Kenneth Berman, Nutter McClennen & Fish LLP Photo

Kenneth R. Berman

Partner / Boston


Kenneth R. Berman is a partner in Nutter’s Litigation Department. Ken is a seasoned litigator representing clients in complex business cases, intellectual property disputes, intra-company and intra-family disputes, and real estate and land use litigation. He also co-chairs the firm’s Pro Bono Committee.

Along with his active litigation practice, Ken is a leader in the American Bar Association’s Litigation Section, where he currently co-chairs the Committee on the American Judicial System. Ken is also a popular author, columnist, and public speaker. He authored the acclaimed American Bar Association book Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success, which explains the dangers of conventional witness preparation and teaches a transformative approach on how lawyers should work with witnesses to help them achieve a higher level of testimonial performance. Ken writes a regular quarterly column for Litigation, the flagship litigation journal of the American Bar Association. His column, published under the banner “On Reconsideration,” challenges time-honored assumptions and conventional wisdom about litigation tradecraft, legal disputes, and the justice system and suggests innovative solutions to things most lawyers and judges are unaware might need fixing.

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:

  • 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 GlobeThe National Law JournalPractical 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.



  • Litigation over the sale of a multi-million dollar property in Chatham

    Nutter recently secured a victory in the Massachusetts Appeals Court in an opinion that upheld the granting of a special motion to dismiss a suit that sought to enforce an alleged contract for the sale of a multi-million dollar water-view property in Chatham. The Appeals Court also ruled that the property owner was entitled to recover its appellate legal fees from the plaintiffs. The plaintiffs’ complaint alleged that the defendants’ failure to countersign the plaintiffs’ written purchase offer breached a promise that had been made by the defendants’ local attorney and real estate broker, and that the defendants became legally obligated to sell the property when the plaintiffs submitted a signed written offer and tendered a deposit check. On appeal, the plaintiffs changed their theory and claimed that an email from the defendants to their real estate broker discussing terms that the defendants wished to see in any deal could be combined with the plaintiffs’ later purchase offer to create a contract and satisfy the writing requirement of the statute of frauds. The Appeals Court rejected the theory, affirmed the lower court decision granting the defendants’ special motion to dismiss the case, and ruled that the plaintiffs would have to pay the defendants’ legal fees on appeal. The key holding was that, even though the unsigned form of the purchase offer came from the defendants’ attorney, it always remained an offer to purchase that the defendants were free to accept or reject, and that it was never an offer to sell. 

  • Won jury verdict in a major business torts case

    After a client’s competitor acquired a client’s exclusive supplier and threatened to terminate the client’s supply of a key component, we sued the competitor and supplier. In a month-long trial, we obtained a jury verdict holding the competitor and a supplier liable for breach of contract, tortious interference, and misappropriation of trade secrets, ultimately leading to a favorable judgment for declaratory and injunctive relief, double damages, and a multimillion dollar legal fee award under Massachusetts’s unfair trade practices statute.

  • Obtained eight figure settlement in major business torts litigation over supply chain interference and corporate espionage

    On behalf of our client, we sued a large importer of our client’s products, alleging that the importer wrongfully refused to pay for goods purchased, engaged in corporate espionage, and interfered with our client’s relationships with key employees and companies in our client’s supply chain. The importer countersued, claiming that our client’s products were defective. The litigation was based in the United States, but involved parties in four countries and two continents, raising complex issues under domestic and foreign law, as well as under a United Nations commercial treaty. In a mediated settlement, we resolved the case on advantageous terms, including obtaining an eight figure settlement from the defendant.

  • Obtained favorable settlement on patent infringement claims

    Our client was sued for allegedly infringing a patent pertaining to the method by which our client’s product was packaged. Though the client denied any infringement, the client was able to settle the matter on favorable terms, including an advantageous license arrangement.

  • Won judgments in complex real estate litigation after related jury-waived trials in two courts

    One of the country’s largest retailers sued our client for millions of dollars in alleged damages and for an injunction based on a claimed breach of an easement agreement. After a jury-waived trial, we obtained a judgment dismissing the case. The court credited our client’s interpretation of the agreement and found there was no breach. In a related case, our client sued the retailer and a local permitting authority in a different court to overturn a decision that granted the retailer a permit to develop its property in a manner that would have been detrimental to our client’s adjoining property. After a jury waived trial, we obtained a judgment overturning the permit on the ground that the permitting authority abused its discretion. The combination of these two decisions later enabled the client to make an advantageous sale of its property to a third party.

News & Insights


Speaking Engagements




  • Chambers and Partners, Leading U.S. Litigation Attorneys, 2007-2012
  • Massachusetts Lawyers Weekly, Excellence in Pro Bono, 2023
  • Super Lawyers, Corporate Counsel Edition, 2009-2010
  • Massachusetts Super Lawyers, 2004-2023
  • Super Lawyers Business Edition, 2011, 2013-2015
  • The Best Lawyers in America, 2016-2024

Education & Admissions


University of Connecticut School of Law, J.D., high honors
Yale University, B.A.


  • U.S. Supreme Court
  • U.S. Court of Appeals for the First Circuit
  • U.S. Court of Appeals for the Fourth Circut 
  • U.S. Court of Appeals for the Federal Circut
  • U.S. District Court for the District of Massachusetts
  • U.S. District Court for the Eastern District of Michigan
  • Massachusetts, All State Courts

Industry Expertise

Ken frequently writes and lectures for local and national audiences on topics of current legal interest, high profile litigation, and advanced litigation techniques. He served on the Board of Editors of the Boston Bar Journal and as a legal commentator for WBZ-TV in Boston.


  • Chambers and Partners, Leading U.S. Litigation Attorneys, 2007-2012
  • Massachusetts Lawyers Weekly, Excellence in Pro Bono, 2023
  • Super Lawyers, Corporate Counsel Edition, 2009-2010
  • Massachusetts Super Lawyers, 2004-2023
  • Super Lawyers Business Edition, 2011, 2013-2015
  • The Best Lawyers in America, 2016-2024
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