James H. Fleming

Education

1956-1960 Marblehead High School, Marblehead, MA
1960-1964 US Air Force Academy, BS, Humanities
1964-1968 University of Southern California Law School, JD

Employment

1964-1966 Space and Missile Systems Division, Procurement Staff Analyst
1967-1968 Space and Missile Systems Division, Assistant Procurement Officer
1968-1969 Space and Missile Systems Division, Assistant Staff Judge Advocate
1968-1969 Lecturer in Law, University of Southern California Law School
1969-1975 Associate, Adams, Duque & Hazeltine, Los Angeles
1975-1977 Partner, Adams, Duque & Hazeltine, Los Angeles
1977-1989 Managing Partner, Executive Committee, Adams, Duque & Hazeltine, San Francisco
1989-1995 Seyfarth, Shaw, Fairweather & Geraldson, San Francisco
1995-1998 Managing Partner, James H. Fleming & Associates, San Francisco
1998-2004 Managing Partner, Fleming & Phillips LLP, Walnut Creek
2005-2007 Partner, Reed Smith LLP, Oakland
2008-Present Counsel, Reed Smith LLP, Oakland

Pro Bono Service

Current:
San Francisco Superior Court, Temporary Judge
State of California, First and Second District Courts of Appeal, Mediator
Bar Association of San Francisco, Early Settlement Program Mediator
United States District Court, Northern District of California, Early Neutral Evaluator
United States District Court, Northern District of California, Mediator
Fellow, American Bar Foundation

Previous:
San Francisco Superior Court, Special Master
American Arbitration Association, Arbitrator
Pacific Coast Stock Exchange, Arbitrator
State Bar of California, Disciplinary Counsel

Early Days

I grew up in Marblehead, an historic little town on the seacoast of Massachusetts which asserts a disputed claim to be the birthplace of the American Navy. I read every sea story the Marblehead Library had to offer and spent most of my free around the water. My interest in both boats and airplanes led to building display models, especially the aircraft of World War II. I played football and hockey and skied when possible. School came easily for me and I was casual about my studies, earning gentlemanly B's most of the time. Fortunately, multiple choice tests also came easily, a knack which was to prove useful. In Junior High School, we were required to write career papers. I chose to write about becoming a lawyer.

Hopes of Annapolis Dashed

When it came time to think about college, I recalled a previous ambition to go to Annapolis. At some point, that morphed into an interest in naval aviation, which I explained in my application to my Senators Leverett Saltonstall and John F. Kennedy and my Congressman, William Bates, for a slot at Annapolis .

Saltonstall and Kennedy sent polite rejection letters. Congressman Bates had me take a civil service test at the Salem Post Office, on which I did pretty well but not well enough, apparently, to win one of the coveted Annapolis slots. Little did I know then that Annapolis was regarded, at least in one corner of Colorado, as second rate to West Point and therefore third rate to USAFA. In fact, I knew remarkably little about Annapolis, West Point, USAFA, the Air Force, the military and just about everything else which would come to be of importance to my life. I had two uncles who served in World War II and one who had served in World War I, but none of them talked about it very much. Indeed, saying nothing about difficult subjects was a consistent family trait, to the extent that my genealogy more than two generations back on both sides of the family tree remains a persistent mystery.

My silver medal on the civil service exam seemed to be the end of my academy ambitions and I focussed on other schools. I was accepted to Cornell, but never been there, and Brown, perhaps to play some football, but I had only the vaguest idea of what else I might be doing there. More important were subjects close to the heart of graduating seniors of my era: beer, girls, cars and rock and roll. Thus, it came as quite a surprise when Congressman Bates or, more likely, one of his staffers, remembered my comments about naval aviation and sent me a telegram suggesting a stint of flying with the Air Force, starting at USAFA.

Getting to USAFA

At this point, I knew next to nothing about USAFA, but nevertheless took the next step and reported for further testing at Westover Air Force Base near Springfield, MA. I had played football and hockey in high school so I was in pretty good shape, so I thought, but I later came to learn that our little town was far behind the times for athletic training. Still, I was able to cobble together enough shuttle runs and chin-ups to meet the physical requirements and whatever questions the psychiatrist asked did not reveal any lurking character flaws (wrong questions, Doc).

Overall, I did well enough for Congressman Bates to come through with an appointment, so I was faced with deciding between Brown and USAFA. Money for Brown, I assumed, was an issue, although my parents never shared that subject with me in any detail.

My father was a small-town podiatrist long before professional athletes had podiatrists on their payroll and my dad often took payment in kind - chicken, steaks, homemade quilts or preserves - instead of money. Suffice to say that I was pretty clear that sending me to Brown would be at least a burden if not an outright hardship. Moreover, the idea of going to school most of the way across the country was an exciting and novel prospect. I did not know anyone who had done that.

