Stephanie Francis Ward: Great trial lawyers should be great storytellers, but how do you remember everything you need to and look confident while doing it?
Billy Martin: I still stand in front of my mirror and talk and practice my closing argument days before I have to give it.
Stephanie Francis Ward: I’m Stephanie Francis Ward, and today I’m speaking with Billy Martin. He’s a high-profile Washington, D.C., lawyer and a veteran of more than 150 jury trials. When we return, Billy will share some tips with us about how to remain confident and be persuasive without relying on notes.
Advertiser: This ABA Journal Podcast is brought to you by Westlaw Next. Folder sharing in Westlaw Next enables you to tap into previous research across organizational boundaries like never before, saving you time from reinventing the wheel. Learn more at westlawnext.com.
Stephanie Francis Ward: I’ve heard that occasionally, Billy, a lawyer might read his or her closing statement or other parts of their trial. I’m going to assume that you don’t do that. Am I correct?
Billy Martin: Oh, you’re absolutely correct.
Stephanie Francis Ward: OK. How do you remember what you’re going to say?
Billy Martin: Some people may have photographic memories, but I think that the key is preparation. I begin learning my case and what I want to say to a jury long before I step into that courtroom. It’s a story, and how do you tell that story to a jury without them thinking that you’re reading a book?
So my key was: First, even if you type it out, type it out in bullet points. Type it out in phrases. Type it out in just words, so that if you have an outline and you’re going through your outline, you’re able to occasionally glance down and recapture your thoughts if you should lose them. So it’s like a crutch. Take a crutch in there, but don’t use it until you really need to.
Stephanie Francis Ward: Is it kind of like if you were going to—if you know the case so well, you could have lunch with a friend and tell them about it succinctly just from the top of your head? Is that sort of where you want to be keeping in mind that also, of course, you have to preserve the appeal?
Billy Martin: That is exactly the way I do it. When I try a case before a jury, I will walk out to the jury and begin talking to them as though I were speaking to a colleague, or if I were speaking to a judge without a jury.
You want them to feel that you have such control of the facts and the law of your case that when you’re talking to them, you’re not just sharing thoughts with them; that you are actually telling them what the facts and the law are. And your hope is that they accept what it is that you’re telling them.
Stephanie Francis Ward: And you mentioned the outline with bullet points. Is that something that you spend—even though you know the facts of your case by the time it’s ready to go to trial, do you spend a lot of time just reading that outline?
Billy Martin: I read that outline of mine up until the point the jury is in the box, and I’m going through closing arguments, so absolutely. If you can learn the contents, if you—even if you write it out—and I do write my closing argument out so that I can tell the story in my own mind, my mind’s eye. I see the story, so I write it out.
And then after I write it out and I have almost memorized it, I go back and put it in an outline form. And if I should ever feel as though I’ve missed something, or to have the jury believe and have the jury feel that I’m so well-prepared, I will oftentimes go back to my notes and let the jury see me looking at my notes, even though I don’t need those notes.
But I want the jury to feel that I’m not shooting from the hip. I’m not trying to just say what’s on my mind, but this is a well-thought-out and well-prepared exchange with them. So occasionally, I will go back, because I think the jury understands. They’ve heard a lot, and having notes does not offend them. So I do let them see me occasionally go back to my notes.
Stephanie Francis Ward: Can you give me an example?
Billy Martin: Absolutely. What I would say is, “Ladies and gentlemen”—by way of example—“Ladies and gentlemen, this is a security trial case, and you heard the amounts of money involved.” And I’ll go back, and I’ll pull out a note and just let them look at it. And I think that will help a jury feel as though this is not just some made-up number.
“This is the number that we heard in the trial, and you can confirm it. On Tuesday, you heard Witness X tell you that there were $10 million at issue here.” And you’ll see them start nodding, so occasionally I think it is good for a juror to see counsel going back and referring to their notes.
I will also when I’m trying a case if I have co-counsel, I’ll go to my co-counsel, and I may have the jury look to say, “Excuse me. Let me check that fact.” And I know the fact, but I want the juror to say, “He’s checked it. That is actually the facts of this case. Those are the facts of this case.”
