Sing Your Closing Argument with Texas Trial Titan Karen Burgess

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Welcome to another episode

of Verdict Academy,

where we bring you the best trial

lawyers in the country who share with you

their top three pointers in 30 minutes.

And when I say we bring you the

best in the country, I mean it.

Our guest today is Karen Burgess

of Burgess Law in Austin.

She's a commercial trial attorney.

She tries cases ranging from trademark

infringement to partnership disputes in

every other kind of commercial case. Karen

is at the pinnacle of our profession.

How do we know that? Well,

she's a member of what I call the big

four invitation only organizations,

ABOTA, the International

Academy of Trial Lawyers,

the American College of Trial Lawyers,

and the International

Society of Barristers. And

Karen is not only a member,

but a leader.

She's the immediate past president of

the academy and has served ABOTA as its

national treasurer and as

president of the Austin chapter.

Karen was raised in Waco,

Texas and graduated from Rice University

in three years and then graduated

from UT Austin Law where she

met her wonderful husband,

Brian Gohorns. Right?

Horn, did I say that right?

Yeah, Hookum.

Hookam.

Karen founded Burgess Law in Austin

boutique,

which limits its cases and they're

all exquisitely worked up for trial.

We'd be here all day talking about

Karen's impressive trial results,

but perhaps what is most impressive

is that she had the guts to sing

to a jury in closing argument.

As accomplished a trial attorney as she

is, Karen is an incredibly approachable,

kind, and real person. Karen Burgess,

welcome to Verdict Academy.

Well, I thank you. I am

not an accomplished singer.

I can tell you that for sure. For sure.

But she had the guts to do it.

And I might do it today. We're talking

about closing, so you never know.

Karen,

what drew you to become a courtroom

trial attorney as opposed to any other

kind of lawyer?

Well, I was one of those

speech and debate kids,

and my mom knew one lawyer

and she was very glamorous.

I didn't realize that might have

been because she didn't have kids,

so a fancy car and went on vacation.

So I thought that sounded ...

I didn't rule out lawyer from that

experience. But then when I was ...

I still have no idea what she did as a

lawyer, but when I was in high school,

generous lawyers from the community,

we didn't know them before,

but they came in and they taught

our mock trial classes and our team,

and they coached our team to great

heights within the Waco community and

beyond. And they were just so generous.

I still use their tips today in trial.

They were really good trial lawyers and

they were really generous with their

time and then a-.

Isn't the high school mock

trial you're talking about?

High school mock trial. So when you get

that invitation and you think, "Gosh,

I've just got one more thing to do on

my list today." You might be really

inspiring someone to do this and

then maybe to serve others as well.

So they did that.

And then I went to a law school

knowing I wanted to be a trial lawyer,

but really a lot of people go to law

school thinking that they're going to be

trial lawyers, especially women. And

even when you and I went to school,

it was fifty fifty women and

you don't see that in ...

We were calling the big

four, you see 10 to 20,

25 max percent women in those

groups. And the reason is,

I think because they don't get

that early trial experience.

And then once you get into having kids,

you're right in that really grind of

discovery and whatnot. But I went to work

for some guys who had just broken off

from a national firm and broken up with a

national firm,

but they were desperate and they had

three trials on the docket in the next six

months. And I tried those three cases,

second chair to juries right off the

bat and really, really got hooked.

And so even when things got dark,

when we had two littles at home,

we powered through it.

That's incredible.

I know one of the things we're going

to talk about is kind of balance and

logistics and all that kind of stuff.

And I didn't want to point

this out in your introduction,

but trial lawyer is a grind,

right? I mean, it's the best thing.

It's the most exciting thing, but it's

a grind for anybody. And for women,

it's doubly hard. There's

a double standard.

You guys are held to an

almost impossible standard.

If you choose to have a

family, for whatever reason,

the wife tends to get more or the mother

tends to get more of the household

stuff with the kids. It's just

kind of how it is. I know partners,

I know Brian is an incredible partner.

I know he shares

responsibilities with you,

but it is really hard to

be a woman trial attorney.

You have to decide that you're not going

to be on the board of the school and

also bring the cupcakes

to every single thing.

