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 email@example.com.
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 www.almreprints.com. #005-06-11-17