Mark Fickes – Podcast Transcript
[00:00:00] Louis Goodman: Welcome to Love Thy Lawyer, where we talk to practicing attorneys about their lives in and out of the practice law. I’m Louis Goodman, the host of the show, and yes, I’m a lawyer. Nobody’s perfect. He is a civil and criminal litigator in both State and Federal Court. He served with the United States Security and Exchange Commission as a staff attorney and trial counsel.
He was a litigator with Wilson Sonsini. And before that served as a Deputy District Attorney in Santa Clara County, he is currently running for Alameda County Superior Court Judge and will appear on the November ballot. Mark Fickes, welcome to Love Thy Lawyer.
Mark Fickes: Louis. Thank you so much for having me. I’m looking forward to chatting with you.
Louis Goodman: Well, it’s a real privilege to have you on and for taking time out of your [00:01:00] campaign in order to join us today. Mark, what sort of practice do you have right now?
Mark Fickes: Well, Louis, one of the things I love about my practice is just how diverse it is. I do a mix of work. I still do the occasional criminal defense case, often pro bono, usually for someone where a client refers me.
And I do that just to keep my feet wet in the criminal law pools. So to speak right now. Well, I’ve got a real variety. I am doing some civil rights cases on behalf of an African American owned business up in Butte County. I’m wrapping up a civil case on behalf of a Laotian immigrant in Lake County.
And right now my docket is actually pretty full on some workers’ rights cases. I’m representing some union employees who are being subject to various kinds of workplace discipline, usually for a retaliatory purposes, either because of race, gender or sexual [00:02:00] orientation and in the three or four cases I’m doing right now, actually it’s all of the above.
I’ve got cases involving people who are being discriminated against because of LGBTQ status because of their race, their sexual orientation by and large.
Louis Goodman: Where are you from originally?
Mark Fickes: I am a rare breed here in that I was born and raised in San Francisco. My dad was born and raised in Oakland and my grandparents lived in Hayward for most of my childhood before they passed away.
Louis Goodman: Where’d you go to high school?
Mark Fickes: I actually went to high school down in Southern California at a place called the Facture Down in the Ohio Valley.
Louis Goodman: What was that like?
Mark Fickes: Facture was a really great place. It gave me an opportunity to really get an outstanding education. They gave me a tremendous financial aid package.
Otherwise my family could never have afforded to send me there. And it really set me up for my life and my career afterwards. Some of my longest [00:03:00] and best friends are people that went to Thatcher with me. I’m convinced that I got into UC Berkeley for college because of that. And again, I was very fortunate that the school gave me financial aid so that family could afford to send me.
Louis Goodman: What was your experience at UC Berkeley like?
Mark Fickes: Berkeley was great. First of all, for me, it was a bit of a homecoming in that growing up in the Bay area. I was familiar with Berkeley. So I had friends such as, from my childhood in the area.
Louis Goodman: Did you go directly from college, into law school?
Mark Fickes: No, I did not. When I graduated from college, I actually didn’t know exactly what I wanted to do, but I liked the idea of teaching and public speaking.
And so I decided to go to graduate school and study French Literature at Johns Hopkins University.
Louis Goodman: When did you start thinking about going to law school?
Mark Fickes: I started in my fourth year in grad school. And just to tell you how that happened, I had spent time in France on a research [00:04:00] grant and come back home.
And this was sort of in the heyday of Court TV and televised trials. And believe it or not, it was the William Kennedy Smith rape trial, which was sort of big news in the early nineties. And I watched that trial on television and I thought to myself, that’s what I want to do with my career. And yeah. So to make a long story short, after that, I applied to law school and came back to San Francisco to attend UC Hastings.
Louis Goodman: What did you think of Hastings?
Mark Fickes: I loved it. You know, it was a big school, which I enjoyed by then. I moved to the East Bay and my now husband, but then partner, you know, he had his career. We lived here in the East Bay and I commuted to the city and went to school. And I had a great time. Again. I met a lot of great people who are my friends to this day.