Indeed, I had been out of New England exactly once, to New York, where I enjoyed the unexpected pleasure of legally buying beer at 18, which was unheard of at home, where my drinking was enabled mostly by a senile and visually-impaired bartender at a decrepit seacoast hotel. So I accepted Congressman Bates's appointment with relatively little thought and even less information. I do not recall conceiving that I was theoretically committing to a life in the Air Force. It still amazes me that I made what turned out to be a life-changing decision with so little to go on. Today, an hour with a computer would yield twenty times the background.

Almost immediately after accepting the appointment, I went through high school graduation. I got some awards, mostly indicative of potential, not achievement, because I had generally been satisfied with gentlemanly B's and had avoided any serious academic performance. I backed into the hockey team MVP, after most of the other seniors had been kicked off the team for low grades, fighting, or attempting to injure other players or, in one case, shooting a puck at the penalty timekeeper who had a particularly edgy way of reminding a penalized player of the extent of his transgressions. So my MVP was a somewhat tarnished crown.

Off to Colorado

Less than a month after high school graduation, I, a purported budding pilot, boarded my lifetime-first airplane flight at Logan Airport, en route to Stapleton Field in Denver. After overnighting at the Brown Palace Hotel, I boarded a USAFA bus in Denver and disembarked at the Academy, totally unprepared for the waiting maelstrom. I remember people yelling at me, other people shaving off my hair and loading me with fatigues and other duffel. I know it was a long and bewildering day, but I have no clue what else went on. I have not experienced the fog of war but the fog of the first day at USAFA left me completely bewildered.

I am sure I had a Doolie Summer roommate, but I could not tell you who he was. The Squadron Commander was Sam Hardage (make that Sam Hardass), who later became a successful hotel developer in San Diego and a very charitable and good man indeed. Most of Doolie Summer is a blur, highlighted by PT, shoeshining, pushups, obstacle course and Survival Training. I can still recount our survival supplies: ¼ parachute, ¼ rabbit, ¼ pound of beef, and one arctic ration pack. I remember killing and eating the rabbit the first night, and making the beef into jerky. John Sowers from Oklahoma was very helpful about the unfortunate rabbit and I still know how to make a piece of jerky last a very long time. I still remember how good those disgusting pemmican and cereal bars tasted after going hungry for several days. And I remember running down the mountain after our week of training.

We got our prop and wings and I was assigned to 10th Squadron, where I stayed for the next four years. My first roommate was Al Hertzberg, a military brat from Montgomery, Alabama. Al was a good student, especially in math and science classes, whereas my strengths tended to be in history, English and language studies, so we made a good team, at the top of our Doolie class for the squadron. We would scour the paper daily for current events to recite at the dinner table, a prerequisite for any hope of an uninterrupted meal. I can recall Al telling me about some issue involving Martin Luther. Coming from lily-white Marblehead, I assumed he was talking about the historic dissident German cleric and not Dr. King, the civil rights leader. Anyway, Al and I muddled through our first semester and we were all left behind to the worst Christmas most of us had ever spent. Some of us took it out in partying, when we could. I remember one Doolie named Tom True who had trouble standing up after a close encounter with a bottle of Country Shark. Tom was a very good guy, son of a West Point grad, class of '41, one of the few Second Lieutenant survivors of World War II. Tom didn't make it through to graduation, a victim of academic discrimination. Other 10th Squadron guys who did not make it to graduation included Dean Steuer who came from Sausalito, near where I live now, and Frank Estes, who was recruited for the football team. I floored Frank in Doolie boxing class with an accidentally-successful punch but Frank never retaliated, thankfully. I remember Frank Davis, who left just before graduation and died pretty soon after leaving.

I also remember and recognize a lot of guys who didn't make it through the war – Frank Packer, Dave Risher, Hank Smith, and J.D. Smith. Dave was my roommate for one semester. He was scary smart – just about the youngest guy in the class and never studied, just never. He had gout, which got him out of a lot of parades. I have it now but I go hiking all over the world. As I said, Dave was smart.

Pretty soon after Doolie Christmas, I got a new roommate in place of Al Hertzberg, one who was in academic trouble. My grades suffered from the change. Coupled with my first Colorado winter, I was in a real funk, especially about the Fourth Class System, but I managed to stay on the Dean's List. The summer field trip was a great change, especially with it ending up at Pease Air Force Base in Maine, not far from my home town.

