My Legal Career Set Straight

People who have listened to The Kids of Rutherford County podcast have told me they barely recognize the version of me discussed on the show. I suspect this confusion arises because I enter the show brazenly describing myself as “drunk in court” and then the podcast leaves me as one more poor schmuck stuck in the quicksand of juvenile court because my demons had imprisoned me, until young Wesley Clark lit my fire to help him fight the system.

The character from the podcast could not have done what I did with Wesley. The podcast story is fun and flashy, but the real story really took years to unfold.

In reality, by the time I met Wesley in 2014, I had been sober for half a decade and recovery allowed me to work hard, take chances and become a really good lawyer. I describe my struggles with alcoholism in another section, and I think that’s an important story to tell too. In this section, I describe my background academically and professionally. I hope it does not come across as puffery, but instead shows that sober alcoholics can do great things, and that learning to be a good lawyer is not magic. It really does take time, hard work and help.

I am a local boy who grew up in Nashville. I graduated from Hume Fogg Academic, one of Nashville’s two high schools for especially talented students, in 1993 and was a National Merit Semi-finalist. I was class president and the Metro Nashville Lincoln-Debate and overall Forensics League champion all four years of high school. I attended Xavier University in Cincinnati, Ohio and graduated as a magna cum laude University Scholar in three years. I continued directly to the University of Tennessee College of Law where I graduated in the top 10 of my class, Order of the Coif (a national law honor society) with several awards for academic excellence because I received the highest grade in several courses, including constitutional law and trial practice. On paper, it sure looked like I was bound for great things and was built for law.

However, I developed a drinking problem in law school that limited my job opportunities. My issues with alcohol delayed my law licensure so I took a low paying job working for a smaller firm in Murfreesboro, Tennessee. Welcome to Rutherford County, Tennessee.

The upside of the lower paying, lower prestige job was that I hit the ground running with exposure to a variety of cases requiring hands-on, often in-court work that is not typically available to new attorneys at the larger firms where a lot of people with my academic resume land. To keep me busy and help me gain experience, the firm allowed me to take appointments in the juvenile court that the State and County had just officially formed. I met Donna Scott Davnport in 2000 and saw that, like everyone else, she was learning and creating the juvenile court system on the fly. Nobody knew what they were really supposed to do, and nothing seemed really guided by law; rather, instinct and vague declarations of what was in “the best interest” of children ruled everything. None of us really knew what the hell we were talking about.

I gained experience quickly but wanted more challenge and opportunity, and honestly more money, and to be closer to home, so I found a new job in Nashville just 18 months later. In 2001, I went to work at a medium-sized firm in downtown Nashville (it would be considered a small firm in 2023). There I worked on more complex cases and learned more about the civil litigation process. This firm included a litigation section that mostly represented clients through their insurance companies (car insurance, worker’s compensation, etc.). I worked mostly on the litigation side. I did not love working for insurance companies but had great respect for the lawyers I worked with at the firm, and over time I was given more opportunity. I sobered up for a couple of years and, under the supervision of a great, more experienced lawyer, wrote a successful brief for and was admitted to practice before the United States Supreme Court. In that case I employed constitutional arguments that would later come into play in the cases discussed in the podcast.

The podcast correctly describes me as drinking myself out of my job at Watkins. After almost two years of sobriety, I relapsed and renewed drinking in late 2006. I declared myself the Law Office of Mark J. Downton. The office was in my home. I began accepting appointments to the juvenile court in Rutherford County, as well as representing impoverished people through free clinics I provided through Legal Aid.

In 2008, a high school friend tried to help me by giving me a chance to work for the new firm he had just formed. I continued to handle juvenile court cases but planned to wrap those up and work with my friend to build his firm. Then my long-term girlfriend died and my drinking problem expanded. This is when, upon reflection, I think “I was drunk in court” as quoted in the podcast (another section contextualizes that quote and explains the distortion). My friend had to fire me when I got a DUI and lied to him about it. These were dark times. So I was back to being The Law Office of Mark J. Downton, relying on work from the juvenile court to keep me afloat.

I practiced law in the Rutherford County Juvenile Court as an active alcoholic from late 2006 until early August of 2009. When I returned to the juvenile court in late 2006, it had blown up and had already become the factory system you hear a little about in the podcast. Cases seemed predetermined and legal acumen of little value. I was in a bad place, so a system that did not reward effort or skill seemed perfect for an active alcoholic. But I could not persist in that way of life.