Louis Goodman: What did your friends and family and your now husband have to say when you told them that you were going to law school and you wanted to be a lawyer?
Mark Fickes: Well, there was a mix. I [00:05:00] Would say half of the people out there asked if I was crazy and the other half of the people were pretty darn supportive. I think people knew that I went to law school with this idea of wanting to be a trial lawyer.
I loved the idea of trials.
Louis Goodman: What was your first legal job?
Mark Fickes: My first legal job. Well, I started as an intern, so this was not for pay. Actually. I started out as an intern in the San Francisco Public Defender’s Office. And I did that during my first year of law school. My first paid job, however, after law school was with the District Attorney’s Office down in Santa Clara County.
Louis Goodman: What did you think about the difference between being in the District Attorney’s Office as opposed to the Public Defender’s Office?
Mark Fickes: Well, you know, for me it was a real adjustment all through law school. I had interned with Public Defenders and I think I started my career thinking that that’s what I was going to do, but I was really lucky that the people I worked with at the DA’s office in Santa Clara County were really just [00:06:00] a good group of people who in my view were really committed to justice. And by that, I mean that I learned from, and worked with people who use their discretion often not to charge cases and often to look at cases and look at the people charged, you know, in a pretty holistic way.
And I think the view there, and it’s one I embraced and one, I admired. Was not that the criminal justice system was just about punishment, but about trying to get people on a track in life where they can be more successful. And that’s something I really appreciated and I would add that it was, for me, it was a great first job when I was there.
When I started at least I was only the second openly gay man to work in that office. And I started feeling a little worried about what that might be like, but I loved working with a group of colleagues who judged me for my work ethic and my trial skills. And I could care less about my sexual orientation.
And so it was a really positive work experience with some really talented and thoughtful people.
Louis Goodman: After you left the [00:07:00] District Attorney’s Office, you went on to work with Wilson Sonsini and some other pretty heavy-duty litigation firms that had clients in Silicon Valley. So, how was that experience compared to coming out of the criminal world?
Mark Fickes: Well, I will level with you.
Louis Goodman: Gamble with the truth.
Mark Fickes: Yeah, it was a rude and harsh awakening in a lot of ways, you know. When you at the DA’s office, you know, the focus was on trial work and resolving cases and things moved in a pretty quick pace. When you work for what at the time was one of the nation’s largest law firms representing some of the biggest companies in Silicon Valley, there was a notion that everything you did have to be perfection. Those clients didn’t pay for a large law firm to make mistakes. And so it was really a learning experience for me in cases where I was involved in [00:08:00] investigations. I learned how to do an investigation where you left no stone left unturned. And I think where I grew the most was, you know, in civil litigation, a lot more turns on written product, you know, and not just oral skills. I mean, you have to file a lot of briefs. They have a lot of paper associated with them. And I think I learned at a large law firm, how to be a written advocate for my client and not just an oral advocate and the other big awakening for me was starting to litigate cases in federal court. I think when you practice criminal law in state courts in, in some ways it’s a little bit like the wild West. I mean, people are talking in the courtrooms. Things are happening at a mile a minute and there’s a lot of activity. And when you get to a federal courtroom for your first time, it’s just a very different environment.
Louis Goodman: You’ve also worked for the Securities and Exchange Commission.
Mark Fickes: Yeah.
Louis Goodman: Tell us a little bit about that experience.
Mark Fickes: Well, not including my current [00:09:00] practice, I would say that my work at the SEC was my favorite, my favorite gig that I’ve ever had. And what I liked about it was I liked being the person that kind of got to wear the white hat.
You know, at the SEC, we predominantly worked on two kinds of cases. One of which was corporate fraud where, large corporations were misleading people and investors and getting rich off of misleading people. And in the era when I was there from 2004 to 2011, we were really cracking down on fraud in Silicon Valley.
But what we also got to do was to help a lot of what I call like the average person down the street. I did a lot of cases that involved investment scams, someone who could have been my grandmother or my grandfather got cheated out of their life savings. On an investment scheme that was just, you know, completely ridiculous, completely bogus.
And I got to work for them.