The highlight of Third Class year was to be the presidential inauguration parade for my former Senator, except that the weather turned really nasty, starting with the failed heating system in our C-130B that wandered all over the East Coast looking for a place to land. Our summer barracks at Fort George Meade was not much of an improvement, with thumb-sized gaps in the siding, nor was the frigid weather for the parade. I went from a rejection letter from President-to-be Kennedy to ankle-deep slush for his parade. Somewhere along the route of march, I became a lifelong Republican. My parents had come down to Washington for the ceremony and took me and my then-roommate Roger Head to dinner at the Bethesda Country Club. I recall that dinner as being the only time I was warm on the entire trip. Roger is another good friend gone, lost to melanoma at about 50.

I wasn't much of a cadet, to tell the truth, not when it came to the military program. I did not like the marching and drill and inspections. I just did not see the point of it. In retrospect, I get it that shared hardship is seen as a means to build esprit de corps, but it affected me the opposite way – at the time, it made me resentful and not proud of what I was doing.

Sports and academics were a different matter altogether. The sports program was the best and the academics weren't far behind. I played football, squash, judo and wrestling. Academically, I struggled a bit with the engineering and sciences and I can still get lost reading a map, but the history and language studies more than made up for it. I took as many overloads as I could, all in the English and History Departments. For that, I got the Nordhoff and Hall Award at graduation. It still sits on my dresser.

By the time we took physical exams in our First Class Year, it turned out I was physically disqualified for flying – excessive sitting height (no doubt caused by that Doolie posture training) and a failed red lens vision test. Truth to tell, I was not too disappointed. I had always harbored thoughts of law school and, for an alternative to an Air Force career, I was pretty sure I would need a paying occupation.

Air Force Career

I researched night law schools near Air Force bases and commands that were amenable to wet-behind-the-ears Second Lieutenants. USC and Systems Command turned out to be the best bets. Los Angeles Air Force Station became my home for the next five years, with some TDY stops in Amarillo and Wright-Patterson for procurement training. The procurement officer assignment turned out to be pretty undemanding, but it left me able to bolt down a fast dinner and head downtown for a couple of hours of classes. I was working with four senior civil service employees in the Procurement Review Committee at Space Systems Division in El Segundo, on the southwest side of Los Angeles. It do not seem to have much to do with the Air Force.

By this time, I had acquired a wife, Areta, and pretty soon a child, Heather. At first, Areta did not have a California teaching credential although she was licensed in Missouri and Colorado. And with a baby at home, she could not work, so we thought in those days. Trying to support a family in Los Angeles and finance a law school education, all on a junior officer's pay, was challenging to say the least. Still, I was doing pretty well in school and had become an editor on the Law Review.

I rotated out of the Procurement Review Committee to the Manned Orbiting Laboratory (MOL) System Program Office. The MOL was intended to launch a couple of pilots into space for a month at a time, competing with NASA for a role in space. For a while, my military duties became more interesting as I tried to synthesize all of the moving parts of a massive undertaking for an early PERT analysis. Then I got assigned to a second program in addition to my day job, making me way too busy. In addition, I developed major concerns about the viability of the MOL program, to the extent that I became convinced that Robert McNamara – aka Mac the Knife – would cancel the program as soon as he saw what was going on, jeopardizing my tenure in Los Angeles and perhaps delaying the completion of my law degree. The program cancellation prediction, anyway, later turned out to be accurate.

By then, I had applied for a leave of absence to finish school. My wife got a provisional teaching credential and a job teaching in an elementary shool on the edge of Watts which lasted until until our son Scott decided to join our budding family. We stretched our savings and I scored a scholarship and some GI Bill benefits, making it through to a JD in 3 ½ years. For graduation, my wife presented me with our third and last child, Melanie. I returned to active duty just after we cashed our last savings bond and ran completely out of money. Those three children are now grown, with families if their own. Each of them has taken a different path and I am very proud of them all.

Learning to Practice Law

Back on active duty, I became an Assistant Staff Judge Advocate, working for Colonel Carroll Kelly who came from Salem, Massachusetts, the town I was born in. His sister was a patient of my father's. Col. Kelly was a great guy, but his shop had civilian lawyers to handle the hairiest contract problems, making it a pretty sleepy place for the military lawyers. Since our base had almost no enlisted personnel, our legal duties were confined to investigating errant junior officers for administrative discharge. Col. Kelly was also a realist. When I was unable to persuade the personnel folks to give me an assignment other than Los Angeles, he counseled me to look for other opportunities.

