A curious housekeeper who noticed Kim Bueno lugging weeks’ worth of outfits into her hotel room picked up a conversation with the trial attorney that sparked a longstanding pretrial ritual.
The housekeeper asked Bueno about her trial. The now partner at King & Spalding explained that she defended a drug manufacturer against a lawsuit alleging its product was harmful.
The housekeeper drilled in on three questions: Did the plaintiff take the drug? Did this drug hurt other people? How do you know it didn’t hurt the plaintiff?
Bueno realized she needed to rework her opening statement.
“The questions that the jury really wants to know and have answered are the ones that that housekeeper just asked me,” Bueno remembers thinking.
The chance encounter about a decade ago stuck with Bueno, who now seeks out a 10- or 15-minute conversation ahead of trial with a fairly random person such as the hotel valet attendant or front desk clerk. The conversations often produce questions Bueno hadn’t considered or they bring a theory to the forefront of her opening statement.
“I realized that, as part of a pretrial ritual going forward, I’m going to step away from my colleagues and all the legal minds, and I’m going to find somebody before trial to have what I call the elevator pitch,” Bueno told The Texas Lawbook in a January interview.
It’s worked well for her. Last year, Bueno led a defense team in a three-week trial that clinched a complete defense verdict for Monsanto against a lawsuit that claimed the weedkiller Roundup caused a woman’s non-Hodgkin’s lymphoma. Bueno also represents Johnson & Johnson in its baby powder litigation.
The following interview has been edited for length and clarity.
What is keeping you busy right now?
Right now, I have a nice mix of cases that are ready to go to trial, that I’m preparing for trial, and that are earlier in the discovery phase. At this point in my career, I’m often hired 60 to 90 days ahead of trial, and I sometimes don’t have the luxury of helping with discovery and case workup and steering themes and all of that. So right now, I’m very happy I’ve got several trials on the calendar this year with clients that I’ve had for a long time, and then I also am involved in some earlier-stage work for some new clients.
What would you point to as some of the biggest trials that you’ve handled?
I think in the last couple of years, the most high-profile cases that I’ve done have been either for Johnson & Johnson or Monsanto, either in talcum powder or Roundup litigation. But I’ve also, historically, done other cases that have been higher profile. I always say, “It’s whatever I’m working on right now which is the most important thing to me and my clients,” so they’re all high profile in my mind.
Are there one or two high-profile public matters you’re currently involved in that we can highlight?
I can tell you that I’m continuing to be involved in the Johnson & Johnson litigation and also the Monsanto litigation. I’ve got trials lined up for those clients this year. And then I am involved in the social media addiction MDL. I don’t think I can tell you quite yet who the client is. There’s a multidistrict litigation, and also a consolidated proceeding out in California, in the Northern District of California, and then also in Los Angeles County. School districts are suing all of the largest social media platforms alleging addiction. So those are in workup stages now, and they’ve been fascinating to work on in the lead-up.
What news developments or trends in law are you particularly keeping an eye on at the moment?
I think the answer is also technology. Most of the conversations I’m having with colleagues now and also clients have to do with new issues in technology and how that impacts litigation. Just to give you an idea: When I started as a trial lawyer, it was very clear to me, generally, what the juries were going to have to answer at the end of trial. Every state is a little different, so you had to understand state nuances. But for the most part, I knew that the juries would likely have to answer certain questions. That is less clear now because these new claims being brought against my clients and others are for things like public nuisance, which was a cause of action that was more traditionally used to apply to premises or noise violations or things that were a nuisance to the public at large, and now they’re being used for things like opioids or video game addiction, social media addiction. Ultra-processed foods are in the crosshairs, and they’re being sued with these nontraditional causes of action, and sometimes we don’t know what the judge will actually instruct the jury. So it adds a different element of uncertainty for both sides in case workup. AI is another example. We are at a very rapidly developing stage of law right now, and oftentimes there’s not case law as there is for different areas. Legal scholars now are having a field day, because it’s a new era in creating law in Texas and elsewhere.