Louis Goodman: Well, you’ve certainly had a varied career. You’ve been in a number of [00:10:00] different types of practice and it strikes me that you’re somebody who really likes being a lawyer. And I’m wondering. What it is about practicing law that you really like?
Mark Fickes: Yeah. You know, there’s a lot of different things about being a lawyer that I like.
I think there are, for those of us that practice law, there’s a bit of a masochistic side to it all. Which is sometimes you go into a courtroom thinking that things are going to go your way. And he ended up kind of getting kicked in the teeth. You know what I mean? Either judge a judge, see it your way or a jury doesn’t see it your way. And you know, what I love about it is when that happens, you get one thing. There’s only one thing you can do. You pick yourself up by the bootstraps and you try again the next time. And I love the thrill of trial. I just find it exhilarating and exciting. And I don’t know if all lawyers feel this way, but I’m rarely happier then when I’m in trial, I just love the pace of it. The dynamics of everything, just moving so quick and [00:11:00] the kind of chaos that comes about when you take a case that you’ve nurtured and loved for years and years and years, and you’ve handed it over to a judge or a jury for them to decide.
Louis Goodman: If a young person was coming out of school and was thinking about a career in law, do you think that that’s something that you recommend?
Mark Fickes: You know, I think it depends a little bit on the person. My daughter has occasionally suggested that she might want to go to law school and you know, what I tell people when I hear that they’re interested being in lawyers is that the practice of law, it can be really rewarding, but it can also be incredibly demanding and if you want to be a lawyer, you got to be sure you have a thick skin
Louis Goodman: You’re currently running for Judge.
Mark Fickes: I am.
Louis Goodman: When did you start thinking about that as a career move?
Mark Fickes: I think the idea first came to me probably eight or nine years ago when someone had suggested that I consider applying to Governor Jerry Brown’s [00:12:00] office to be appointed as a judge.
And, you know, I just started sort of turning that notion around in my head. I did take a look at that crazy a hundred page or so application. It’s not quite that long, but it’s a long application. And, you know, I just, I thought I started thinking about what I like about what I do, what it is that I see good job, which is doing and you know, it really just kind of sat with me. And I just thought to myself, you know what I love about my work. A lot of times is helping people navigate the legal system in what can often be the most difficult periods in their life. And that’s true, whether you’re accused of a crime or, you know, whether you’re involved in a lawsuit. It’s very stressful and learning to navigate that situation is and helping someone navigate that is probably one of the most rewarding things I get to do.
And what I realized is although judges cannot be advocates, you know, the good judges do [00:13:00] help people navigate the system by showing the people that come in front of them, that they work hard. That they’re fair, that they’re willing to hear everyone’s point of view, and that they’re going to do the good work that they need to do in order to get a case decided.
Louis Goodman: How’s the campaign going?
Mark Fickes: The campaign is exhausting. It’s a roller coaster ride. It’s everything you see in the practice of law as well. You know, there are, I think one of the things I love the most is that you just get to go out and you get to meet people all the time. And, you know, in Alameda County, people are pretty engaged.
I mean, I don’t go to a farmer’s market where at least a couple of people don’t come up to me and really chat with me for a good 5 or 10 minutes about, you know, who I am, what I do and why I want to be a judge. And that part, I absolutely love it. I just love it.
Louis Goodman: How about raising money, how’s that been?
Mark Fickes: I think money is the hardest part of what we do and, you know, it’s a discipline [00:14:00] and it’s funny, you know, Louis that I was president of a synagogue here in Oakland for three years and oversaw one of the biggest capital campaigns we had done. And I never had problems asking people for money when it was for a good cause.
And you know, for me being the grandson of people who fled Austria during the Holocaust raising money for the Jewish community has always been something that I take great pleasure in, and I consider it a privilege to do it when that good cause is you. It’s just, it’s a little bit different, you know, and it just, it takes getting used to. But a friend of mine who works in politics, she once told me, if you don’t believe in yourself enough to ask people, to give you money, to run a race, then you have no business being on a campaign.