Again, having done well in law school and being in a major growth area for lawyers, I had some good offers. Looking forward to more arbitrary treatment by Air Force Personnel, I took one. In 1969, I became a junior associate at Adams, Duque & Hazeltine in Los Angeles, a blue-stocking bastion of old Pasadena money. While I did not exactly fit the social profile, I could do the work and attempted to climb the social ladder. Not my first choice, I became a litigator representing major financial, insurance and business firms. Consumerism was getting popular so I specialized in procedural maneuvers designed to minimize exposure to populist juries. In time, the firm made me a partner and offered me the challenge of starting a branch office in San Francisco. We had already been looking for a bigger house, but without much success in the Los Anglels megalopolis. Suffice to say that the opportunity to move to San Francisco was welcome.

We moved to Orinda, a small suburb near Berkeley, basing our choice on the school system, which indeed provided outstanding academic and sports programs for our three children. My law practice did well too, after some initial growing pains. However, by the time the kids were off to college, my office had outgrown the parent firm and I had outgrown my marriage. Both things came unglued at the same time, making for some tough economic and personal times for me. I moved to a new law firm, Seyfarh, Shaw, Fairweather & Geraldson, which was not a good personal fit but did provide the financial wherewithal to pay for an expensive divorce, including three or four sets of lawyers and cpa's. For the second time in my post-graduation career, I was financially wiped out, but, like Wilkins Micawber in David Copperfield, I had an optimistic expectation of better fortune.

Changes for the Better

Just after the end point of the divorce process, I met someone new, Jessica Capps. Jessica had been working in construction management, most recently bidding out an expensive subdivision on one of the golf courses at Silverado Country Club in Napa. I was working on a major subway construction lawsuit in Los Angeles, so we had a lot to talk about. At first, we went on bike dates, then dinner dates and finally a weekend date that sealed the deal. Jessica and I have been together ever since, getting married along the way.

After six years at Seyfarth, Shaw, I had “differences with management”. Management thought my practice was not sufficiently profitable. I thought it was the most profitable in the firm, backed up by a pro forma analysis performed on a $6 trial copy of QuickBooks. Obviously, one of us was right and one was wrong, so I left to start my own shop. I took six lawyers with me. Jessica invested the New Kitchen Fund and came on board as my business manager. Her business background and financial acumen proved invaluable.

Differences with management have been a bit of a pattern for me. I struggle with the separation and then take the split as a challenge to prove that I was right and they were wrong. This time was no different and 1995 was a good year to make that move. The planets aligned, the clients came in the door and the courts, for once, recognized the truth and veracity of everything I had to say. QuickBooks, it turned out, was right.

James H. Fleming & Associates and its successor Fleming & Phillips LLP, had a great ten-year run, a small firm representing big clients. Jessica was not only the business manager, bearing responsibility for all of the no-professional functions of the office, including accounting, IT and HR. I was the managing partner and my partner Bo Phillips blossomed into a terrific rainmaker. What we did wrong was not develop a succession plan. When I started looking forward to turning 65, our lease came up for renewal. The landlord was seeking a substantial committment but Jessica and I were unwilling to accept the huge contingent liability of a long-term lease unless we were running the show, but that meant me working into my 70's, another unacceptable proposition.

The resolution of our planning quandry was a merger, with 18 lawyer Fleming & Phillips LLP joining forces with 1800 lawyer Reed Smith LLP. I negotiated a retirement trajectory, with me turning over clients and developing a pro bono mediation and arbitration practice. During my active career as a lawyer, I had always done some form of pro bono work and found the cases to be personally rewarding and enjoyable. Continuing that activity over the last three years, I have become a Temporary Judge for the San Francisco Superior Court and a mediator for the Superior Court, the U.S. District Court and the First and Second District Courts of Appeal. It has gotten to the point where I may have to resign from some volunteer activities to leave more room for fun.

I have a lot of hobbies. Reading, of course, I play mediocre golf and more mediocre ukulele and have built a new shop for woodworking, a lifelong avocation. Jessica and I belong to a hiking club. We travel and hike all over the Bay Area and California, as well as in some of the most beautiful parts of the world. Our travels have included to Australia, New Zealand, Italy, Africa, Canada, Argentina, Brazil (Patagonia), Costa Rica, Ireland, Spain, France, Austria, Sicily, Japan, Fiji, Mexico, Bonaire and Scotland.

Looking back, I am profoundly grateful for that remarkable military education, delivered at fire hose speed, and for the friends I made in my years at USAFA. In retrospect. I know that all of the academic, military and sports pressure was worthwhile. Indeed, the innate confidence you get from knowing you can do thermodynamics or run an obstacle course or do a full year as a fourth class citizen has been of repeated benefit in my later academic and professional life.

I have had my share of ups and downs, but USAFA taught me that I could handle whatever came down the road. There are lots of things which I could regret, but I sure can't complain about how it all turned out.

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