So that's kind of how you have

to ... Or you can decide, no,

I want to bring the cupcakes, so I'm going

to not do this other thing. But yeah,

it's a hard choice.

And hopefully you're going to make it

in partnership with your partner or the

other loved ones around you that are

creating the village around your kids.

Yeah. I think we're going to

talk about it in a little bit.

So let's get to the three things

that any trialer needs to know.

My understanding, Karen, we're going to

talk about one, closing argument, two,

direct examination. And then third

topic is love, logistics and the law,

kind of what we just talked

about a little bit, I think.

Is that generally right?

Sounds great.

Awesome. Let's talk

about closing argument.

What advice do you want to impart

on our audience about closing?

It's so fun. All this

other work, all this grind,

all those early mornings and

late nights and everything,

it's all worth it when you

get to connect with a jury.

These are real people who are

making decisions about our disputes.

And when we talk to people, you're

talking about the International Academy.

When we talk to foreign

lawyers and journalists,

they're shocked when we take them to

a courtroom and they see that these

ordinary people are making

determinations about gigantic,

life-changing, company killing,

company saving decisions.

And it is really that grand experiment

and you get to be part of it.

From the beginning,

you get to be part of it even if you're

sitting fifth chair and doing the

research, you're still part of it.

But it's really exciting when you get to

talk to them in closing because it's so

direct.

So I have a formula for a closing and

I talk about it to people and I say,

"If I'm ever opposite you in a case,

you know what I'm going to do on closing.

You don't have to guess.

I'm telling you now I'm going to do it

the same way every single time until

somebody really convinces me of something

else." And so you start with a theme,

that's its whole own topic.

I hope somebody either has

or will speak on themes,

but how you're going to get your theme.

And you referenced the case where I sang,

and so I'll give that one as an

example, which was Lukenbach, Texas.

And so the song like Going to Luke and

Buck Texas with William Waylon and-.

I'm sorry, I don't. I don't

know that song. I'm sorry.

Kevin Morrison.

I know. I'm so bad. Sorry.

We need to get you to Texas and spend

some time working on you. But okay,

so others in your audience

hopefully will know that song,

but it's from the '70s. It was like The

Birth of Outlaw Country, Willie Nelson,

Waylon Jennings, Jerry Jeff Walker,

and they're my client and

they have a trademark.

It was an old German community, but

it was also, it's a music venue.

It's a trademarked music venue.

These hippie cowboy poets back in the

70s actually trademarked this stuff

somehow or another or knew someone

who knew how to do that and they did.

And so generationally- Kind.

Of like the Grand Ole Opry situation

or what? Tell me, it's a town,

but it's a music venue. Just

explain what it is. It's.

An unincorporated municipality.

So it was a German community.

They called Lukenbach because that was

somebody's last name who owned the little

post office, but there never was a town.

And so it is a defense to trademark

to be a geographic location,

but it's much harder to get that

defense once that trademark has

solidified as a trademark.

And this one had been on the records

for so long that it had solidified.

So it was a higher burden for the defense

to get around than it would've been if

we didn't have those strong trademarks.

But there are all these liquor

billionaires in Texas like Tito.

His name is literally Tito Beverage.

So Tito's comes from Austin and he's a

great corporate citizen. He's now sold,

but he's a great citizen of Austin.

Patron is owned by an Austinite.

So all these liquor billionaires. And

so when there's liquor billionaires,

there's liquor promoters. So this liquor

promoter goes to Lukenbach and says,

"I've got this $100 million,

I don't know how much million dollar idea

to do Lukenbach whiskey." They talked

to him for a little while and they

look into it and they see his past

business practices and they

decide to pass and they say,

they literally write an email that says,

"Much obliged, sir, but no thank you.

" So that's one of the emails. So anyway,

he props up this other

guy. There's two cases.

He props up this other lodge owner who's

calling it Lukenbach who had agreed to

change it,

but puts his case to trial with the same

lawyers as the promoter first because

he thinks that's going to

be more sympathetic. And

there's a whole writeup in

Texas Monthly about this, but he puts

this case up first, but we're still,

we're really going to try Scloss.

The promoter is who we're targeting.