So there are a lot of—it’s a lot of style, but the whole key when we begin—what I normally say when I provide talks on trial practice, my whole theme is “preparation, preparation, preparation.” And you want the jury to really believe that you are so well-prepared and so confident in your facts that that preparation and confidence is shared with the jury, and they pick up on that confidence.
Stephanie Francis Ward: Do you have advice about things one can do—sometimes when you’re making sure you preserve the appeal, it might put the lawyer in an uncomfortable spot. How can you make sure—thinking on your feet to preserve the appeal and not appearing flustered when you do it in front of a jury, what’s your advice on that?
Billy Martin: Well, I think what I do is you start perfecting that appeal during the trial. And the issues that you are making, you go through, and you make your record. You understand what the issues are at trial that maybe—it may create an appellate record for you. So you preserve those at trial with the court.
And for the jury, I think what you really want to do in closing arguments is not make anything that you do in your closing argument any potential for an appeal, because that’s problematic for you.
But if you have made your record with the judge up to that point, I don’t worry about my appellate record in closing arguments except that that’s the time that counsel may make a mistake. And your mistakes may become ineffective-assistance issues or malpractice or any mistakes in what you say, so you want to be very careful in how you argue in closing argument. But your record should have been perfected before you began closing arguments.
Stephanie Francis Ward: What if a surprise comes up? It seems like if you’re well-prepared, you can try to avoid surprised. But I’m going to assume that’s not always possible.
Billy Martin: One of my associates at my firm was trying her first case with me, and we had hired a private investigator to go out to take a picture of the home of a witness.
And our theory was that he’s living in this multimillion dollar home, and the jury should know that this is—he’s not claiming—that money is not an issue and that he’s been given money by witnesses. And he is unemployed. And so the whole theme was, “look at this man who’s unemployed living in this multimillion dollar home.”
Well, the investigator goes out, and he takes a picture of the home. And on the witness stand, I have the witness. And I say, “Tell the jury, how are you able to afford this multimillion dollar home?”
And the man looks at the picture on the screen in the courtroom, and he says, “That’s not my house.”
So that is the ultimate surprise.
Stephanie Francis Ward: Yeah. What did you do?
Billy Martin: What I did is I looked at him, and I said, “That house is identical to yours, isn’t it? You live next door to that house?” “Yes, I do.” “And does that house look identical to yours?” And he said, “Yes, it does.” And I moved on quickly. That was the safest process.
But the whole key is not to allow the jury—you are going to be surprised, and you have to learn how to think on your feet.
Stephanie Francis Ward: I do think a big part of that is confidence because I think some people would be like, “Oh crud!” And they’d start to stammer. But you have to confidently say, “Well, does your house look like that?”
Billy Martin: Yep.
Stephanie Francis Ward: And move on. Yeah.
Billy Martin: The whole key is confidence. The whole key is not—the commercials where you hear them say “don’t let them see you sweat”?
Stephanie Francis Ward: Yes.
Billy Martin: The whole key is not to let the jury see that this is a mistake. You can say, “That house looks just like yours, doesn’t it? They’re all the same house. Does your house cost $2.5 million?” “Yes, sir.” And then move on.
You have to learn to take one—it’s like a blow to the solar plexus. Take it. Catch your breath, but don’t let the jury see you kind of flustered.
Stephanie Francis Ward: And on that note, have you seen some times where lawyers might get too emotional in trial? I don’t mean as part of their presentation, because they do get upset about that. And how can you control that?
Billy Martin: It’s very difficult, and I think it’s only experience that helps you really overcome that. But even—I’ve seen lawyers who’ve been trying cases 20, 30, 40 years who will get flustered.
The whole key is to remember the jury is watching you. The jury takes its clues on when to laugh sometimes and when to feel the pain for your client or to feel some disdain for your adversary. So they’re really following you.
If they see that you’re flustered, if they see that you are confused, they lose confidence in you. So the whole key is to put a trial mask on, which is not your face, which is why it’s difficult for your emotion to come through at all times.
You pick key moments to let them feel that you are outraged, or you are excited or happy for something that your client has done or you want them to believe your client has done. But normally, you have to pull yourself back, and your emotions should be removed from that trial—except when it will make a difference and benefit your client.
Stephanie Francis Ward: How do you decide which trial mask to put on?
