Trial lawyer was co-counsel in U-M cases

By Sheila Pursglove

Legal News

It's no accident that trials, trial lawyers, and judges have long been the subject of novels, plays, and movies, notes attorney Philip Kessler, a litigation attorney and partner at Honigman, Miller, Schwartz, and Cohn LLP in Detroit, and a University of Michigan alumnus.

"Every trial is an unforgettable life experience," he says. "Human dramas unfold in trials."

In one such drama, a pro bono case in the Wayne County Circuit Court, Kessler successfully defended his downtown Detroit barber and the gentleman who shined patrons' shoes, both of whom were accused by several female hair stylists of sexual harassment. "I will never forget my clients' relief and jubilation when the jury returned its verdict and hugged both of my clients," he says. "The scene was out of a movie!"

Kessler's many challenging cases include The Evening News Association takeover case of 1985 and its companion securities fraud cases of 1986, both of which attracted widespread attention and were heavily covered by local and national media.

The first, launched by Hollywood producer Norman Lear and a business associate, was commenced in conjunction with their surprise, hostile tender offer to gain control of the company that had, from its inception, owned The Detroit News and other important media properties throughout the country, including the NBC television channel in Washington, D.C. The litigation led to the company's merger with Gannett. The securities fraud cases arose from events connected to the failed takeover attempt.

"These cases were fascinating due to the issues and stakes - and because they involved the history of legendary multi-generational media families," Kessler says.

He served as co-counsel from a very early stage, in the federal district courts through the United States Supreme Court, in Gratz v. Bollinger and Grutter v. Bollinger. These cases challenged the constitutionality of the affirmative action admissions policies of the University of Michigan and U-M Law School."These momentous cases involved difficult, vitally important social and legal issues for our country and for American higher education," he says. "The principles for which we advocated on behalf of the University were validated by the Supreme Court."

In the winter of 2010, he tried Whitesell Corporation v. Whirlpool Corporation, a federal court jury case in the Western District of Michigan. "It was an unusually difficult, hotly contested, complex breach of contract case in which the jury returned a verdict for our client of more than $33 million. The result was affirmed by the United States Court of Appeals for the Sixth Circuit." he says.

Kessler enjoys achieving an effective cross-examination."And I also enjoy the debates that take place with talented opposing counsel and the intellectual and emotional workouts I get in developing hopefully persuasive responses to counter-arguments and questions from the bench," he says.

He has seen many innovations over his 40-year career. "Technology provides more vivid, impacting means of presenting important evidence and allows for spontaneous searches of testimony in trial that conflicts with prior testimony or other statements witnesses have made," he explains. "Many judges are increasingly innovative in developing techniques to achieve greater trial and litigation efficiency.

"The explosive growth in email and text communications has created the challenges of e-discovery. In complex cases particularly, e-discovery can significantly expand and extend the discovery process and increase its cost to the understandable dismay of clients. The use of expert witnesses has also increased markedly."

After graduating from the University of California at Berkeley School of Law, Kessler was interested in business issues - in litigation and non-litigation. "Practicing in Detroit enabled me to pursue both major firms in New York and similar markets would have required specialization early," he says.

Eventually, he gravitated exclusively to litigation. "I found the excitement, challenges and even the pressures of trial work irresistible," he says.

IP litigation was a natural extension of business litigation."Patent litigation was especially challenging," he says. "I quickly realized that, as in complex business cases, it's essential to cut through the jargon-laden topics that regularly arise in patent cases, learn the concepts and find ways to present them effectively to courts and juries."

Last October, Kessler was appointed chair and president of the board of directors for the United States International Rule of Law Project (IROLP) Inc., the U.S. affiliate of the Bingham Centre, headquartered in London, England, where he has served on the board since 2014.

"The Centre's mission, shared by IROLP, is to help developing countries create fair, balanced justice systems to ensure that disputes are resolved impartially and in accordance with the Rule of Law, not the rule of whim or undue influence," he explains. "Working together with the Bingham Centre, the Centre's parent, the British Institute of International & Comparative Law and perhaps, in time, with other respected, like-minded U.S. based organizations, I believe we can help better secure our deeply troubled world and improve the lives of millions of people around the world. Anyone who cares about humanity and the common good will understand why I'm attracted to this work."

A life member of the Judicial Conference for the U.S. Court of Appeals for the Sixth Circuit and a life fellow of the American Bar Foundation, Kessler is a Fellow of the American College of Trial Lawyers, where he has served on its Board of Regents and Executive Committee, The International Society of Barristers, and the International Academy of Trial Lawyers.

His involvement with the American College of Trial Lawyers led him to the Supreme Court Historical Society, where he serves as a trustee, as secretary on the Executive Committee, and served as national membership chair for three years.

"The Society's focus is one of America's most important institutions," he explains. "It supports first rate scholarly research and publications concerning the court's history, its significant cases, and fascinating, relatively unknown esoterica about the court and its justices. The Society also conducts programs for secondary school teachers to enable them to better educate students about the court, constitutional law and the court's profound contributions to our society and role in government."

Published: Mon, Mar 07, 2016

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