And so our theme there

was, this is all to get to,

with the theme was he took what

he couldn't buy. So he came to us,

he asked to buy it, we said no.

So he just starts it on his own

and takes what he can't buy.

So that's the fun part, singing

to them about who we are,

talking about the theme of he took,

you always want to use

the protagonist first.

He took what he couldn't buy and it's

all of this legend and lore that's in

the hearts of a lot of Texans,

but the younger jurors

didn't know Lukenbach.

They came from wherever.

They might've gone to UT and they stayed

or whatever. But by the time we're to

this point in the trial at closing,

they all know Lukenbach and they've

heard from these country legends and

whatnot. So we get to do that fun

part. Then comes the less sexy part,

which is what I call

the charged sandwiches.

And I actually tell the jury,

I am now making charged

sandwiches because part of this is

a long time ago I figured out I can't be

super smooth like Kevin Morrison or the

big gigantic Texas trial lawyer,

but I can be the trusted source.

So I'm trying to be the teacher. And I

used to think about being a reporter,

but now I guess everyone trusts half of

them or something like that or one third

of them. But what you do is you take,

I mean, you probably already do this,

but you take the charge and you

might get it very literally- We.

Call them jury instructions, but you call.

Them charges.

But same deal. Yep.

Go ahead. And we call the instructions

the part within the question,

but we call the charge the questions.

The verdict form, the

questions on the verdict?

Right.

Got it.

So those are combined for us and we

kind of call the whole thing the charge.

Got it. But as you know, you might,

depending on what court you're in,

you might not get the final till nine

o'clock at night that night before you're

going to be giving the closing.

But you have an idea of it.

It really motivates you to

get going on the charge early.

But what I do is put up, I use

slides, so it will be a late night,

but you have a lot of help.

Here's question number one,

maybe you've already talked about

burden and then question number one and

helpful instructions,

highlight the words in that question

that you want them to think about,

maybe even dissect the

sentence if it's complicated.

And then do three to five pieces of

evidence and testimony that support the

answer you want and then go

back to the question and put the

answer. So I call it a charge sandwich,

but it's really an evidence sandwich.

So it's charge is the bread.

You have the charge question,

you have the evidence, you have the

charge answer and you write it in,

either you write it in or you

have your slide write it in.

And it's especially if

you're the plaintiff and

especially when you're talking

about money.

And then the reason is you want

to arm those advocates for you in

the jury room and you have to tell them

the answer. And if you don't have ...

So we use documents,

things like for actual confusion of

a trademark, social media is great,

emails, contracts highlighted,

and they've all seen this

evidence throughout the

trial. And then we ... Charts,

if you've drawn flip charts,

I love using multimedia,

different kinds of ways

of relating to them.

Make sure you take a picture

of them so you can use them,

those demonstratives in that slideshow,

and then answer the charge sandwich,

go back to theme.

And then if you're lucky enough

to be the plaintiff in giving a

closing end with obviously

a question to the defense,

that's going to be very hard for them to

answer. If you're on the defense side,

then either answer the question at

some point, not at the beginning,

don't take the bait. Usually don't take

the bait unless you really need to,

or rehash it as them trying to

change what's important here.

And then when you get to come back

up there, that's the really fun part.

Usually- So.

You get rebuttal in Texas. Do you.

Not get it in California?

Yeah, we do, but every jurisdiction's

different. Yep, we do. Yep.

So yeah, when you get Wrebuttal,

that's the part where you really get to

sing and really get to read the lyrics

from the song and all

that, the really fun part.

Yeah. So you got a great

template, basically story theme.

And then let's say there's three,

I'll call them three questions in the

verdict form or three charges, one, two,

three, just make it

simple. Two, three, four,

five pieces of evidence to support

your answer on the charge, fill it out,

answer that question, and then et

cetera. And then you close with theme,

maybe question to defense.

There's going to be really

difficult for them to answer,

and then you save your

great stuff for rebuttal.

Exactly, exactly.

And I would also say this

is a really granular point.

When you're putting those three to

five pieces of evidence, testimony,

if you've got the

transcript, that's great.

