Kenneth R. Berman

Areas of Concentration

In the business litigation arena, Ken’s broad experience covers complex contract, fraud, and unfair trade practices disputes, internal disputes in companies and partnerships, class actions and derivative suits, 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 work in intra-family disputes includes representing clients in probate court and other courts in disputes over jointly owned property, inherited property, and assets held in trust or family-owned businesses.

Litigation Achievements

Ken’s litigation achievements include:

• defeating at trial a $40 million damage claim for an alleged breach of a contract to buy a manufacturing company; obtaining an order in the same case for recovery of legal fees and expenses incurred in the defense; 
• obtaining a jury verdict for a biotechnology company, holding a competitor and a supplier liable for breach of contract, tortious interference, and misappropriation of trade secrets; obtaining a judgment in the same case for declaratory and injunctive relief, double damages, and a multi-million-dollar legal fee award under Massachusetts’ unfair trade practices statute
• obtaining dismissal of a nationwide consumer class action in federal court by showing that the defendant’s conduct did not violate the rights of the named plaintiff
• obtaining an arbitration award adjudicating that the respondent, who claimed to own the majority controlling interest in a biotechnology company, held only a minority interest
• obtaining a judgment from the Delaware Court of Chancery, and a ruling from the Delaware Supreme Court affirming the judgment, defeating a claim by a former chief executive officer seeking advancement of legal fees to defend a suit for breach of fiduciary duties
• obtaining a judgment, after trial, that preserved a structure under a historic preservation statute over the claims of a developer who sought to remove it
• defeating at trial a multi-million-dollar claim brought by a commercial developer for an alleged breach of an easement agreement
• defeating at trial a multi-million-dollar suit brought by the country’s fifth largest retailer seeking, among other things, to establish certain property rights; obtaining a judgment in a different trial and different court against the same retailer overturning certain regulatory approvals obtained by the retailer that were adverse to the interests of our client
• defeating at trial a suit by a general partner to remove the managing general partners of a real estate limited partnership
• obtaining a multi-million-dollar judgment against one of the country’s largest banking institutions for breach of warranties in the sale of a large portfolio of mortgage loans
• defeating at trial a developer’s claim seeking to compel the sale of a large tract of industrial and residentially zoned land
• obtaining a judgment defeating a spot zoning challenge to the validity of an ordinance that created a specially permitted category for certain institutional uses on large (hundred-acre-or-more) parcels
• obtaining a judgment compelling the issuance of regulatory approvals needed for the construction of a private school
• obtaining a court order for the owner of a golf course and country club eliminating an insurance company’s defenses to coverage
• litigating and securing an eight-figure settlement in an international dispute based on allegations of breach of contract, product defects, misappropriation of intellectual property, corporate espionage, tortious interference, and unfair trade practices
• litigating and securing a seven-figure settlement for a young woman who was injured when a fire escape collapsed
• obtaining a summary judgment against two insurance companies that were adjudicated to have violated their duty to defend  

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.

Related Experience

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 received wide acclaim.

Inspired by the bar’s interest in his approach, Ken wrote 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.” Ken then 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 Litigation Section’s Federal Rules Roadshow.

The next year, Ken co-chaired the ABA Litigation Section's 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’s authorship led the ABA’s Litigation journal, one of the most widely read litigation publications in the country, to invite Ken to be a regular quarterly columnist. Ken’s “On Reconsideration” columns focus on the physiology of legal disputes and present new ways of thinking about how to secure justice and increase a lawyer’s effectiveness. His inaugural column analyzed a bedrock assumption on which the litigation profession is based: “Is an Adversarial Legal System Well Suited for Delivering Justice?”

Ken is also a popular public speaker, offering a number of engaging TED-style talks to audiences around the country: “Why Smart People Give Stupid Testimony”; “Out of the Mouths of Politicians: Making Witnesses Great Again”; “Anatomy of a Cross-Examination Disaster (or Triumph)”; and “Persuasion, Credibility, and the Real Burden of Proof.”

Ken served on the board of editors of the Boston Bar Journal and as a legal commentator for WBZ-TV in Boston. Besides Litigation, in which Ken has been a frequent contributor for over 20 years, Ken’s many articles have appeared in publications such as Litigation News, The Boston Globe, The National Law Journal, 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.

In May 2023, Massachusetts Lawyers Weekly honored Ken as a Lawyer of Excellence for his pro bono work.

Ken is a former member of the Council of the American Bar Association’s Litigation Section. On top of co-chairing the ABA Litigation Section’s Committee on the American Judicial System, Ken is a member of the Section’s Corporate Counsel Committee (which he formerly co-chaired), Business Torts Committee (which he formerly co-chaired), Intellectual Property Committee, Commercial and Business Litigation Committee, and Trial Practice Committee. After the ABA published Ken’s book Reinventing Witness Preparation, Ken served as co-chair of the Litigation Section’s Book Publishing Board.

Ken is also a former member of the Boston Bar Association's Council and Executive Committee and former chair of the Boston Bar's Litigation Section. Ken served as a member and then 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 Law School Trial Advocacy Program and the Harvard Legal Aid Clinic and on the faculty of the National Institute of Trial Advocacy.

Ken is a trustee and vice president of the Massachusetts Law Reform Institute, 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.