REINVENTING WITNESS PREPARATION
Unlocking the Secrets to Testimonial Success
KENNETH R. BERMAN
Changing the game.
Raising the bar.
Reinventing Witness Preparation, now an American Bar Association best-seller, challenges all the orthodox assumptions about how witnesses are supposed to testify and presents a compelling, in-depth analysis of why the conventional approach to witness preparation so often generates losing testimony.
Reinventing Witness Preparation teaches a far more thoughtful approach and showcases the philosophy and techniques that drive the author's forward-thinking witness preparation methods, developed and honed through years of litigating complex cases, and designed to empower witnesses to give their best truthful testimony.
Kenneth Berman’s Reinventing Witness Preparation challenges conventional thinking and upsets orthodoxy by providing a new template for one of the most important aspects of law practice. Every litigator needs to read, and learn from, this outstanding book.
Steven Lubet, Author, Lawyers’ Poker: Fifty-Two Lessons that Lawyers Can Learn from Card Players; Williams Memorial Professor; Director, Bartlit Center for Trial Advocacy; Northwestern Pritzker School of Law
Reinventing Witness Preparation by Kenneth Berman is a valuable addition to every litigator’s bookshelf and should be required reading before your next deposition or trial. Berman makes and illustrates his case thoroughly and thoughtfully.
Thomas A. Mauet, Author, Trial Techniques and Trials; Milton O. Riepe Professor of Law, James E. Rogers College of Law, University of Arizona
In Ken Berman’s innovative book, the lawyer has at least as much to learn in the course of witness preparation as the witness does. This book synthesizes common sense and radical revision of the “way we've always done it”—providing indispensable tools to help lawyers and witnesses deliver their best.
Laurence Pulgram, Former Chair, ABA Section of Litigation; Partner, Fenwick & West LLP, San Francisco, CA
Ken Berman’s outstanding new book will be the “go to” reference for witness preparation for years to come.
Palmer G. Vance II, Chair, ABA Section of Litigation; Member, Stoll Keenon Ogden, PLLC, Lexington, KY
If you have come to doubt the wisdom or effectiveness of the standard model of witness preparation or even if you are devotedly committed to it, you owe it to yourself to read and learn from Reinventing Witness Preparation.
Edna Selan Epstein, Author, The Attorney Client Privilege and the Work-Product Doctrine
[A] great book. . . . [A]ny litigator, client representative, or consultant who regularly meets to prepare witnesses owes it to themselves and their clients to buy, read, and use this book.
Ken Broda-Bahm, Ph.D., Senior Litigation Consultant, Persuasion Strategies, Denver, CO
In Kenneth R. Berman’s seminal new book. . . , the clear lesson is to use what Berman labels the “enlightened approach” early on. . . . Berman’s advice makes sense. . . . Berman bolsters his advice with citations to cutting edge research. . . . The usefulness of this enlightened approach is illustrated by Berman’s assessment of Erin Andrews's performance under cross-examination: “She answered the questions the way her lawyer would have answered them if the lawyer could have testified in her place."
The Honorable Mark A. Drummond, Litigation News Associate Editor
About the Author
Kenneth Berman is revolutionizing how lawyers prepare their witnesses for examination. A seasoned litigator, an accomplished writer, and an engaging speaker sought after by bar groups and other organizations, he has been educating lawyers and expert witnesses around the country on new, winning approaches for witness preparation.
Berman is a leader of the American Bar Association’s Section of Litigation. He has served on its governing council and has chaired numerous Section committees, conferences, and seminars. For over 20 years, Litigation, the Section's flagship journal, has featured his highly acclaimed articles on advanced litigation techniques. He has also served as chair of the Litigation Section of the Boston Bar Association. Based in Boston, Massachusetts, Berman runs an active litigation and trial practice, and is a partner and co-chair of the Business Litigation Practice at Nutter, McClennen & Fish LLP.
In practice, the standard instructions often do an excellent job of taking away a witness’s confidence and replacing it with a set of counterintuitive directions that are difficult to apply, particularly during periods of high stress, such as when being interrogated. Witnesses can become so afraid of saying the wrong thing that they fail to say the right thing. The instructions channel the witness into giving abbreviated answers that can leave misleading impressions in their wake and leave witnesses wishing they had answered differently.
Nonetheless, conventionalists might defend the instructions on the basis that perfection can never be achieved, that it would be better to condition a witness to say too little than too much, and that if a witness flubs an answer or gets in trouble for following the directions, redemption will come when the witness’s lawyer follows up with her own questions and gets a chance to rehabilitate the witness. That, after all, is the conventional wisdom. But that is also why smart people give bad testimony.
Listening to one’s client being cross-examined is no cakewalk. It’s hard work, multitasking in the extreme. It requires channeling all powers of concentration into each question and each answer. Each question and answer requires multiple levels of analysis, making a number of decisions and finally answering the following: Did the witness just say something I need to fix? Do I know enough to know what questions I can safely ask to fix it? Think how much easier this multitasking would be if a witness could minimize the number of bad answers that need to be corrected on redirect.
Good witness preparation is an ounce of prevention. Redirect is a pound of cure. Redirect is the time for the lawyer to make repairs, to rehabilitate the witness, to undo the damage opposing counsel did on cross. If a lawyer needs to conduct redirect, it means the witness has been injured. Wouldn’t it be much better to prevent the injury in the first place and make redirect unnecessary? For that to happen, the witness needs to give the best answer to the question the first time the question is asked. This should be the goal of good witness preparation.
Orthodoxy is why lawyers advise their own clients that, when opposing counsel is asking the question, answer only that question and do not volunteer information. They have been trained to believe that explanations open doors for opposing counsel, create impeachment opportunities, and get the witness into trouble. They believe it is safer for clients to give explanations only to their own counsel, even though opposing counsel will still have the chance to probe into the explanation regardless of to whom it is given. They believe that they know the case better than their client does and that they will lose control if the client volunteers explanations to opposing counsel.
These beliefs, of course, are just folklore. The client always knows the explanation. The client’s lawyer might or might not, and if not, the lawyer has no way of deciding whether the explanation should be given. If the explanation should be given and the lawyer is not in a position to make that decision, the explanation will never come out and the client will be hurt. Contrary to what the lawyer might believe, a properly prepared client can be very well positioned to decide, on the spot, whether to volunteer an explanation, using her intuition and judgment, her understanding of the facts and issues, and her sense of whether the failure to volunteer will leave a misleading impression or permit the opposing counsel to take her words and put them into a narrative where they do not belong.
A witness’s memory, even if weak, may contain an important enough nugget of helpful truth to make that memory not simply worthwhile but essential. That weak memory might be the only place where that truth resides. It might be the only source from which that truth can be converted from an unspoken fact into actual evidence. But if the witness is conditioned to say “I don’t recall” because of how the witness’s own lawyer has built up “I don’t recall” as a safe cross-examination or deposition answer, then the witness is tossing that helpful truth into the garbage bin. A witness-preparation approach that converts a helpful truth into garbage instead of into evidence is seldom a wise strategy.
© 2018 Kenneth R. Berman. All rights reserved.