A proud member of SABA GB’s Advisory Board, Mark Fleming is a partner at WilmerHale and vice-chair of its Appellate and Supreme Court Litigation Practice. He is known nationally for his work on more than 100 appellate cases and his personal oral arguments in almost 30 cases, including five before the Supreme Court of the United States and nine before the U.S. Court of Appeals for the Federal Circuit. He has also argued before the First, Third, Eighth, Ninth, Tenth and District of Columbia Circuits and the Massachusetts Supreme Judicial Court and Appeals Court.
Education and Early Career
Mark is an alumnus of University of King’s College (BA) and Harvard Law School (JD). In law school, he was an Executive Editor and Editor of the Harvard Law Review. After law school, Mark’s experience included clerkships with the Honorable David H. Souter of the Supreme Court of the United States, the Honorable Michael Boudin of the U.S. Court of Appeals for the First Circuit, and the Honorable John C. Major of the Supreme Court of Canada. Mark also served as an Associate Legal Officer in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. He then joined WilmerHale and later rose to partnership and leadership positions within the firm.
A Memorable Case
When asked to recount one of his favorite cases, Mark described his work in Stanford v. Roche, where he successfully persuaded the Supreme Court that the Bayh-Dole Act – an Act sponsored by senators Birch Bayh and Bob Dole permitting universities to retain ownership of inventions made using federal funding – also allowed inventors to assign their individual intellectual property rights to third parties. In describing his oral argument in that case, Mark – while chuckling – fondly recounted a moment when, after a particularly difficult response to a question from the bench, Justice Stephen Breyer stated, “Your answer is not as bad as I think.” To which Mark could only reply, “Thank you,” which received some laughter from the bench and the audience.
Advice to Litigators and Associates
Mark credited much of his success to working with excellent senior partners who gave him the opportunity to grow and develop and clients who trusted him on their cases. His advice to all associates: find a “sponsor” within your firm – someone who will guide you on what to do to succeed at the firm, provide opportunities for your success, and go to bat for you in your annual and partnership review. He suggested finding key players at the firm and developing meaningful relationships with them.
Of course, the key to success at any firm is hard work. Mark said his preparation for any case is extensive. For any oral argument, he prepares by practicing as much as he can. He holds moot courts in which he asks other members of the firm who are unfamiliar with his case to read the briefs and ask hard questions. His then asks his team to critique his answers. He also practices his arguments aloud to himself. “The most important thing is to know your case inside and out – you never know what the judges will focus on.”
Advice to Law Students
First year students, focus on your grades. This will be one of the most important factors affecting your next career options. He also recommended that all law students pay particular attention to their legal writing skills, because most undergraduate programs do not prepare students for legal writing. Law students should use all available writing opportunities in law school to hone that skill. In addition, law students should focus on making friendships and durable contacts within their own law school class and maintaining them after graduation; law school connections can become major referral sources.
Finally, he urged law students to focus on their communication skills. Mark recounted an interview in which a candidate listed “cheeseburgers” as one of his interests. Hoping to elicit an entertaining story, Mark inquired about this. The candidate’s only response was, “I just really like cheeseburgers.” Mark was so disappointed by this answer. Here, the candidate was given a great opportunity to make himself look interesting – he could have said anything – but failed to deliver. He said, “If you decide to include something on your resume, be prepared to talk about it.”