On Christmas Eve 1998, Leonard H. Kesten received a package even the most masochistic attorney would not wish for: seven boxes full of discovery documents.
The Boston attorney was defending the Town of Mendon in a sex-harassment case brought by a police lieutenant and other members of the Mendon Police Department.
Kesten tried to settle the case — offering $300,000 to the plaintiff’s during a mediation — but the talks broke down, leaving the police department in limbo and the town stranded in a difficult and complicated case.
That’s when Kesten’s opposing counsel sent over the seven boxes of stocking stuffers — on Dec. 24.
“I spent the next month reading through the boxes,” Kesten recalls. “Within three days I took all the money off the table and told my client that [the lead plaintiff] was lying — that these people were involved in a conspiracy.”
According the Kesten, the documents, which the plaintiffs’ lawyer had not read before delivering, proved that the plaintiffs’ claims were fabricated.
Kesten filed a counterclaim, worked through a six-week trial and ultimately recovered $40,000 plus $200,000 in attorneys’ fees.
He calls it “the hardest case I’ve ever done.”
The case set the tone for the rest of the year — the busiest year of Kesten’s career — during which he litigated and won six cases, including five in federal court. (See chart at bottom.)
And these weren’t exactly yawners of cases, either. In 1999 it seemed that every time a quirky or intriguing lawsuit was brought against officials of a town, there was Kesten’s name as defense counsel. Seedy allegations of an improper strip-search in Gloucester. A tiff surrounding police action at a “kegger” in Marblehead. A teacher claiming she was fired because her boyfriend had been accused of sexual misconduct. Each time Kesten stood up for the “bad guys..” And each time, he triumphed.
The son of Holocaust survivors, Kesten was born in Wroclaw, Poland. His family moved around Europe and Israel until he was 10, when they finally crossed the Atlantic and settled in the states.
“I was 10 before I spoke a word of English,” Kesten says.
His late introduction to the language, however, didn’t stop him from excelling academically.
Kesten attended the University of Connecticut and after graduation received a masters in education from Harvard.
Before attending Northeastern University School of Law in 1983, Kesten worked as a school teacher and a prison warden.
His work experience gives him insight into his currect practice, which focuses on municipalities.
“I work closely with the Massachusetts Municipal Association and we represent hundreds of towns dealing with all kinds of cases,” he says.
Much of Kesten’s time is spent defending police departments, which one might think would be difficult given the current focus on police brutality in the aftermath of the Cox case locally and the Rodney King trial.
But Kesten doesn’t give much credence to the thought that juries are increasingly hostile to police defendants.
“Having done this for a long time, I firmly believe that every case stands on its own merits and that everybody on the stand stand on his… own merits,” he says. “A witness that is lying will lose, a witness that is telling the truth will win.”
Representing police departments and towns often means coverage by the media, and this year the cases Kesten worked on — and Kesten himself — have received a fair amount of media attention.
Some of that attention has been less that flattering.
Glamour magazine, for example, interviewed Kesten for three hours on the subject of plaintiff Jennifer Ciulla’s claim that the Gloucester police had improperly searched her.
But which of Kesten’s comments were printed? Only that the Boston lawyer thought of Ciulla as a “cheap trollop” and a “liar.”
“When you have a substantive discussion with a reporter about a serious case, the have them take something you may or may not have said whimsically [as the sum of your comments] is upsetting,” Kesten admits.
Kesten also experienced the media’s scrutiny while trying the case of Howes et al. v. Hitchcock et al.
During that case, Kesten had a number of run-ins with Elaine Whitfield-Sharp — the Marblehead lawyer who was once part of the esteemed Louise Woodward defense team, only to later be dismissed from the team after a bizarre standoff with a police officer.
Kesten’s tete-a-tete with Whitfield-Sharp culminated in her filing a motion asking the judge to find that Kesten was sexist.
“She had no role in the trial other than to go to sidebar and continually accuse me of things,” says Kesten.
The Boston Globe, which covered the Howes case, picked up on the conflict between Kesten and Whitfield-Sharp and ran it as an example of the demise of civility in the practice of law.