But if you don't have the

transcript bullet points work,

I like to keep notes on dividers if you

have a physical notebook of each witness

of colorful language, great cross answers.

But then the other thing is when

it's a documentary piece of evidence,

to have the exhibit number on there and

you want to actually read it out and

say,

"This is exhibit number 18 and it's

the key email." And so then you see the

jurors writing that down if they're able

to take notes and they're going to go

back there in the jury because you're not

back there with them in the room where

everything is really going to happen. And.

Let you back in the jury room in Texas?

They don't let you know in

the room where it happens.

And jurors are nervous from the

beginning when they get there, right?

And you're trying to have empathy

for the audience and you are

holding the teacher's guide.

Why not give it to them and give

them the evidence and the- So.

You're the credible truth

teller. That's your role.

I'm going to tell you the truth in this

case and back it up with evidence and

they're going to trust you. That's

what you want to accomplish in court.

That's it. The trusted.

Source. Awesome. Direct examination.

This is kind of undervalued,

I think. Some, "Oh,

let's give my second chair first trial.

Let's give them direct or give

her direct." But it's hard.

It's so hard. I thought when

I was asked to speak on this,

it was an American college

event and I thought, okay,

I haven't done a direct in a really

long time. And I was thinking, oh,

that's because I'm really giving

opportunities to the young ...

And then I realized, no, it is

hard. In fact, it is really hard.

You have to spend so ... To make a

good ... It's easy to do a bad direct.

It's easy to lead them around. It's

easy for you to do all the talking.

It's really hard to do a good direct.

And I read and I also went and

visited with associates about

how to do it right. You have a

lot of expectation lying on it.

It's your client often, right?

And so they want to look good.

So everyone thinks that it's easy.

Everyone has very high expectations of it.

You have this illusion of control

around what's happening there,

and you have to deal with

all those thinking exhibits.

So you are actually that charge that we

were talking about that they told you in

law school to do at the beginning. If

you have to get in all the evidence,

you have to make sure you're getting in

all those exhibits that you need to get

through them. So you

can't really control it,

but you can control a

lot of parts about it.

And that's what I like to try to

think about is what is it we can,

what is it that we can do?

And the main thing is meet

with the client a lot,

like meet with the client

a lot in short bursts.

And if you can keep it to

two hours max and just do it

frequently and get the story down

in a way where you can get the

key words that you need for that charge,

maybe even writing them

on that flip chart,

because that physicality of doing that

or doing a checklist can be really

helpful and just nail down those

statements that you need for the charge,

but also make them trust and like her.

A him I recently

had had been a combat veteran in

Afghanistan and he was now in business.

And you would think being a witness on

the stand would be the easiest thing

ever, the opposite.

He was holding on so tight to the

jury box. I had to move my client.

This is your client?

My client, he was an

executive in my client.

And I'm like moving my body all

around the well so that I can try to

get him to start looking at me

and stop having panic attack.

And so you never know until you're

up there what they're going to do,

but trying to make them as comfortable

as possible. Sometimes, I mean,

in a case like that, you can even

ask, "Man, you're a combat veteran,

but you look a little nervous."

And then let them sort of-.

That's.

The.

Obvious question, right? They all

see, nervous. Just let's get out here.

What's.

The elephant in the room?

You're nervous, aren't you?

Exactly.

Yeah.

Exactly.

I think there's a lot to think

about in terms of outlining

what you can do on direct.

I'm going to go back on this.

We were talking about the

evidence and the exhibits.

It's really important to have

a cheat sheet for objections

on those and just to be ready on

what's going to be objectionable,

trying to get as much as

you can in advance, being

empathetic for the listener.

They don't like those evidentiary

battles. They're very, very boring.

And I call it lump and clump.

A lot of cases that I work on have

really voluminous documents doing as many

summaries as you can possibly get in.

I have one of my favorite sayings from

those bosses that I worked for when I

first got out of law school who eventually

became my partners and one of them

always said, "Karen,

you're doing all this work,

but really cases are won and lost by

words coming out of people's mouths."

And he would say it real slow. And what

he really meant is whatever we do is all

setting up for what those people on

the stand are going to do on cross and

direct. And you know Rusty Hardin?