In August 2009, I became sober and my career quickly changed. I continued to work in juvenile court, but engaged and challenged the child welfare system routinely. The podcast makes it sound like I was just another complicit lawyer who went along with an illegal system for years. This is untrue in multiple ways. First, I rarely represented juvenile delinquents, as I mostly represented children or parents in the foster care system. Second, I did not accept the injustices of the system in which I worked. Unlike most juvenile lawyers, I did not routinely take deals. I forced the State to hold hearings at most stages of litigation and was one of only two lawyers willing to handle appellate work. I routinely called the court out for unconstitutional practices for years (the podcast makes vague mention of this) and even met with the Commissioner of DCS to discuss a class action lawsuit I had drafted challenging the constitutionality of some of its foster care practices. This meeting occurred years before Wesley Clark entered the scene. Well before Wesley Clark arrived, I was either the best or one of the best lawyers in the juvenile court. I routinely won cases and restored families. DCS began avoiding hearings with me and would reunify families without hearings. Again, I rarely worked delinquency cases, so I was not aware that the system routinely arrested and jailed kids unlawfully. In one of the few juvenile cases I did work, I filed a Petition for Habeus Corpus on behalf of a detained youth to gain his immediate release challenging the pretrial detention process. I know of no other lawyer in Tennessee who has done this on behalf of a detained juvenile. That Petition resulted in that kid’s release and led to mandatory representation of all youth at pretrial detention hearings which is how Wesley and I came to see what was happening. My actual development as a skilled juvenile court lawyer is not discussed in the podcast.

Off and on from 2010, I also worked in document review for an e-discovery company in Nashville. E-discovery is the review of documents kept on computers. The need for e-discovery usually results from big cases, like government investigations of giant corporations, clashes between big companies or, you guessed it, class action lawsuits. It represents another area of the law that is not prestigious, but that work exposed me to complex litigation of multiple types, including class actions, and gave me the skill to review huge volumes of evidence. Both the complex litigation and document review skills would prove absolutely essential for the cases that are discussed in the podcast.

The podcast paints a picture of me as stuck in juvenile court on the “bottom rung” but that is not true. As soon as I became sober, I branched out and began litigating cases in state and federal court for average people. For instance, I successfully represented a visually impaired woman who was discriminated against at her workplace. I litigated other employment discrimination cases. With the ACLU, I successfully represented a teenage girl whose school humiliated her for publicly speaking about being gay. These cases were typically in federal court and provided experience of the mechanics of federal court that would prove essential for the class action cases featured on the podcast. All of these cases occurred before the class action cases. In 2016, the ACLU named me one of their “Faces of Freedom” for my work fighting for the civil rights of youth.

Perhaps most notably, with a close friend who was also an experienced and skilled lawyer in recovery, I successfully litigated a qui tam False Claims Act case that resulted in a settlement of $10 million in 2013. The case involved abuse of youth at a treatment center that had been taken over by a large corporation. After years of litigation, the corporation eventually settled the case when it was discovered that they had engaged in a scheme to bill different agencies of state government for the same services or medications. The case was highly technical, complex and politically fraught (the corporation was backed by Mitt Romney, who was running for president while the case was litigated). I received a large attorney fee award as a result of this case and began to phase out my juvenile court work.

So, while the podcast implies that I met Wesley as just another attorney wearing a wrinkled suit because I was stuck in the “bottom rung” of law practice as an incorrigible alcoholic, that representation is false. When I met Wesley in late 2014, I was a successful litigator, mostly in federal court, who appeared in juvenile court because I wanted to continue to serve people well. Before we ever filed the solitary confinement case discussed on the podcast, I was done working in juvenile court. I had a family to care for and had gained the skills to advance large, complex cases. The solitary confinement case is discussed in more detail in another article, but it was exactly the kind of case I had prepared for and hoped to pursue.

This section may seem self-serving, like I am angry that I do not look good enough on the podcast, but that’s not the point. While surely my own pride compels me to defend my career and reputation, more is going on. Take a step back and think about the reality of how law practice must and should work. While Wesley Clark has become a great lawyer, he was not in 2014 when I met him or 2016 when we filed class action lawsuits in federal court. If I was the incorrigible drunk barely hanging on in juvenile court, as the podcast has caused some people to think, I could not have handled the solitary confinement case or the mass arrest/incarceration that flowed from it. Moreover, Wesley would have been an idiot to come to me for help or to decide to work with at all.

Wesley Clark and I did bond over cigarettes, a history of addiction and a mutual disgust over a juvenile system that was clearly broken, but that bond was not one of the young lawyer lighting a fire under the washed up older lawyer. I already had the spark. I also had success, experience and know-how. If I had not been successful, Wesley would not have been drawn to me. His dream was not to be a court-appointed lawyer-he wanted to do what I was already doing.

So while the podcast describes an inspirational young lawyer, it doesn’t tell the whole story. If you review the description of my career, you’ll see that I had paid my dues and learned the ropes before I met Wesley. It was not easy. I also didn’t do it by myself. I had lots of help from other, more experienced lawyers along the way. Young lawyers need help. That’s why we call it the “practice” of law. Older lawyers should actively seek to help young lawyers, especially when those young lawyers are striking out on their own like Wesley was.

The podcast made the “editorial decision” to cast Wesley Clark as an ambitious lawyer savant who immediately became the motivating force initiating class action cases, and for some strange reason decided that making Wesley a hero looked even better if I was a bum. That’s not how it did or should work. Older lawyers lawyers should remain willing to help young lawyers gain experience, instill courage and knowledge and show them that a living can be made helping people, that money and service are not mutually exclusive. That’s what I did with Wesley.

The real story of redemption through sobriety, persistence and mentoring of a young lawyer seems compelling to me. I do not know why The New York Times chose to tell an entirely different story.