The Globe highlighted an acrimonious exchange that occurred during a deposition between Kesten and another lawyer.
In the exchange, Kesten admits he “egged” on the other lawyer and allowed what should have been a brief moment of incivility to escalate into a full-blown dispute.
But Kesten doesn’t try to hide the unseemly transcript from the press, or from the larger legal community.
Not only did he give the transcript to the Globe, he also uses it in the legal classes he teaches.
“I use that transcript as an example of what not to do,” he says. “You should always try to be bigger [than an uncivil opponent] and here is an example of how I, in retrospect, should have said nothing.”
Kesten’s views on the increasing incivility of law practice are quite sanguine considering the conflict he recently faced.
“I get along with 98 percent of the lawyers I try against,” he says. “It’s a small community.”
All the media attention has not stopped Kesten from enjoying his work.
In fact, the case that “makes him the proudest” began with full-blown CNN coverage.
Every year on Thanksgiving Day in Plymouth, there are two main events: the Pilgims’ Progress, where 52 people, representing the 52 survivors of the pilgrim’s first winter; and a protest of the King Phillip’s War by Native Americans.
(The King Phillip’s War, little known in history books, was a war that occurred 20 years after the first Thanksgiving, Kesten explains.)
According to Kesten, 20 years after a Massasoit welcomed the pilgrims there was a war during which Massasoit’s son was murdered and his head stuck on a stake in downtown Plymouth.
“So [the Native Americans] say that Thanksgiving…is a day of mourning, because [they] lost their land…and their ancestors,” Kesten says.
Two years ago there was a dispute as to where each group would conduct their march. “Twenty-three people were arrested,” he recalls. “It was all over the national media.”
Kesten’s law firm was hired by the Massachusetts Municipal Association to resolve the conflict between the Native Americans and the town.
“We had meetings, we met with historians. I immersed myself in the history,” Kesten says. “It was very hard to do because there were hard feelings on both sides.”
Finally, the town and the Native Americans came to an agreement: the Native Americans could march where and when they wanted without a permit as long as they notified the town, and the town would place money in a Native American education fund and put up commemorative plaques explaining the significance of the King Phillip’s War.
“It was dispute resolution: nobody won, nobody lost, everyone shook hands — which is what you should do,” Kesten says.
Next Thanksgiving, Kesten is planning on bringing his two sons to Plymouth to watch the Native American protest.
“That’s what this country is about,” he says. “Everybody gets their own point of view. We kept saying to the people who were against us, ‘You might not like what [the Native Americans] have to say, but they are certainly entitled to say it.’”
Kesten’s Busy Year: A Perfect 6-0
Trying cases is what Leonard H. Kesten’s firm — Brody, Hardoon, Perkins & Kesten — was designed to do. “We are a trial firm,” he says. Even so, trying and winning six trials in one year is an accomplishment. The following is a brief outline of Kesten’s past year. In each case he represented the defendant.
|Auty v. Town of Mendon||Police and town sued based on allegations that officers were harassed for their support of women’s rights||Kesten successfully defends town and wins counterclaim|
|Howes, et al. v. Hitchcock, et al.||Police officers sued for violation of civil rights after warrantless search of teenage drinking party||Court rules that officer’s conduct was justified by exigent circumstances|
|Ciulla v. Rigny et al.||Police department sued after female motorist claims she was strip-searched for officers’ “entertainment”||Defense verdict|
|Gilmore v. Town of Topsfield||Fired teacher claimed town’s decision not to renew her contract was based on her relationship with her husband — who had been accused, but not convicted, of child rape||Jury finds that teacher’s contract would not have renewed regardless of her relationship|
|Whitney v. Lewis||Slip and fall down stairs||Defense verdict|
|Wilson v. Town of Mendon||Police accused of civil rights violation and use of excessive force on a DUI suspect||Defense verdict|
By Wendy L. Pfaffenbach. Reprinted with permission form Lawyers Weekly Publications, 41 West Street, Boston, Massachusetts, 02114-1233, 800-444-5297 © 2000. Massachusetts Lawyers Weekly – January 24, 2000.