Yeah, of course.

So Rusty had a case in DC.

I guess the SEC was

prosecuting his client and he

said the government lawyer called

him up and he said, "Rusty,

we've got you dead to right. The documents

just prove this case." And he said,

"Do you have any

documents that can get up,

swear out an oath and take the

stand?" And then he's like,

"If you don't have anybody

who can talk about it,

it's not going to get you there." But

then you have to get into that kind of be

in the moment conversational style.

And that takes really

getting to know the person.

And sometimes my clients

are real estate pros.

Sometimes they are finance pros.

They wear little vests

You have to get- And.

They know this more than you do, so

please don't tell me about my job here.

I get it. I got it. I give

presentations, right? You get that a lot?

Oh yeah, exactly. And people like

me, I'm charming or whatever.

And so that takes way longer to build.

It's really truly relationship.

I had one guy tell me,

"Why am I meeting with you all

these times?" He basically was like,

"I don't even like you. " But I

think he came to sort of like me.

But the question was, how do we ...

He was a plaintiff in a really big lawsuit

where he had lost an opportunity and

we couldn't get him to be

vulnerable at all. And finally,

I worked with a jury consultant

who helped me ask this question,

which I think is a great question for

anything. And that is, where were you?

So using a sense of place.

And so where were you when you found out

that what you had built this business

on was a lie.

And he describes this brick wall that

anyone in our area would know where it

was and outside of a FedEx office. And

it's just like he could see it and then

you could see it and then

you could see him seeing it.

So he got out of, oh my God,

I'm in trial to putting him in that place

so he allow him to tell the story and

be comfortable.

Literally the place.

And then another thing that happened in

that case was there was an email where

he looked less than truthful

in the email. And I don't know,

most of us have had cases where

this happens, right? It's.

Bad evidence. We all got.

Bad evidence.

That's why the case is going to trial.

And you got to inoculate. You got to

deal. I think you have to deal with that.

100%. I've heard that the only

time that you don't deal with that,

and I've heard this from

criminal defense lawyer friends,

is if they literally can't, they

literally can't say- There's.

No answer.

No, they can only say mistakes were

made, or I see that you feel that way.

I'm sorry that you feel that

way. But for most people,

you have to get it out there. And

for him, what we did was we put it,

you contextualize, put it in

the timeline. So in that case,

the COVID had just been announced and

here he's in this huge real estate

development and it's like we do a timeline

and then you write when you see that

email in the timeline, it

doesn't look ... I mean,

it's not my favorite piece of evidence,

but it doesn't. It just went away. It's.

Buried basically.

Yeah. It's varied.

And we got to deal with it in advance

of the defense dealing with it.

Got it. Well, I got to move it

along here for our listeners.

Let's hit the last one.

Let's love logistics and the

law. Talk to us about that,

Karen.

That is such a fun topic. So I thought

about this a lot and it's really like,

okay, so that's alliteration, right?

But there's more alliteration.

It's really about people and priorities.

And so the idea is that you've got

these people around you who are

helping you, otherwise you're

not even able to do this job.

So somehow or another, you've got

people around you that are great people.

And so make sure you empathize with

that audience as well all the time.

They may not be getting all those props

back from the jury or the highs and lows

that we get from our job that

can be really motivating.

But also my pastor back

when my kids were little,

who's now retired, but still

a very good family friend,

he and his wife were both pastors. So

they met at Princeton Theology School,

Theological Seminary.

So they're both very smart and they both

had the same jobs in different places

for a while in their career.

And then she went and got a second PhD.

But they said, "We don't think

there's any such thing as balance.

We think there's just priorities." And

if you think about when you're doing yoga

and things, you really

look at a point to balance.

I think those two things really

go, what does balance mean?

Does it mean that I'm perfectly

being the best mom ever

today and I'm also doing closing

argument in a major trial?

No, probably not. But does it

mean that after that trial,

I take a special weekend where

we do something together.

I wish they wanted to do special

week. No, sometimes they do want it.

They're in college now. As.

Long as you're paying, I'll go with

you. That's been my experience.

