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Why Smart People Give Stupid Testimony

Level: Advanced
Runtime: 62 minutes
Recorded Date: September 05, 2018
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  • Reinventing Witness Preparation
  • The Standard Instructions
  • Losing Credibility
  • Better Answers
  • Depositions
  • Preparing a Witness
  • Redirect as a Cure
Runtime: 1 hour and 2 minutes
Recorded: September 5, 2018


In this dynamic webinar, Berman, author of the recently released and highly acclaimed ABA book Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, will debunk the time-worn orthodox assumptions about witness preparation, discuss why the conventional preparation approach so often generates losing testimony, and showcase a far more thoughtful and transformative approach to preparing witnesses, designed to empower witnesses to give their best truthful testimony the first time the question is asked.

This program was recorded on September 5th, 2018.

Provided By

American Bar Association
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Gregory C. Cook

Balch & Bingham LLP

Greg Cook’s practice centers on financial services and commercial litigation, including class action and complex litigation. He serves as the chair of Balch’s Financial Services Litigation Practice, where he has practiced since 1991. He has defended over 60 class actions, handled over 250 real estate and mortgage matters, and he is a part of over 40 reported opinions. Our class action practice recently received a Tier 1 ranking nationally by Best Lawyers. Greg is a frequent writer and speaker on these topics. He served for three years as co-chair of the ABA Class Action & Derivative Suits Committee and as the immediate past chair of the Business Torts and Antitrust Section of the Alabama State Bar. He is a member of the Alabama Supreme Court's Standing Committee on the Rules of Civil Procedure and is the update editor of a treatise on The Rules. Greg was also recently named a BTI Client Service All-Star.

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Kenneth Berman

Nutter, McClennen & Fish, LLP

Kenneth R. Berman is a partner in Nutter’s Litigation Department. He co-chairs the firm’s Business Litigation Practice Group and chairs the firm’s Pro Bono Committee. Ken is a seasoned litigator representing clients in complex business cases, intellectual property disputes, and real estate and land use litigation. He is also the author of the acclaimed American Bar Association book Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, which explains the dangers of conventional witness preparation and introduces a new and enlightened approach, a paradigm shift from how lawyers have historically prepared their clients and witnesses to testify.

In the business litigation arena, Ken’s broad experience covers complex contract, fraud, and unfair trade practices disputes, internal disputes in companies and partnerships, fiduciary duty claims, insurance coverage disputes, litigation over product integrity issues, non-competition and non-solicitation disputes, litigation over the sale of goods and supply chain issues, and other business disputes.

In the patent infringement, copyright, trademark, and trade secret arena, Ken has represented manufacturers, sellers, and inventors of technologies such as laser scanning devices that create medical images of coronary arteries, explosive detection equipment used in airport security, bone density measurement devices used in the detection of osteoporosis, port-catheter devices used in the intravenous transmission of chemotherapy, proprietary grass seed that produces low maintenance lawns, and plastic cards used to facilitate retail transactions.

In the real estate and land use area, Ken has represented property owners and developers in zoning and subdivision litigation, easement disputes, commercial lease and land purchase disputes, construction litigation, historic preservation litigation, and land title litigation over a wide spectrum of real estate including shopping centers, office towers, condominium and other large multi-family properties, residential and commercial subdivisions, institutional uses, recreational properties, and undeveloped land.

Ken’s expertise also includes advising clients and litigating disputes on transactions involving the sale of goods, both domestically under the Uniform Commercial Code and internationally under the United Nations Convention on Contracts for the International Sale of Goods (CISG). Ken attended the International Seminar on the Application and Interpretation of the CISG in Member States, an academic conference sponsored by the United Nations and other prominent organizations held at Wuhan University School of Law in Wuhan, China, at which the world’s leading scholars on the CISG from over a dozen countries and four continents spoke and presented papers on a wide range of complex issues between buyers and sellers in international sales transactions.

Ken’s clients benefit from his recognized thought leadership in the area of witness preparation. His pathbreaking article in Litigation, entitled “Reinventing Witness Preparation,” exposed serious flaws, fallacies, and hazards in how litigators historically prepare witnesses for depositions and cross examination. Ken’s article offered a new approach that has received wide acclaim.

Inspired by the bar’s interest in his approach, Ken has come out with a highly praised book that explores this critical aspect of law practice in depth: Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, published by the American Bar Association. Ken is a sought-after speaker on the subject, having spoken on his cutting-edge witness preparation methods to bar groups and organizations around the country.

Ken’s work in the witness preparation area complements his frequent writing and speaking for local and national audiences on topics of current legal interest, high profile litigation, and advanced litigation techniques. After the Supreme Court approved game-changing amendments to the Federal Rules of Civil Procedure in December 2015, Ken wrote the signature analysis of the rule changes in Litigation in his article, “Reinventing Discovery Under the New Federal Rules.” Thereafter, Ken spoke on the subject with federal judges in a national webinar, at the Maine Federal Judicial Conference, and in the Boston presentation of the ABA Section of Litigation Federal Rules Roadshow.

The following year, Ken co-chaired the ABA Section of Litigation Precision Advocacy Roadshow, in which Ken worked with the director of the Federal Judicial Center and the chair of the Federal Advisory Committee on Civil Rules to present a national program in a dozen cities featuring panels of federal judges and leading litigators to educate the bar on ways of making motion practice more efficient and effective.

Ken served on the board of editors of the Boston Bar Journal and as a legal commentator for WBZ-TV in Boston. Ken’s numerous articles have appeared in publications such as The Boston Globe, The National Law Journal, Litigation (the Journal of the Section of Litigation of the American Bar Association), Practical Litigator, the Boston Business Journal, the Boston Bar Journal, and Mass High Tech. He is also a contributing author of The Litigation Manual Depositions, published by the American Bar Association.

Annually since 2004 when the distinction was first conferred, Ken has been selected for the Massachusetts Super Lawyers list, in which no more than five percent of lawyers in the state were selected. Ken has also been recognized in Corporate Counsel Super Lawyers (2009, 2010), Super Lawyers Business Edition (2011, 2013-2015), and Chambers USA as a leading litigation attorney (2007-2012). Ken is also listed in Best Lawyers in America for Commercial Litigation.

For his pro bono work in protecting the privacy and first amendment rights of adult students with reading and writing disabilities and of their teachers, Ken received a special recognition award from the Literacy Volunteers of Massachusetts.

Ken currently serves as a member of the Council of the American Bar Association’s Section of Litigation. He is a member and former co-chair of the ABA Section of Litigation Corporate Counsel Committee and Business Torts Committee, and a member of the Section’s Intellectual Property Committee, Commercial and Business Litigation Committee, and Trial Practice Committee. He is a former member of the Boston Bar Association's Council and Executive Committee, and a member and former chair of the Boston Bar's Litigation Section. Ken is a former member and chair of the Joint Bar Committee on Judicial Nominations, which reviews, evaluates, and makes recommendations on the qualifications of individuals under consideration for judicial appointments in Massachusetts. Ken has served as an advisor in the Harvard Trial Advocacy Program and the Harvard Legal Aid Clinic.

Ken is a director and vice president of the Massachusetts Law Reform Institute, Inc., the Massachusetts statewide poverty law center. His other civic involvement includes having served as an officer and board member of the Association of Yale Alumni, and as a trustee and officer of the Meadowbrook School of Weston. During law school, Ken was an editor of the Connecticut Law Review.

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