News

(Un)civil action: Lawyer showdown underway

By Julie Manganis
Staff writer
Published: December 4, 2008

MARBLEHEAD — It could have been a scene out of the television show "Boston Legal" as lawyer Sam Perkins greeted Elaine Whitfield Sharp before starting his cross-examination yesterday.

"Good morning, Ms. Whitfield Sharp," he began.

"It's Ms. Sharp," she corrected him. "Whitfield is my middle name."

But her firm, isn't it called Whitfield Sharp and Sharp? the attorney asked.

"That's how people know me," she said.

And weren't all the court filings in the case labeled "Whitfield Sharp vs. Kesten? Perkins, who is representing his law partner, Leonard Kesten, asked.

"My full name is Elaine Whitfield Sharp," the Marblehead lawyer responded. "It isn't a crime, is it, to have a middle name?"

The tension is nothing new between Sharp and Leonard Kesten. In fact, that's why they are in Newburyport Superior Court this week. Sharp has sued Kesten for libel and slander over statements he made to reporters after a 1999 trial.

Kesten represented the town of Marblehead and its police Sgt. Brian Hitchcock in a lawsuit filed by Sharp, who charged that police had violated the rights of a mother and son, Pauline and Alexander Howes, when they raided an underage drinking party at the Howes' home in 1996.

The trial was so contentious that it became the chief example in a Boston newspaper's story about declining civility among attorneys. There was one exchange, for example, in which Kesten accused Sharp of slapping his hand and frequent objections during the trial.

During the trial, in which the town prevailed, a witness named Lila Gensure reported that Sharp had come up to her and another witness and yelled at them in a corridor, calling them liars.

Sharp doesn't deny that she called the witnesses liars (though she denies yelling), nor does she deny taking photos of Gensure sitting with police officers in a courthouse cafeteria (she says she was trying to show that the witness was biased in favor of the cops).

She alleges that when Kesten called those actions "witness intimidation" in interviews with reporters after the trial, he defamed her, savaging a reputation she was struggling to rebuild after some unpleasantness during another case.

That was the internationally covered trial of au pair Louise Woodward, accused of shaking baby Matthew Eappen to death. A drunken-driving arrest and her allegations of sexual harassment against a state trooper and a nasty falling-out with the other lawyers on Woodward's legal team were "absolutely devastating."

"I don't think it could get any lower than that," Sharp said.

But she's alleging that when she read the comments by Kesten, she grew suicidal.

Kesten doesn't deny making the comments about witness intimidation to reporters and in a letter to Lawyer's Weekly — a trade newspaper once headed by Sharp's husband, Dan.

"It reflects my views then, and it reflects my views now," Kesten said.

He was adamant that he would not apologize for his comments.

"It seems like you have some animus toward Ms. Sharp," her lawyer Randy Hitchcock suggested.

When Kesten denied that, he suddenly found himself facing his own words from the day before — a joke that may have backfired when Hitchcock brought it up in front of the jury.

After hearing Sharp testify Tuesday about how she was suicidal over the news reports, Kesten quipped to her lawyer outside court that he hadn't realized she was so close to the edge.

"If you could tell me what to do to make it happen," Kesten had joked in the sort of gallows humor common among lawyers during cases.

Outside court, Kesten called Hitchcock's use of the joke "a cheap shot."

Sharp has won one legal victory already in the case, convincing Judge Kathe Tuttman that she is not a public figure, which lowers her legal burden of proof in the case.

Kesten and his lawyer argued that Sharp is a public figure because of her prominent role in the Woodward case, the widely publicized dispute with the trooper who arrested her on drunken-driving charges in 1998 and because of the coverage that the Howes case also received.

And besides, he says, his statements were not libel because they are protected speech, a legitimate opinion based on facts.

The trial resumes this morning and is expected to conclude by tomorrow.