Exactly. But yeah, so it's like

keep focused on what you need to do,

set your priorities. Of course, if a

kid gets sick or something like that,

then all those other priorities

get blown. But it's just like,

what is the priority today? And make

sure that if you have a life partner,

that life partner gets to be in

that spotlight at some point,

which is really hard when

you have kids. So doing that.

But one of the ways that we did that as

a family was we had family meeting and

starting when the kids were really little.

And we did it on Sundays at lunch and

we went to the same Mexican restaurant

every single Sunday and we would sit

down and call the meeting to order it.

These are like with a three-year-old

and by the time they were in elementary

school, they wanted to add to the agenda.

It's the way that you can kind of save

yourself from running out to the hobby

store at eight o'clock on a Wednesday

to go get all the parts for

that poster board or whatever.

Or if somebody's going to have a big

outing that they want to do as a teenager

that might need a conversation as a group,

at least you're talking about what the

week's going to look like and where

everybody's going to be.

And part of that is for you,

if you want to be a trial lawyer and

you want to be somebody who's developing

business as a trial lawyer, is you have

to make some time during that week,

probably at least once a week to go

be with other lawyers in community.

And because for most of us, most of

our cases come from other lawyers.

And also I'll tell you that dark spot

where you're doing all discovery and your

kids are little,

legal community can be the way that you

make it through that. And other dark

spots will come in your career. And

I guess I'm sort of a lawyer nerd,

but I find that when I see the people

around me and the things that they're

doing for the world and

for the law and I get to

be part of that group, that's

what keeps me going day to day.

And if you don't make time for that,

then it's going to be hard

to enjoy the practice.

And it's also going to be really hard

to develop business. So it's not class.

I don't like the word networking,

but it's building legal community.

Yeah. No,

it's good to be a part of something bigger

than you and having a cause to fight

for.

Exactly.

Yeah.

And you had incredible support from

your husband raising kids and getting

through your ... Now your

kids are quote raised,

basically they have kids the same age.

And so they're in college and they're ...

And.

Both were, they were all

in Boston at one point.

They were. Yeah.

But those are tough times when you're

a trial lawyer and you get a great

partner, you obviously had

great support in the office.

There's no such thing as a perfectly

... People talk about work-life balance.

Does that exist?

That's what I'm saying is it's

priorities. I really don't think that ...

And that's why family meeting is so nice

because you sit there and you discuss

those priorities out loud with the

other people in the room. So you'll.

Say, "Hey, I got a huge dep in wherever,

New York, Wednesday and Thursday.

Oh mom, I got a project,

a science project due Wednesday." And so

then you got to figure out how this is

going to get done, right?

Right. And maybe it's Sunday right now,

so maybe we can go to the hobby store

on the way home instead of waiting till

Tuesday night.

On the way to the airport. Yeah.

And also maybe that way I can help

pitch in and Brian's not stuck 100%.

Brian, who's also, by the

way, a very great lawyer,

but a different kind of lawyer, but

he's not stuck doing it all night.

If you give it a little

runway, you're able to help a.

Little.

More. And then maybe you can also

say, "So let's do date night,

Saturday night when we get back." I'm

not saying I did that all the time,

but it would be- It's a goal.

We aspire.

The goal. Aspirational. Aspirational.

Half hour flew by. I knew it would.

Do you have any final words that you

want to share with our listeners,

younger trial lawyers trying to make their

way in this beautiful profession that

we're in?

If you want to be a trial

lawyer, there's a way to do it.

So if you think that you need to go on

kind of a mommy track or something like

that, and there's nothing wrong

with going on the mommy track,

but if you want to be a trial lawyer,

maybe you could just not be a superstar

for one year and you could prioritize

your health and your relationship with

your baby and your spouse or partner.

And then you don't have to

be perfect all the time.

And if you're going to do it,

it's not going to be perfect.

It's going to be kind of messy.

Got to be messy, going to be.

Real. It's worth it.

But it's worth it. 100%. Karen Burgess,

thanks for being a guest on Verdict

Academy. I just had the best time.

Thanks for being my

friend, Kevin Morrison.

Back at you.

Bye. I got.

To look it up some country music now.

Oh yeah, you better.

Thank you for listening

to Verdict Academy.

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