How do you craft a defense in a case where you don’t have any case law?
It’s interesting. You have to figure out opportunities to get to the judge early, to have some of those discussions in advance of discovery, so you know the direction you should head. And then when you’re filing motions closer to trial, try to help the judge understand or craft the law and the jury instructions in the way that you think should apply. Uncertainty can kind of make it exciting, but it’s also really changed the game for some cases.
What is a trial that you weren’t involved in that you wished you had been?
Every time I see a large verdict in the news, like a runaway nuclear verdict, I always think to myself, “I wish I had been there.” And it’s not that I think I could do any better than the defense lawyer, but I think to myself, “What was it that got that jury so angry that they thought a billion-dollar verdict was appropriate?” In my line of work, which is often mass tort cases, there’s multiple trials with the same subject matter, with great lawyering on both sides, similar documents, similar subject matter. And it’s fascinating to me that you can have a defense verdict in one venue and a very large nuclear verdict in the other. Those are the kinds of trials that I’m specifically interested in and try to track down and read transcripts of to better understand how the jury got there. The jury psychology is interesting. I’m a big fan of the Seventh Amendment and the jury process, as you might imagine, being a trial lawyer, so I think they generally get it right. But then when there’s situations like that, when the verdicts are so different, that’s when I think it needs a closer eye to figure out what’s going on.
What is your favorite task to handle at trial?
Without a doubt, opening statement. I think it’s the most important task at trial. Especially for the cases I do that are multiweeks, and I’m on the defense side. If you cannot convince the jury on day one that there’s more to the story and ask them to wait until you get an opportunity to tell that story, it’s really an uphill battle. So I take opening statements seriously. I think it’s important to let the jury really understand how it’s going to play out and ask them to wait to make up their mind. Sometimes I think jurors don’t understand the process as much as they see on TV. When you’re dealing with a six-week trial, they don’t really understand that your case isn’t going to begin for a few weeks.
What’s your least favorite task?
I don’t know if it’s my least favorite, but I always think the hardest thing to do at a trial is something that oftentimes young lawyers think of as the easiest, and that’s a direct examination of a fact witness. These are, without a doubt, the most difficult examinations when you are putting on the witness and you don’t have the control. Cross-examination takes a lot of time to prepare. So in order to do a good cross-examination, you really have to go through and read old transcripts and get yourself all ready and all of that, and it takes a long time. Direct examination takes less time, in some ways, for preparation, but it’s much harder. I always kind of hold my breath until some of those are over, because I find them the most challenging.
How do you celebrate after a trial?
I love to run, and I love trail running, so I often try to find a trail running race or something like that. So after the trial is over, I can kind of pack my bags and get outside and get offline and unplug and run.
If you weren’t a lawyer, what career do you think you would have chosen instead?
Probably along those same lines. I think I’d like to be doing something outdoors, spending as much time as I can on the trails or in the mountains. But to be honest, I’ve wanted to be a lawyer forever, so I’m kind of living my dream.
What am I not asking you that you’d like to share with readers?
I said it earlier, but I am such a proponent of the jury system. I think there are so few countries that still have the right to a civil jury trial, so it’s a special thing in our country. And I think as lawyers we need to protect that and embrace that and support that. It makes me really mad when I hear people saying that we need to take that right away or people say, “These issues are too complicated for civil juries; we need judges to decide them.” And I say, “Wait a minute. This is the greatest system. And it’s our obligation as lawyers to explain these difficult concepts to jurors.” We need to give our jurors the benefit of the doubt, because average Americans who are sitting in the jury box do a really good job almost all the time. So I encourage young lawyers to consider being trial lawyers. I know it’s hard these days to get trial experience, but sometimes when people say to me, “I just can’t get in the courtroom,” I say, “That’s not true. The Travis County Courthouse is open right now, and there are trials going on.” You observe other lawyers, and that’s how you learn.