The late Warren Burnett was the last of his breed: a passionate defender of the little guyand of the now-radical notion that there's honor in being a trial lawyer.
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WHEN WARREN BURNETT, THE FAMOUS Odessa trial lawyer, died in September at age 75, memories flooded back of people accused of crimes, jailed labor organizers, segregated students, and countless others crushed by the boots of big business and big government. But mostly I thought of myself. Warren, the son of a Virginia miner, was a lifelong champion of the poor and the oppressed, and in 1968 nobody was poorer or more oppressed than me, or so I believed at the time. Those were the days of the anti-war and civil rights movements, and anyone a wee bit off center faced the wrath of the establishment. I’d accidentally and innocently given a joint to a hairball who turned out to be a federal narcotics agent, and I could have been sent away for life.
Though I had never met Warren, he was recruited by a friend to help me and enthusiastically came to my rescue, bringing with him some of the finest legal talent in Texas—Malcolm McGregor, Sam Houston Clinton, and Babe Schwartz—and at no cost to me. Since I was a writer rather than, say, a chimney sweep, I considered this my due. I didn’t want a mere acquittal; I wanted an apology. One morning, during pretrial preparation, I launched into a tirade on the injustice of it all, citing the Constitution, the Bill of Rights, the Magna Carta, and Martin Luther’s 95 theses and quoting Jefferson, Madison, Hamilton, Oliver Wendell Holmes, the Bible, the Talmud, and the Koran. Warren stopped me with a raised hand and said in his wonderfully melodious growl, “Cartwright, if they do send you to the Big Rodeo, don’t tell them you’re a writer.”
Nobody could cut through the crap like Warren Burnett. I’ve never known a smarter, wittier, or more insightful man. At a hearing in the mid-seventies to determine the location of a new university in West Texas, the chairman of the Higher Education Coordinating Board asked Warren if he honestly believed there was justification for a four-year college in Odessa. “Mr. Chairman,” Warren beamed, “there’s enough ignorance in Odessa to justify an eight-year college.”
Warren was a hard-traveled nihilist who rode his big Harley across Mexico, flew his Tri-Pacer through thunderstorms, and disdained the therapeutic values of sleep and sobriety. He was bighearted, cynical, generous, obstreperous, and always ready to mix it up. Newspaper columnist Molly Ivins called him “the least sentimental idealist I ever knew.” He always claimed that his acts of grace and altruism were nothing more than manifestations of ego and too many varieties of mood modifiers. Causes were his passion and also his weakness—his favorites were the Texas Civil Liberties Union, the United Farm Workers, and the Raza Unida party—but he pandered to no ideology. Molly wrote that he agreed to defend a Farm Workers organizer only if the Farm Workers explained to him what “chick-a-noes” were. “He was making fun of the then-new, politically correct term ‘chicanos,'” she explained. Warren was a leftist in the old, pure sense, convinced that the system was fixed in favor of the rich and powerful and that the workers would eventually rise up and smite the bastards. The back seat of whatever junker he happened to be driving was usually full of beer cans and left-wing leaflets dating back to the fifties. He was the only person I know who retained membership in the International Workers of the World into the twenty-first century. As far as I know, his dues were paid up when he died.
In the courtroom, Warren overwhelmed. He had a superior intellect and the voice of a Shakespearean actor, resonant and huge; he used language, depending on the circumstances, as a rapier, a dagger, or a broadsword. “Most of his brilliance was in the technical aspects of the law,” Malcolm McGregor told the Texas Observer. “He had just the keenest legal mind, and he read everything, kept up with other plaintiff lawyers and the courts.” He also suffered no fool gladly, demonstrated no patience for hypocrisy or mendacity, and was famous for his irreverence. Sitting with a panel of lawyers at the University of Texas Law School, he fielded a question from the audience: What makes a great trial lawyer? “The answer, of course, is crooked jurors,” Warren said with a straight face. Once when he was arguing an unwinnable case before the Fifth Circuit Court of Appeals, a judge asked if he had ever heard of the Doctrine of Some Latin Bull or Other. Warren responded, “In my small town of Odessa, Texas, we speak of little else.” He made it look simple. “Warren rarely prepared for trial,” Houston attorney Richard Mithoff reminded me. “He enjoyed the challenge of learning the case as it unfolded. He would put the corporation’s chief witness on the stand first to learn the case. Once he learned it, he was very dangerous.”
To law students and his fellow lawyers, Warren was a cult figure. What I remember most about my own trial—aside from the part where Warren finally convinced the prosecution that its case was fatally flawed—was the mob of UT law students that jammed the courtroom and spilled out into the halls. Not long after Warren’s death, I learned that Mithoff and his Austin partner, Tommy Jacks, were among them. “He was our hero, one of the good guys who represented the little people,” Jacks told me. “We were all budding leftists back then, and Warren embodied everything we hoped to become.” Mithoff spent one summer in Odessa, working at the behest of Warren and Ralph Nader to prove that oil companies in West Texas were not paying their fair share of property taxes. After a hearing in which Warren reduced an accountant for the oil companies to confetti, a reporter from the Odessa American asked him how he could possibly associate with the likes of Nader. Warren blurted out so that everyone in the courtroom could hear, “Being opposed to Ralph Nader puts you in a position of favoring rat shit in hot dogs.”
Warren was the last and one of the best of his breed—a trial lawyer before the term was transformed into an epithet. You’ll never see the likes of him again, because the law and the political climate won’t permit it. “He was livid about the changing nature of trial procedure, the nightmare of paper during discovery, and the cumbersome rules that are making the individual practitioner of law almost extinct,” says longtime Austin attorney Dave Richards. “The overhead is enormous today, with the result that small practitioners are being put out of business. It’s a button-down deal now. You can’t tell a UT law student from a student at Harvard Business School. Starting attorneys are asking for a hundred grand. Warren did it for the blast.” In the mid-nineties Warren turned over his practice to his eldest son and focused on a second, smaller law office he had opened in Galveston. There he met and married Kay, his fourth wife, a lovely woman of rare patience and range. After that he lived the quiet life of a philanthropist and wise elder. Among other good deeds, he provided seed money for the Arts Alliance Center at Clear Lake, which Kay founded and operates.
That’s where we gathered for his wake in October, where dozens of stories were related by dozens of standout lawyers who came to pay final tribute. One recalled the exact moment when the great man knew it was time to hang up his spikes. Warren was in his mid-sixties by then, semi-retired and drinking way too much but no less the warrior with a belly full of fire. He was in Dallas helping a young colleague try a lawsuit when the opposing attorney rattled off a lengthy and bewildering objection, catching Warren off guard. Approaching the bench, Warren asked, “Your Honor, what the f— is he talking about?” The judge smiled benignly and informed him, “There has been a change in the rules, Mr. Burnett. I’m afraid he’s got you.”
Some will say the law passed him by, but don’t believe it. The law was Warren’s religion and it excommunicated him. He was far too cynical ever to have acknowledged a higher being and argued endlessly with Kay and me that Marx had it right when he said that religion is the opiate of the masses. Now that he’s gone, I don’t think it really matters. I feel sure that God believed in Warren Burnett.