Answers are hugely consequential. In this engaging program, Ken Berman, popular public speaker and author of the ABA best-selling book Reinventing Witness Preparation, teaches his pathbreaking approach to preparing witnesses-markedly different from the conventional approach. Most lawyers prepare their witnesses based on the idea that the less information the witness gives to opposing counsel, the better. Berman shows why that approach puts witnesses on a road to testimonial failure, why brevity is often more harmful than helpful, and how lawyers can prepare their clients so that the answers actually help their cases.
Berman's approach is based on the idea that witnesses need to get their stories out and that the goal of effective preparation is to teach witnesses how to testify in ways that build trust and credibility with the factfinder and support the theme of the case. Between an experienced cross-examiner and the witness, the witness is at a disadvantage. Berman shows how witnesses, if properly prepared, can neutralize that dynamic, avoid the interrogator's traps, and get the upper edge in spheres that matter: content, theme development, style, and likability.
Berman's approach is based on the idea that witnesses need to get their stories out and that the goal of effective preparation is to teach witnesses how to testify in ways that build trust and credibility with the factfinder and support the theme of the case. Between an experienced cross-examiner and the witness, the witness is at a disadvantage. Berman shows how witnesses, if properly prepared, can neutralize that dynamic, avoid the interrogator's traps, and get the upper edge in spheres that matter: content, theme development, style, and likability.
Instructor
KENNETH R. BERMAN co-chairs the business litigation practice group at Nutter McClennen & Fish LLP in Boston, Massachusetts. Mr. Berman represents clients in complex business cases, intellectual property disputes, and real estate and land use litigation. Mr. Berman is also an author, columnist, and public speaker. In addition to authoring Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, he writes a quarterly column for Litigation, the flagship litigation journal of the ABA, where he challenges assumptions and conventional wisdom about litigation and legal disputes, suggesting solutions to things most lawyers are unaware might need fixing. His TED-style talks on witness preparation and persuasion have received wide acclaim from bar groups around the country.Course Content
9:30 am - 9:53 amWitness Preparation the Better Way: Part One - Introduction: Goals of Effective Witness Preparation
Conventional preparation and its shortcomings • How different witness preparation approaches produce different outcomes
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
9:53 am - 10:10 am
Witness Preparation the Better Way: Part Two - The Importance of Fiving the Best Answer the First Time the Question is Asked
Why redirect examination is ineffective to remedy bad answers • Why witnesses should answer deposition questions the same way they should answer them at trial
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
10:10 am - 10:41 am
Witness Preparation the Better Way: Part Three - Preparing the Witness
Phase I: Knowing the witness • Phase II: Working with the witness; Step One: Getting the witness comfortable talking about the case; Step Two: Understanding the case theme; Step Three: Training the witness how to give effective testimony - Specific advice, Practicing testimony, Ethics of coaching; Step Four: Documents
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
10:41 am - 11:00 am
Break
11:00 am - 11:28 am
Witness Preparation the Better Way: Part Four - Common Recurring Special Issues
Yes or No questions: The explanatory answer, Soft yeses and nos, The qualified yes or no, Reframing, Avoiding the devil's bargain • Ambiguous questions: Why 'I don't understand the question' is a bad answer, Reframing • Dealing with weak or imperfect memories: Why 'I don't recall' is a bad answer, Refreshing recollection before testifying or during preparation, What to do if the witness genuinely cannot recall • Questions about preparing for testimony
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
11:28 am - 11:37 am
Witness Preparation the Better Way: Part Five - Testimonial Style
Understanding the difference between substance and style • Understanding the importance of style (verbal and non-verbal) • Avoiding evasiveness: Substantive evasiveness, Stylistic evasiveness
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
11:37 am - 11:54 am
Witness Preparation the Better Way: Part Six - Preparing Experts
Preparing for attacks on credentials • Preparing for attacks on data adequacy • Preparing for attacks on methodology
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
11:54 am - 12:05 pm
Witness Preparation the Better Way: Part Seven - Direct Examination
Cultivating and curating the story
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
12:05 pm - 12:15 pm
'Ask the Experts' Q&A Session
Kenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
Please Note
This webcast is delivered completely online, underscoring their convenience and appeal.
There are no published print materials. All written materials are available electronically only.
They are posted 24 hours prior to the program and can be accessed, downloaded, or printed from your computer.
Speakers
FacultyKenneth R. Berman, Esq.,
Nutter McClennen & Fish LLP, Boston
