By Hon. (Ret.) Ken E. Adair 
A Whisper is Easier to Hear Than a Scream
Video Transcribed: Sometimes when a lawyer is standing in front of me and they’re arguing emotion to me. Sometimes they become animated or they become loud or they become agitated, angry sometimes. And what I found, what was interesting to me is as soon as they got loud and animated and agitated or angry, my ability to hear and understanding process, what they’re telling me, almost completely goes away.
I find myself wondering, “Why are they so angry? This is not that complicated. Just tell me what you want to hear.” And I wonder, “Are they angry at me? Do they think I’m stupid? I’m not going to get it.”
And accept this as true, judges are probably more often than you know, more afraid than anybody in the room. They’re afraid to make a mistake, they’re afraid to get it wrong, they’re afraid to look stupid in the bar journal or in some opinion.
I won more than I lost on appeal as a judge. But I’m telling you, those couple of three times you lose on appeal, it doesn’t feel good. And you don’t like it and judges don’t like it and they’re afraid of that.
So remember, the judge is afraid of looking stupid or making a mistake. And when you’re yelling and raising your voice, it doesn’t make an effective legal argument because the judge is not hearing the substance and logic of the syllogism reasoning of your legal argument. And it’s wasted energy on behalf of the lawyer.
There’s an old saying that says that words that are whispered are heard with much greater clarity than those that are yelled. And that’s actually true. And I would just encourage you and recommend that you remember that.
And if you find yourself getting agitated in front of a judge making an argument, for whatever reason, you may be agitated with opposing counsel. Well that doesn’t help the judge when you’re agitated with opposing counsel, so don’t do it.
If you catch yourself, take a breath. There’s nothing wrong with taking a breath. If you’re talking fast, that’s anxiety, you’re in your chest. You’re in this fight or flight mode and you’re taking these little tiny breaths.
If you’re taking these little tiny breaths and you’re in this fight or flight mode, and you’re not being understood, all the judge sees is your fear and anxiety. Take a deep breath, blow the breath out, and relax, and give your argument to the judge.
Don’t get animated, don’t get loud, don’t get angry. And if you are angry, just learn to conceal it better because it is a huge distraction to your argument. I hope this has been helpful. I thank you for watching, listening, and I look forward to seeing you again.
I’ve sat at the feet and studied with some of the greatest trial lawyers and titans in this country. I’ve learned from some of the members of the inner circle of advocates. You can’t be where I’ve been and studied with who I’ve studied with and shared a courtroom with the people I’ve shared them with for over 20 years and not know a few things about winning successful jury trials. It’s time for me to share what I’ve learned with you. I’m retired judge, Kenneth Adair, and I want to help you be a better trial lawyer for your clients. Learn more at trial.win or subscribe to this channel to get regular updates about my latest trial strategy videos.