And I take that message the heart. And every time I feel a little frustrated about having to make fundraising calls or every time you get a no, you know, some people give money and other people don’t, I just remind myself of that, I believe in myself enough to [00:15:00] ask people to give me money in order to keep this race going forward.
Louis Goodman: Yeah. Well, as you know, I ran for judge a few years ago and it was really shocking to me how much money it costs to run a campaign. And I’m sure you found that to be true too.
Mark Fickes: Yeah. You know, and I know some people who have run campaigns in San Francisco and in some other counties and Alameda County is unique in terms of how much it charges at least judicial candidates to get that 200-word statement on the ballot materials that come out.
That is, I think it’s almost a $27,000 price tag. So it’s one of the most expensive races to run just right out of the gates. And, if you’re in a situation like I am, where there was a three way, a contest for the primary and now a two-way contest for the general election, you pay those fees.
Louis Goodman: Do you have a [00:16:00] 30 second elevator speech?
Mark Fickes: I do have a 30 second elevator speech.
Louis Goodman: Let’s hear it. I’m starting the clock.
Mark Fickes: Yeah. Alright. Well, I am running to be a judge because I want to be an agent of change. We need to they have more diversity in our courts and I believe I’m the person to bring it to the courts. Out of 72 judges currently serving in Alameda County, there was only one openly gay man who served as a judge right now. So I would add to the diversity in that sense. And also I believe that for years, we have generally elected and seen appointed judges, whole experiences in the criminal justice system. And while that’s a noble cause I believe absolutely that a lot of the court’s businesses have to do with the civil justice system.
And I am the one candidate in this race that has both been a prosecutor and a defense attorney in criminal cases. I’ve represented plaintiffs and defendants in civil cases. And in fact, I’m the only candidate who’s basically handled every kind of case a [00:17:00] judge is asked to decide with the exception that I don’t do divorces and I don’t do probate.
And I think that makes me the best suited candidate for this race.
Louis Goodman: Well, that’s very concise.
Mark Fickes: I told you I was getting tired of all the speed dating I’m doing for endorsement. So I had to take some liberties.
Louis Goodman: What, if anything, would you change about the way the legal system works?
Mark Fickes: Yeah. You know, and that goes a little bit to my campaign pitch that I was talking about.
I think that the legal system does not often understand the toll that it takes on people, particularly small businesses like I represent and individuals. And, you know, lawsuits are incorrect, I believe expensive and can move very slowly. And so you represent a farmer in Red Bluff, like I do, for example, or a small African American owned business in Chico, and they’re involved in a lawsuit that really could make or break them. When we show up to court and a [00:18:00] judge hasn’t read the papers or isn’t ready or it doesn’t quite feel like they want to decide things right now. I think that sometimes judges forget the incredible emotional and financial toll that that takes on people.
And again, that goes to this diversity of experiences show I was talking about earlier. And so the one thing I think I would change is I look for ways to get judges a little bit out of the ivory tower that they’re in and, you know, give them more opportunity to be around, you know, small businesses, you know, average working people just to kind of understand.
Yeah. And get reacquainted with what that’s like, you know, to not shoot and not be sure where your next paycheck is coming from. And when that paycheck comes in, how much of it you’re going to have to pay your legal fees. And I think that if judges were to become a little bit more compassionate and understanding and empathetic about that, I think that the legal system would be a little bit better. You know, I’ll tell you this Louis that I’ve had [00:19:00] clients who’ve won and I’ve had clients who’ve lost. And a client loses their case if they feel that they had a judge who understood them, who heard them and who did the hard work needed to decide their case, to the best of their ability, those clients were satisfied, even if they didn’t get a winning result.
And so I think what I’d like to see and what I would change is just making sure that we remind our judges that that’s exactly what it’s about. It’s about hearing people, understanding them, giving them their say, and putting in the hard work to decide the cases in the best way that one can.
Louis Goodman: Do you think the system is fair and the dispenses justice?
