Giving The Best Answer The First Time: Berman’s Reinventing Witness Preparation
“A bird doesn’t sing because it has an answer, it sings because it has a song.”
— Maya Angelou
Advocacy in a divorce law firm and family law firm involves singing a song that resonates with the trier of fact. For witness examinations—direct and cross—advocacy requires us to help our witnesses hit all the right notes. And that requires us to prepare our divorce and family law witnesses.
This book review provides a summary of Reinventing Witness Preparation, an exposé on the failings of traditional witness preparation and the benefits of a more modern, enlightened approach, which can be applied to all divorce and family law firms. Kenneth R. Berman’s goal focuses on being proactive rather than reactive and on delivering the divorce and family law client’s core message—the song—rather than avoiding any responsive information—gagging the witness. That goal leads to Berman’s theme: giving the best answer the first time.
Better preparation in your divorce law firm cases delivers better outcomes. “How you prepare your clients will make the difference in how they answer [deposition and trial questions], and how they answer them is critical to whether they win or lose.” Berman wants lawyers to teach the divorce and family law witness how to use what he or she already knows about communication and, by doing so, gain an advantage.
The traditional approach emphasizes teaching the divorce and family law witness new skills in an awkward dance to avoid delivering any meaningful information. That’s hard. Picking up from where this particular witness is at and moving forward is simpler in your divorce law cases as well as your family law cases. It “gives witnesses the skill, confidence and frame of mind to answer the questions in ways that will help their cases, develop their case themes, and get their stories out.”
DIVORCE AND FAMILY LAW CASES
Since most divorce and family law cases settle, persuasion before trial can be a more important influence on the outcome than a nuanced performance for a trial that never happens. Empowering the divorce and family law witness will add confidence and aid performance, whether in a deposition or at a divorce or child support trial. “Witnesses need to give answers that actually help their cases, and the best time to give the best answer is when the question is first asked, whether on direct, on cross, or in deposition.”
Traditional divorce and family law witness preparation often involves taking a witness’s established conversational skills, turning them inside out, and imposing a fear of giving one bad answer. That fear funnels the witness into a path of saying virtually nothing and often failing to say the right thin, which can kill your divorce and family law case. Berman’s advice? Give the best answer the first time. “By offering the explanation when the question is first asked, it bolsters the witness’ credibility. Spontaneity is more believable than something that seems like an after-the-fact orchestration between the witness and the lawyer.”
Berman has an abiding faith in the divorce and family law witness as a human being. He is confident that the person has answered numerous questions in the course of daily life, regularly clarifying and instinctively answering with “common conversational courtesy.”, which should attempt to be duplicated in a divorce trial or a child custody trial. “[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.”
The triers of fact are in a state of constant evaluation in search of the story. They have a job to do and have no interest in games, wasting their time, hiding or misleading or spinning or otherwise insults to their intelligence. They are pleased when a family court attorney helps make their job easier. A properly prepared witness can take control, winning their own divorce or family law case.
Berman shows three key advantages of what he calls the enlightened approach. First, it empowers the divorce and family law witness to give answers that actually help tell the witness’ story. Second, it promotes getting facts on the table as an aid to understanding, something the factfinder embraces. And third, it enables the witness to manage and control his or her testimony in a divorce or family law case.
Reinventing Witness Preparation is 250 pages of principles and examples, spread across 18 chapters. There is no index and no appendix or forms. Berman is a litigation partner in Boston Massachusetts and a regular contributor to litigation section journals in the local, state and American bar associations.
Chapter 9, knowing and preparing your witness, includes detailed texts demonstrating the enlightened approach in practice for your divorce law firm. Those demonstration examples continue in other chapters that address particular types of questions and problems witnesses encounter in divorce and family law trials. Berman uses the Tom Brady deflate gate incident to demonstrate the importance of having a theory of the case and a theme, as well as ensuring the witness understands and can communicate that core message in order to help win their divorce and family law case.
So sing. Sing a song, sing out loud, sing out strong. And help your witnesses sing the winning song that wins the divorce or family law case.
K. Berman, Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success (2018 American Bar Association). $64.95.
