Appellate Lawyer of the Week Mark Fleming

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					                                                                                                          Supreme Court Insider
June 16, 2011

                Appellate Lawyer of the Week: Mark Fleming
Marcia coyle                                                                                                     was scheduled to argue, the 2nd Circuit issued a
                                                                                                                 decision going our way on the very same issue.
    Persuading the Supreme Court to affirm a patent                                                              I did the best I could in the 9th Circuit but the
decision by the U.S. Court of Appeals for the Federal                                                            court ruled came against me. The split circulated
Circuit, given that court’s recent track record before                                                           and we filed the cert petition last fall.
the justices, is a big event for any appellate litigator.                                                           “You never know which way a case is going
But to do it in your first Supreme Court argument                                                                to go.”
and despite the United States’ call for reversal, well,                                                             Fleming credits his year with Justice Souter
that icing on the cake never tasted so good.                                                                     for firming his own career’s trajectory.
    Mark Fleming, partner in the Boston office                                                                     “At that point, I’d been out of law school
of Wilmer Cutler Pickering Hale and Dorr, was                                                                    for five years,” he said. “I had practiced as a
in that enviable position last week when the                                                                     general litigator. Seeing the parade of truly
justices ruled in his favor in Stanford University v.                                                            exceptional Supreme Court advocates that
Roche Molecular Systems.                                                                                         year made me realize that was the craft I
    “I don’t think that has actually happened                                                                    wanted to learn.”
before — where the Federal Circuit has been                             Wilmer’s Mark Fleming                       Growing up in an English-speaking family in
affirmed when the solicitor general has urged                                                                    a French-speaking province, he said, also made
reversal,” said Fleming. “I think the Court typi-                                                                him very aware of the importance of language
cally listens very closely to the recommendations           Bay, because they allegedly were part of a plot      on human relations. “Legal writing has an impact
of the solicitor general. Although Roche did                of bomb the U.S. embassy in Sarajevo, but who        on human relations in a very concrete way,” he
oppose the grant of cert, it was a very good bet            later were claimed to have been planning to          added. “I also like the performance aspect of [appel-
after the solicitor general filed his brief, that cert      travel to Afghanistan to support Al-Qaeda.           late work]. I’m a very shy person. One way to
would be granted.”                                             Fleming met partner Stephen Oleskey, who          deal with it was to be active in theater in college.
    The Roche decision was not the only action by           was one of the lead lawyers for the Algerian         [Appellate argument] gives the same rush of excite-
the justices that created an excellent term for the         6 — at a holiday party and soon was drawn            ment, when things go well.”
former clerk to retired Justice David Souter.               into the case because of his experience with the        Based in Boston, he said, he has access to “two
    Fleming filed a petition in a complex immigra-          International Criminal Tribunal.                     premiere practices,” the core appellate practice
tion case — Judulang v. Holder — which the jus-                “I had just come from the Yugoslavian war         based in Washington and headed by Seth Waxman
tices agreed to hear this fall. And he authored an          crime tribunal and I knew a little bit about         and the Boston-based trial litigation practice, which
amicus brief on behalf of a number of conserva-             Bosnia,” recalled Fleming. “Steve was going to       generates substantial appellate work.
tive and libertarian legal organizations in a civil         Bosnia. My initial involvement was on the dip-          “Seth has been extremely supportive of hav-
rights fee shifting case — Fox v. Vice — and joined         lomatic side.”                                       ing appellate practices outside of Washington,” he
with partners Seth Waxman and David Ogden in                   That would soon change as one of the six          added. “We have a real skill set that can be used
amicus briefs in Global-Tech v. S.E.B., and Matrixx         men’s cases — Lakhdar Boumediene — became            to benefit clients wherever based. When I started,
Initiatives v. Siracusano.                                  a lead case in the D.C. Circuit and then went        most of my work originated out of Washington;
    Born and raised in Montreal and a graduate of           to the Supreme Court where Wilmer scored a           now it’s about 50-50.”
Harvard Law, Fleming said, “It has been a long              major victory for detainees’ efforts to challenge       He expects much of his summer to be spent
and unpredictable road” to being an appellate               their detentions.                                    preparing for the Supreme Court argument in
litigator.                                                     On remand from the Supreme Court, a federal       Judulang, but he is also involved in two appeals
    After graduating from Harvard, Fleming held             district court ordered the release of five of the    in the Federal Circuit and is representing Harvard
three clerkships: a year with Judge Michael                 six men who had been in the prison for nearly        in federal district court in a case involving whether
Boudin on the U.S. Court of Appeals for the 1st             seven years. Fleming handled the appeal of the       antiquities in the Harvard art museum can be taken
Circuit, a year with Justice John Major of the              sixth man — Belkacem Bensayah. Last summer,          to satisfy a judgment that victims of terrorism have
Supreme Court of Canada, and then a year with               he won what was the first (and so far the only)      against the government of Iran.
Souter. “As far as I know, I was the first person           ruling in which the D.C. Circuit has reversed           From patents to immigration to Guantanamo
to clerk for the Supreme Court of Canada and                a district court’s denial of habeas corpus to a      detainees to museum antiquities, that is the lure of
the Supreme Court of the United States. My                  Guantanamo prisoner.                                 appellate litigation, he explained. “It’s the ability to
friends used to kid me and say there was clerk                 “We are still very much involved in those         be a generalist. No case is like another.”
opening on the Supreme Court of Mongolia,”                  cases — our client in Guantanamo and helping
he said.                                                    the other clients find their feet in other coun-       Marcia Coyle can be contacted at
    Before joining Wilmer in 2004, he also was an           tries,” he said.
associate in the litigation department of Ropes                Judulang — his immigration case next term —
& Gray and served as an associate legal officer             also is a pro bono matter. “I took that on through   Reprinted with permission from the June 16th, 2011
in the Appeals Chamber of the International                 the 9th Circuit pro bono program in 2006,” he        edition of THE NATIONAL LAW JOURNAL ©
Criminal Tribunal for the former Yugoslavia.                said. “Our firm does a number of those cases.        2011 ALM Media Properties, LLC. All rights reserved.
    In 2004, Wilmer took on pro bono representa-            The 9th Circuit usually guarantees an argument       Further duplication without permission is prohibited.
tion of the so-called Algerian 6 — six men picked           and it was a good opportunity for me to get a        For information, contact 877-257-3382, reprints@alm.
up in Bosnia and transferred to Guantanamo                  court of appeals argument. The Friday before I       com or visit #005-06-11-17