A Creature of the Courts: Warren Burnett

Warren Burnett, the legendary Texas trial lawyer–and if ever there was a legitimate use of the word legendary, this is it–died on a veranda overlooking a garden in West Texas on a beautiful afternoon in September with a cold beer in his hand. He was 75. He was the least sentimental idealist I ever knew.

Burnett was, simply, the finest trial lawyer in Texas and quite possibly in the nation in his day. Some will argue that Edward Bennett Williams, on the other side of the Ditch, was pretty good too, but I point out that when Burnett visited John Connally’s bribery trial as an observer, Williams moved him up to the defense table after the first day. Burnett was so revered by his colleagues that whenever he tried a case, lawyers and law students would show up like groupies to watch him. I once saw former Congressman Craig Washington, himself famous for having three times successfully defended an impossible case–a black convict who had killed a white guard–come up to Burnett at a reception, kneel and kiss his hand in respect.

“Burnett was just overpowering in a courtroom,” said Malcolm McGregor of El Paso, himself a distinguished attorney. “Most of his brilliance was in the technical aspects of the law. He had just the keenest legal mind, and he read everything, kept up with other plaintiff lawyers and the courts. He was incredible.

“He trained himself to be a great lawyer, he trained his voice to be melodious and resonant and powerful, like the greatest actors. His choice of words, the range of his vocabulary was extraordinary. He was articulate in so many ways. He could be explanatory in the most direct, simple way. And behind all that was this superior intellect, so widely read, so well-educated.” Burnett was raised poor in the mountains of Virginia, the only books in the house were the Bible and Shakespeare. He memorized much of both, and as a result his command of language was stunning. I never heard him utter a graceless sentence. He could tell priceless stories, his wit was quick as a cobra and when the occasion called for grand rhetoric, he did grand rhetoric Clarence Darrow would have wept for. But his particular genius, as both a lawyer and a friend, was for telling the mordant truth.

In one important case, the jury convicted but the judge clearly had made a reversible error in his charge to the jury. The appeals court ruled that Burnett’s summation had been so cogent and so well-expressed that he himself had corrected the error, and so upheld the conviction. Burnett was devastated. “It was a horror,” said McGregor.

Burnett was a universal lawyer, trying personal injury cases, criminal defense, election cases, civil rights, desegregation. “He was a creature of the courts,” said McGregor., “He paid no attention to his personal life.” He drank way too much, but never during trial until at the very end, and that’s why he quit.

Burnett, son of a miner, had a strong sense of how the legal system in this country grinds down on those without money. He had served as a Marine during WWII, and a buddy from the Corps called him in Virginia and said, “Let’s go to college in Texas on the GI Bill.” So they did, and then Warren went to Baylor Law School and went on to join his friend Paul McCollum, now retired from the 8th Court of Appeals, in Odessa. Odessa, a working-class town to Midland’s white-collar, is not hardly a hotbed of social justice. Burnett was thrown into trying cases immediately and found his vocation. He and McCollum both ran for political office in ’52, McCollum for county judge and Burnett for district attorney.: Burnett won at age 25, still a baby lawyer. But Burnett didn’t enjoy prosecuting people and quit after two terms. His daughter Melissa says he sent a young, homeless man to the electric chair and was ever-after haunted by it. He switched to defense.

I once heard him tell a reunion of Texas’ progressive lawyers that he although he had a successful practice in Odessa–made money, lunched daily with judges and other civic pillars–he was bored out of his mind, “until I met you people.” Burnett did not practice law just for money–which he never disdained: He felt he had spent enough of his life being poor–but for justice as well. A dewy-eyed idealist he was not. Nevertheless, he took cases for the Texas Civil Liberties Union, for the United Farmworkers, for black people and brown people with no money in hopeless circumstances–and won a staggering number of them. He won the lawsuit that desegregated the schools in Del Rio and lawsuits that helped La Raza Unida. But he was just as cutting about the bull on the left as he was about the racists on the right. He once agreed to defend a Farmworker organizer who had gotten himself into a dire pickle, but said he would take the case only if the Farmworkers explained to him what chick-a-noes were. He was making fun of the then-new, politically-correct term Chicanos.

In the mid-’70’s, the State College Coordinating Board was fixing to put a new four-year school somewhere out in West Texas. Naturally Midland and Odessa, ever rivals, got stirred up by this prospect. City fathers of both towns all excited, two town newspapers blasting each other–feelings were running high. Might as well have been a high school football championship at stake. The Powers in Midland went and hired themselves some fancy-Dan lawyer, from John Connally’s firm down in Houston. The City Fathers of Odessa had long suspected Burnett of being a card-carryin’ communist–on account of he did sometimes defend poor people for free. But they knew he was the best lawyer in the state and so they grit their teeth and hired him to represent their case. Which he did, magniloquently, grandiloquently, for more than two hours without interruption. I was privileged to hear it. At the end of Burnett’s speech, the chairman of the Coordinating Board said, “Mr. Burnett, this has indeed been a most impressive presentation. I–I am left with just one question to ask you. Do you honestly believe there is justification for a four-year college in Odessa?”

Burnett beamed and replied, “Mr. Chairman, there is enough ignorance in Odessa to justify an eight-year college.” Got the school too.

At the sort-of famous Wimberly Conference in 1968 between anti-war movement radicals and the handful of Texas lawyers willing to defend them (the anti-war people were then getting busted all over the state and put away for long sentences for exercising their constitutional rights), there promptly developed a grand split, as was the custom of the left in those days. The radicals wanted the lawyers to go into court, call the judges racist pigs and denounce the system as a fascist fraud. The lawyers felt bound by their professional principles, that their primary obligation was to keep these damn fools from spending 10 years in the Texas pen. As the civil rights lawyer David Richards reports in his memoir, Once Upon a Time in Texas, merely by showing up for this festive occasion, every lawyer there was guaranteed that the FBI would open a file on him.

Burnett “who had been much in evidence at the open bar,” finally rose to announce the consensus of the lawyers there present: “We are lawyers who are prepared to represent movement causes when the time arises, and to do so in the manner we, as lawyers, feel the cause should best be presented in court; and if this approach is not satisfactory to the young radicals foregathered on this occasion, then, to borrow from the rhetoric of the movement, ‘Fuck ’em.'”

Burnett to the bone.

Warren was an impossible husband but he finally got it right on the fourth try, his wife Kay, a woman of such sweetness and devotion that his old friends envied him. He had four children by his second wife, three step-children and three grandchildren. He gave up his law practice in Odessa to his oldest son Abner in 1989 and moved to Galveston, where he became quite a notable philanthropist as well as remaining an outrageous character, with no respect for propriety or convention. Kay says of his earlier marital mistakes: “He used to say that he wished he had met me when I was 19, and I said, ‘Oh Warren, of course it would never have worked then.’ Because the law was his mistress and his wife and his passion.”