to display the back side – a perfect blank.

Don’t get cute, though. Make sure that your reviewing of the case’s legal underpinnings aims to enhance the witness’s ability to give truthful testimony, not to skew it one way or another. See Witness Preparation, 68 Tex. L. Rev. at 300-04.

*   *   *   *

Next time: hardest questions, dry runs, and maintaining a safe distance.

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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.