Billy Martin: Very good question, because the trial mask that I think of is totally contingent upon the jurors who are seated in the jury box. Living here in Washington, we sometimes have two, three, four lawyers in a jury box if it’s a federal trial. I might have four lawyers sitting there, and the same mask that I might wear in Chicago would not work before this jury.
And we use a lot of jury consultants to kind of tell us—first, the type of juror that we would want, the model juror; the type of jurors that we do have in this case; and what is the message or theme that might resonate with this particular jury. So the mask is totally contingent upon the jury that you selected.
Stephanie Francis Ward: You mentioned the number of people at the table. And I’m curious because I do think some people might think, “Well, if I can bring a lot of people with me, that’s going to make me seem like I’m a more powerful lawyer.” But I’m not really sure that’s the case.
But I’m curious if your experience where you went from a large firm to being at your own firm, you probably—I’m going to guess, maybe you never did—but you probably don’t put, like, 10 associates on a case.
Billy Martin: I wouldn’t.
Stephanie Francis Ward: Right?
Billy Martin: I would never—I may have 10 associates on a case, but I would never have 10 people in the courtroom with me. And the reason for that is you do not want the jury to believe that your client has so much wealth or so much money that they can buy their freedom or they can buy the outcome of the case.
So even though—and I usually try to have one lawyer at the table with me. Now, there may be other lawyers seated throughout the courtroom. And even when I want to—if I have an associate who has worked on some of the cases—we do white-collar investigations, and a lot of foreign corrupt practice issues. So you, clearly, you need a lot of people who are examining documents.
So if one of the people is in the courtroom, I may have my co-counsel—I’ll give them a note and ask them to step out, take the associate out in the hallway, get the answer. So the jury really only sees two of us communicating.
Stephanie Francis Ward: And I’m curious if you come across an opposing counsel who seems kind of stiff and uncomfortable in the courtroom, is that kind of an indicator that he or she is going to be easy to roll or not necessarily? Can those people be sleeping lions and very hard to beat?
Billy Martin: Well, they could be all of the above. And if they are too stiff and you were too fluid, the jury could feel sorry for your opponent. So I think you want to—it’s a fine line that you have to weave to make your case without putting down your adversary.
So I try to find a way—if my client is not a gift in the courtroom, I really try and find a way to distance myself and let the jury see my style of lawyering versus the other style.
But you don’t want to be mean-spirited about it. You don’t want to mock the other lawyer. But you can show that we know what we’re talking about without telling them we know what we’re talking about, and opposing counsel does not.
There are also times that I may say to—if I find counsel making a mistake and I get a chance, I would say, “Ladies and gentlemen, counsel is wrong. Do you remember the witness actually said the following? So if he’s wrong or she’s wrong about those facts, can they be wrong about other things?”
So you can use that to your benefit, but it’s a double-edged sword. You should be very careful if you go after opposing counsel.
Stephanie Francis Ward: OK. And it sounds like sometimes maybe you have to appear not as good as you are?
Billy Martin: Sometimes you have to appear not as good as you are, absolutely.
Stephanie Francis Ward: I guess that’s a problem not everyone has but -
Billy Martin: Absolutely.
Stephanie Francis Ward: OK. Well, that’s everything I wanted to ask you today. Did you want to add anything else?
Billy Martin: No. I would just say that I think the key to real effective litigation is a word you used on one of your questions is “confidence.” And if you have to stand in front of that mirror—when I mention that I’ve been doing this for almost 40 years, I still stand in front of my mirror and talk and practice my closing argument days before I have to give it.
So get used to talking, so that you feel comfortable and that when you walk into that courtroom, you feel as though “I’ve done this before. I have been here, and I’m ready.” And for the new lawyers, everybody makes mistakes in those first few cases. Learn from your mistakes, and benefit from it.
Stephanie Francis Ward: OK. Thank you so much for your time. I appreciate it.
Billy Martin: Stephanie, thank you, and good luck to you.
Advertiser: This ABA Journal Podcast is brought to you by Westlaw Next powered by WestSearch, the world’s most advanced legal search engine delivering the best results in seconds. Learn more at westlawnext.com.
End of transcript.
Updated on May 8 to add the transcript.