Mark Fickes: You know, I think overall in the majority of cases that I’ve handled in my life, I think that the right result came about. I think I can count on one hand cases where I thought that there was a miscarriage of justice. Having said that I do think that there are systemic challenges in the justice system.
Particularly in the [00:20:00] criminal justice system. And, you know, I think that it can lead to a perception that the system is not always fair, but I’ve also seen a justice system that is evolving and growing to meet those challenges. You know, when I first started practicing law we didn’t have way much by way of drug courts or mental health courts or really court systems that looked at ways of looking at the root causes that bring people into the criminal justice system, for example, and rather was more focused on punishment.
There’s a law, you broke it, you get punished. I think that the system has evolved and looked at the ways in which substance abuse and addiction and mental health can bring people into the system and tries to address some of those problems.
Louis Goodman: You’ve been in a very long-term relationship with your partner, and now husband. I’m wondering if you tell us a little bit about what your family life is like?
Mark Fickes: Well, you know, my family life. Um, it is, I think it’s pretty much like everyone else’s. [00:21:00] I think the only difference is that my husband and I were together for about 20 some odd years before we could legally get married. Which is not always the way it works for people, but you know, what can I say?
We have a son and a daughter of who are sophomores at Oakland Tech. And I think our family life is just like anyone else that has two teenagers. There are days that are incredibly great and everyone’s doing really well. And there are days where we have to cantankerous teens who are twins. Wait, so there’s a lot of competition that goes on there.
Louis Goodman: What sort of things keep you up at night?
Mark Fickes: What keeps me up at night? Well, you know, I worry about my clients, you know, my firm, one of the things we pride ourselves on is we are there for our clients 24 seven. You know, I can’t be specific visits sort of in a union context right now, but, you know, I represent an LGBT person of color in the context of a work situation where they’re injuring a lot of [00:22:00 harassment and retaliatory behavior. And you know, when they write me notes about their pain and about that experience, I spent a lot of time at night thinking, you know, how am I going to make this ride?
Louis Goodman: Let’s say you and your husband came into some real money, a couple of billion dollars, what, if anything, would you do different in your life?
Mark Fickes: What would I do different? Well, I often get asked whether I would retire. My husband asks me that question, what I’m going to get him to do with our lottery winnings when they come in. I, you know, I got to say, I’m one of those people, like I have to work. And I think that everyone in my family would hate me if I were to retire too young,.
Louis Goodman: Let’s say you had a magic wand and you could change one thing in the world and the legal world or the world in general. What sort of thing do you think you would want to change?
Mark Fickes: I think that if I could change only one thing I would like to change the situation for the unhoused that we see [00:23:00] here.
You know, I’ve been living, I’ve lived in my same house in Oakland since 1992. And I see the tent communities that have popped up under every freeway overpass. I used to commute when I was taking Bart to the city out of West Oakland and seeing the 10 communities that have cropped up there.
And I just think it’s a tragedy and I think it’s something that we, as a society, all bear responsibility for. So I think if I could change just one thing, it would be that I believe that housing for everyone is so fundamental to everything else from mental wellbeing to physical wellbeing, to being able to work that I would love to be able to change that and be able to find a place for everybody to live, because it’s just, it breaks my heart when I see it every day.
Louis Goodman: Mark, thank you so much for joining me today on Love Thy Lawyer. I’ve really enjoyed talking to you and hearing about your career and your judicial [00:24:00] aspirations, and I wish you the best of luck in all of it.
Mark Fickes: Louis, thank you so much. I have started listening to your podcasts more and more, and I really enjoy what you do.
I think you’ve got a great thing you’ve put together here and I just really want to thank you for giving me an opportunity to be a guest on your podcast. Thanks so much.
Louis Goodman: That’s it for today’s episode of Love Thy Lawyer. Many thanks to my guests who have contributed their time and wisdom to make the show possible.
Thanks as always to Joel Katz for music, Brian Matheson for technical support and Tracey Harvey. I’m Louis Goodman.
Mark Fickes: I feel a moral obligation to do right by the people that help me do the work that I [00:25:00] do. And I want to make sure I live up to that obligation by providing for them as best as I can.